This book examines how the International Court of Justice (ICJ) reviews State behaviour through the prism of the standard of review.
It develops a novel rationale to support the ICJ’s application of deferential standards of review as a judicial avoidance technique, based on strategic considerations. It then goes on to empirically assess all 31 decisions of the Court in which the standard of review was at issue, showing how the Court determines that standard, and answering the question of whether it varies its review intensity strategically.
As a result, the book’s original contribution is two-fold: establishing a new rationale for judicial deference (that can be applied to all international courts and tribunals); and providing the first comprehensive, empirical analysis of the ICJ’s standards of review. It will be beneficial to all scholars of the Court and those interested in judicial strategy.
By:
Felix Fouchard (University of Münster Germany)
Imprint: Hart Publishing
Country of Publication: United Kingdom
Dimensions:
Height: 234mm,
Width: 156mm,
ISBN: 9781509971305
ISBN 10: 1509971300
Series: Studies in International Law
Pages: 264
Publication Date: 02 May 2024
Audience:
Professional and scholarly
,
Undergraduate
Format: Hardback
Publisher's Status: Active
Acknowledgements List of Tables Table of Cases 1 Introduction I. Significance of the Standard of Review II. Definition of the Term ‘Standard of Review’ III. Structure of the Book IV. Methodology V. Key Empirical Insights 2 Old Wine in New Skins? I. The Doctrine of Non-Justiciability in the International Order II. State Arguments for a Deferential Standard of Review III. A Common Denominator: the Better-Placed Contention IV. Standard of Review Claims as Old Wine in New Skins? 3 Something New under the Sun: Standards of Review as a Judicial Avoidance Technique I. Judicial Avoidance: Dubious from an Orthodox Point of View, yet a Practical Necessity II. Pronouncements Serving as Merits-Avoidance Techniques III. Pronouncements Serving as Issue-Avoidance Techniques IV. Deferential Standards of Review as a Judicial Avoidance Technique 4 Absence of Judicial Oversight I. National Security Interests II. Domestic Matters III. Political Determinations IV. Scientific Determinations: Explicit Rejection in Whaling V. Conclusion for the Absence of Judicial Oversight 5 Good Faith I. A Textual Basis for the Application of the Good Faith Standard II. Good Faith Standard as Counterbalancing: Bosnian Genocide III. Conclusion for Good Faith 6 Reasonableness I. National Security Interests II. Domestic Measures III. Political Determinations: Conditions of Admission to the UN IV. Scientific Determinations V. Conclusion for Reasonableness 7 De Novo I. National Security Interests II. Domestic Measures III. Political Determinations IV. Scientific Determinations: Whaling V. Conclusion for De Novo 8 Conclusion I. De Novo as the Court's Default, but far from Constant Standard of Review II. Rarely Autonomous Adoption of a Deferential Standard of Review III. Mostly Stricter Standard of Review than Invoked by the Respondents IV. Subject-Matter as a Factor for the Adoption of a Deferential Standard of Review V. Strategic Use of Deferential Standards of Review Bibliography
Felix Fouchard is Research Associate at the Chair for Public Law, International Law and European Union Law at the University of Münster, Germany.
