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Books > Law > International law > Settlement of international disputes > International courts & procedures
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Deference in International Courts and Tribunals - Standard of Review and Margin of Appreciation (Hardcover)
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Deference in International Courts and Tribunals - Standard of Review and Margin of Appreciation (Hardcover)
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International courts and tribunals are often asked to review
decisions originally made by domestic decision-makers. This can
often be a source of tension, as the international courts and
tribunals need to judge how far to defer to the original decisions
of the national bodies. As international courts and tribunals have
proliferated, different courts have applied differing levels of
deference to those originial decisions, which can lead to a
fragmentation in international law. International courts in such
positions rely on two key doctrines: the standard of review and the
margin of appreciation. The standard of review establishes the
extent to which national decisions relating to factual, legal, or
political issues arising in the case are re-examined in the
international court. The margin of appreciation is the extent to
which national legislative, executive, and judicial decision-makers
are allowed to reflect diversity in their interpretation of human
rights obligations. The book begins by providing an overview of the
margin of appreciation and standard of review, recognising that
while the margin of appreciation explicitly acknowledges the
existence of such deference, the standard of review does not: it is
rather a procedural mechanism. It looks in-depth at how the public
policy exception has been assessed by the European Court of Justice
and the WTO dispute settlement bodies. It examines how the European
Court of Human Rights has taken an evidence-based approach towards
the margin of appreciation, as well as how it has addressed issues
of hate speech. The Inter-American system is also investigated, and
it is established how far deference is possible within that legal
organisation. Finally, the book studies how a range of other
international courts, such as the International Criminal Court, and
the Law of the Sea Tribunal, have approached these two core
doctrines.
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