Dothan: Standards of Review in International Courts

Shai Dothan (Univ. of Copenhagen - Law) has posted Standards of Review in International Courts (in Research Handbook on Accountability for Human Rights Violations, Kristin Henrard & Michelle Duin eds., forthcoming). Here's the abstract:

International human rights courts review applications brought before them by victims and these courts need to determine whether the facts they describe constitute violations of human rights norms. They fulfill this task in a world of scarce resources, under a potential threat of backlash, and without being immune from error. The decision processes of human rights courts like the European Court of Human Rights (ECtHR) take these conditions into account. Not all cases are treated the same way. The margin of appreciation doctrine allows the ECHR to defer to some state actions, and this margin can be narrowed or widened by the court. This is a doctrine of subsidiarity: it allows the ECHR to defer in some cases and intervene in others. Similar doctrines are available for other international courts. For example, the Court of Justice of the European Union (CJEU) adopted a similar doctrine of deference. There are also cases in the Inter-American Court of Human Rights (IACtHR) and the African Court of Human and Peoples’ Rights (ACtHPR) that follow the ‘margin of appreciation logic’. Even the United Nations Human Rights Committee (UN HRC) that officially rejected the margin of appreciation doctrine has ended up using similar legal techniques. The literature has investigated different ways to adjust the margin of appreciation to the standards of review that are proper in particular circumstances. Among the techniques investigated in this chapter are widening the margin of appreciation when the procedures of adjudication and legislation in the state have been adequately conducted and narrowing the margin in cases that involve a potential democratic failure — situations in which social groups are expected not to have sufficient power in representative bodies. The chapter will discuss the normative desirability as well as the political feasibility of different techniques and some criticism on the ways in which courts have applied these techniques in the past.