Judicial Deference in International Adjudication: A Comparative Analysis

International courts and tribunals are increasingly being asked to judge matters that are traditionally within the domestic jurisdiction of States. This book investigates how these courts have responded to this question, discussing whether different forms of deference are justified. It proposes a distinction between epistemic deference, based on the superior capacity of domestic authorities to make factual and technical assessments, and constitutional deference, based on the democratic legitimacy of domestic decision-making.

Format: Paperback / softback
Length: 312 pages
Publication date: 24 February 2022
Publisher: Bloomsbury Publishing PLC

International courts and tribunals are increasingly being called upon to adjudicate matters that are traditionally within the purview of national jurisdictions. This trend is particularly evident in the fields of human rights, investment, and trade law, where international adjudicators often assess the decisions of national authorities made through democratic processes and public deliberation. A contentious issue that arises is whether international adjudicators should review these decisions de novo or accord deference to domestic authorities. This book delves into this question by examining how various international courts and tribunals have responded to this dilemma. In addition to a comparative analysis, the book offers a normative argument discussing the justification of different forms of deference 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 rooted in the democratic legitimacy of domestic decision-making. The book concludes that epistemic deference is a prudent recognition of the limited expertise of international adjudicators, while the case for constitutional deference hinges on the relative power of the reviewing court vis-à-vis the domestic legal order.

International courts and tribunals are increasingly being called upon to adjudicate matters that are traditionally within the purview of national jurisdictions. This trend is particularly evident in the fields of human rights, investment, and trade law, where international adjudicators often assess the decisions of national authorities made through democratic processes and public deliberation. A contentious issue that arises is whether international adjudicators should review these decisions de novo or accord deference to domestic authorities. This book delves into this question by examining how various international courts and tribunals have responded to this dilemma. In addition to a comparative analysis, the book offers a normative argument discussing the justification of different forms of deference 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 rooted in the democratic legitimacy of domestic decision-making. The book concludes that epistemic deference is a prudent recognition of the limited expertise of international adjudicators, while the case for constitutional deference hinges on the relative power of the reviewing court vis-à-vis the domestic legal order.

Weight: 474g
Dimension: 156 x 232 x 21 (mm)
ISBN-13: 9781509943463