Deference in International Courts and Tribunals: Standard of Review and Margin of Appreciation

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Lukasz Gruszczynski (Assistant Professor of International Law, Assistant Professor of International Law, Institute of Law Studies of the Polish Academy of Sciences) Wouter Werner (Professor of Public International Law, Professor of Public International Law, Free University of Amsterdam)

Deference in International Courts and Tribunals

Standard of Review and Margin of Appreciation

Lukasz Gruszczynski (Assistant Professor of International Law, Assistant Professor of International Law, Institute of Law Studies of the Polish Academy of Sciences), Wouter Werner (Professor of Public International Law, Professor of Public International Law, Free University of Amsterdam)

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English

Oxford University Press
14 August 2014

International institutions; International human rights law; Settlement of international disputes; International courts & procedures

International courts and tribunals are often asked to review decisions originally made by domestic decision-makers.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.

Edited by: Lukasz Gruszczynski (Assistant Professor of International Law Assistant Professor of International Law Institute of Law Studies of the Polish Academy of Sciences), Wouter Werner (Professor of Public International Law, Professor of Public International Law, Free University of Amsterdam)
Imprint: Oxford University Press
Country of Publication: United Kingdom
Dimensions: Height: 240mm, Width: 162mm, Spine: 32mm
Weight: 1g
ISBN: 9780198716945
ISBN 10: 019871694X
Pages: 464
Publication Date: 14 August 2014
Audience: Professional and scholarly , Undergraduate
Format: Hardback
Publisher's Status: Active

Lukasz Gruszczynski is Assistant Professor of International Law at the Institute of Law Studies of the Polish Academy of Sciences. He is the author of Regulating Health and Environmental Risks Under WTO Law (OUP, 2010). Wouter Werner is Professor of Public International Law at the Free University of Amsterdam. He is a member of the Dutch Advisory Council on Public International Law, and is an editor of the Leiden Journal of International Law and the Netherlands Yearbook of International Law.

Reviews for Deference in International Courts and Tribunals: Standard of Review and Margin of Appreciation

This book contains a diverse collection of essays dealing with the fascinating issue of deference in international courts and tribunals... Gruszczynski and Werner's book provides a welcome and commendable contribution to the issue of judicial deference in international law generally, i.e. beyond the familiar fields of human rights and trade law. * Andrew Legg, The Journal of World Investment & Trade * ...Those with some knowledge of the WTO, EU, ECHR and investment legal regimes are in for a real treat, and will find here a veritable banquet of food for thought...The editors are to praise for taming, to the extent practicable, an intractable topic. * Filippo Fontanelli, EJRR * This book is a welcome first foray into the study of the concept of judicial deference by tribunals to states and other bodies in disparate fields of international law. Providing inspiration for further research is one of the books achievements. Gruszczynski and Werner's book provides a welcome and commendable contribution to the issue of judicial deference in international law generally, i.e. beyond the familiar fields of human rights and trade law. * Andrew Legg, Essex Court Chambers London, The Journal of World Investment & Trade * This book... has a comprehensive scope and, to a great extent, offers a good overview of the varying jurisprudence regarding the degree of scrutiny applied by international courts when reviewing States actions... Indeed, this excellent book provides insightful perspectives on how different international courts proceed to exercise their adjudicating power using standard of review and/or margin of appreciation as instruments for either judicial self-restraint or judicial activism... the book does an excellent job in showing the diversity of approaches adopted by different international courts. * Maria Alcover, World Trade Review *