Intensity of Review in International Courts and Tribunals

Book excerpt: This study provides a comparative analysis of judicial deference in the practice of international courts and tribunals. The descriptive part of the thesis investigates to what extent a range of international courts and tribunals have adopted structural doctrines of deference when evaluating State conduct against rules of international law. The analysis covers six permanent institutions (the International Court of Justice; the European, Inter-American and African human rights courts; the dispute settlement system of the World Trade Organization; and the International Tribunal for the Law of the Sea) as well as investment arbitration tribunals. The normative part of the thesis discusses whether international courts and tribunals should adopt a deferential standard of review when evaluating State conduct. I propose a distinction between epistemic deference, which is justified by the superior capacity of domestic authorities to make factual and technical assessments, and constitutional deference, which is based on the democratic legitimacy of domestic decision-making. I conclude that epistemic deference is a prudent acknowledgement of the limited expertise of adjudicators with regard to non-legal assessments. There is generally no need, however, for constitutional deference in international adjudication, because of the limited impact of international judicial decisions on domestic decision-making. This is different for the human rights courts, whose jurisprudence can have far-reaching implications on any field of domestic public policy, and because an effective integration of human rights in domestic legal orders requires the involvement of domestic authorities in the definition of the scope and content of human rights.