Author : Lukasz Gruszczynski
Publisher : Oxford University Press, USA
Page : 465 pages
File Size : 36,38 MB
Release : 2014
Category : Law
ISBN : 019871694X
International courts use two key methodologies to determine the degree of deference granted to states in their implementation of international obligations: the standard of review and margin of appreciation. This book investigates how these doctrines are applied in international courts, analysing where their approaches converge and diverge.
Author : Grant Huscroft
Publisher : Cambridge University Press
Page : 332 pages
File Size : 22,20 MB
Release : 2008-04-21
Category : Law
ISBN : 9780521887410
What does it mean to interpret the constitution? Does constitutional interpretation involve moral reasoning, or is legal reasoning something different? What does it mean to say that a limit on a right is justified? How does judicial review fit into a democratic constitutional order? Are attempts to limit its scope incoherent? How should a jurist with misgivings about the legitimacy of judicial review approach the task of judicial review? Is there a principled basis for judicial deference? Do constitutional rights depend on the protection of a written constitution, or is there a common law constitution that is enforceable by the courts? How are constitutional rights and unwritten constitutional principles to be reconciled? In this book, these and other questions are debated by some of the world's leading constitutional theorists and legal philosophers. Their essays are essential reading for anyone concerned with constitutional rights and legal theory.
Author : Johannes Hendrik Fahner
Publisher : Bloomsbury Publishing
Page : 307 pages
File Size : 20,98 MB
Release : 2020-08-06
Category : Law
ISBN : 1509932305
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.
Author : David Rudenstine
Publisher : Oxford University Press
Page : 345 pages
File Size : 20,13 MB
Release : 2016
Category : Law
ISBN : 0199381488
The Age of Deference traces the Court's role in the rise of judicial deference to executive power since the end of World War II.
Author : Yuval Shany
Publisher : Cambridge University Press
Page : 185 pages
File Size : 12,95 MB
Release : 2016
Category : Law
ISBN : 1107038790
Offers a new understanding of traditional rules on jurisdiction and admissibility of cases before international courts and tribunals.
Author : Andrew Legg
Publisher : OUP Oxford
Page : 272 pages
File Size : 39,32 MB
Release : 2012-07-05
Category : Law
ISBN : 0191632155
The margin of appreciation is a judicial doctrine whereby international courts allow states to have a measure of diversity in their interpretation of human rights treaty obligations. The doctrine is at the heart of some of the most important international human rights decisions. Does it undermine the universality of human rights? How should judges decide whether to give this margin of appreciation to states? How can lawyers make best use of arguments for or against the margin of appreciation? This book answers these questions, and broadens the discussion on the margin of appreciation by including material beyond the ECHR system. It provides a comprehensive justification of the doctrine, and ALLFSCA14I the key cases affecting the doctrine in practice. Part One provides a systematic defence of the margin of appreciation doctrine in international human rights law. Drawing on the philosophy of practical reasoning the book argues that the margin of appreciation is a doctrine of judicial deference and is a common and appropriate feature of adjudication. The book argues that the margin of appreciation doctrine prevents courts from imposing unhelpful uniformity, whilst allowing decisions to be consistent with the universality of human rights. Part Two considers the key case law of the European Court of Human Rights, the Inter-American Court of Human Rights, and the UN Human Rights Committee, documenting the margin of appreciation in practice. The analysis uniquely takes a broad look at the factors affecting the margin of appreciation. Part Three explores how the margin of appreciation operates in the judicial decision-making process, reconceptualising the proportionality assessment and explaining how the nature of the right and the type of case affect the courts' reasoning.
Author : Stephen B Burbank
Publisher : SAGE
Page : 308 pages
File Size : 37,28 MB
Release : 2002-04-02
Category : Law
ISBN : 9780761926573
This volume is a collection of essays on the contentious issues of judicial independence and federal judicial selection, written by leading scholars from the disciplines of law, political science, history, economics, and sociology.
Author : Theresa Squatrito
Publisher : Cambridge University Press
Page : 471 pages
File Size : 44,70 MB
Release : 2018-04-05
Category : Law
ISBN : 1108425690
Explores the contributions of international courts and tribunals in terms of performance by offering a comparative analysis of international courts.
Author : Eva R. Rieter
Publisher :
Page : 1282 pages
File Size : 25,70 MB
Release : 2010
Category : Law
ISBN :
International human rights adjudicators, while facing urgent cases, have used provisional measures in order to prevent irreparable harm, e.g. to order States to halt an expulsion, the execution of a death sentence, destruction of the natural habitat, or to ensure access to health care in detention or protection against death threats. In the practice of the various adjudicators the traditional concept of provisional measures has undergone a process of humanisation. This book addresses the question how such provisional measures can be made as persuasive as possible. Apart from the Inter-American Court, none of the human rights adjudicators motivate or publish their provisional measures. Yet this book analyses their (best) practices and obstacles, determines the underlying rationale for their use of provisional measures and establishes the core of the concept of provisional measures that all adjudicators have in common. It argues that clarity on what belongs to the core of the concept, and on what does not belong to the concept at all, enhances the persuasive force of provisional measures. The practices of the international adjudicators made accessible in this book may prove useful in the ongoing cross-fertilization occurring among these adjudicators. Moreover, the analysis provided allows individual victims, their counsel, NGOs as well as international institutions to address more effectively urgent human rights cases. About this book: 'Rieter's book is a very worthwhile and sorely needed reference. Overall, the book provides a comprehensive and organized explanation of provisional measures and the bodies that may issue them. Its most important contribution is found in the middle chapters addressing the various situations and kinds of harm previously addressed by human rights tribunals when granting provisional measures, although the practical suggestions to human rights tribunals are also surely welcome. Researchers, human rights defenders and the tribunals themselves will find much in Rieter's volume to strengthen and enrich their work. Ideally, the information it contains will contribute not only to better understanding of provisional measures, but also to coherence in, and progressive development of, this area of the law.' X on internationalhumanrightslaw.org (2010))
Author : Freya Baetens
Publisher : Cambridge University Press
Page : 650 pages
File Size : 42,37 MB
Release : 2021-04-08
Category : Law
ISBN : 9781108725286
International courts and tribunals differ in their institutional composition and functions, but a shared characteristic is their reliance on the contribution of individuals other than the judicial decision-makers themselves. Such 'unseen actors' may take the form of registrars and legal officers, but also non-lawyers such as translators and scientific experts. Unseen actors are vital to the functioning of international adjudication, exerting varying levels of influence on judicial processes and outcomes. The opaqueness of their roles, combined with the significance of judicial decisions for the parties involved as well as a wider range of stakeholders, raises questions about unseen actors' impact on the legitimacy of international dispute settlement. This book aims to answer such legitimacy questions and identify 'best practices' through a multifaceted enquiry into common connections and patterns in the institutional composition and daily practice of international courts and tribunals.
