Judicial Deference in International Adjudication

A Comparative Analysis

Johannes Hendrik Fahner (University of Amsterdam, The Netherlands)

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English

Hart Publishing
24 February 2022

Comparative law; Settlement of international disputes

Series: Studies in International Law

International courts and tribunals are increasingly asked to pass judgment on matters that are traditionally considered to fall within the domestic jurisdiction of States. Especially in the fields of human rights, investment, and trade law, international adjudicators commonly evaluate decisions of national authorities that have been made in the course of democratic procedures and public deliberation. A controversial question is whether international adjudicators should review such decisions de novo or show deference to domestic authorities. This book investigates how various international courts and tribunals have responded to this question. In addition to a comparative analysis, the book provides a normative argument, discussing whether different forms of deference are justified in international adjudication. It proposes a distinction between epistemic deference, which is based on 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. The book concludes that epistemic deference is a prudent acknowledgement of the limited expertise of international adjudicators, whereas the case for constitutional deference depends on the relative power of the reviewing court vis-à-vis the domestic legal order.

By: Johannes Hendrik Fahner (University of Amsterdam The Netherlands)
Imprint: Hart Publishing
Country of Publication: United Kingdom
Dimensions: Height: 234mm, Width: 156mm,
Weight: 440g
ISBN: 9781509943463
ISBN 10: 1509943463
Series: Studies in International Law
Pages: 312
Publication Date: 24 February 2022
Audience: College/higher education , Primary
Format: Paperback
Publisher's Status: Active

Johannes Hendrik Fahner is an attorney-at-law practising at the Dutch bar and a researcher at the University of Amsterdam.