Call for papers
Standard of Review in International Courts and Tribunals
Rethinking the Fragmentation and Constitutionalization of International Law
26-27 October 2012
Sponsored by:
COST Action IS1003, International Law Between Constitutionalization and Fragmentation
http://www.il-cf.eu
and
University of Seville
Faculty of Law
The fragmentation of international law is conventionally studied in terms of
compartmentalization of different sets of norms created within specialized legal regimes.
However, this phenomenon may be also approached from a different perspective, which
concentrates not so much on substantive rules but on methodologies used by specific
international courts, tribunals or other supervisory organs. One of the recurrent questions
these bodies are confronted with regards the assessment of measures taken at the national
level. These measures often involve highly political or scientific questions that are not always
easily translated into the language of international law. By developing detailed testing
methods for assessment of states’ conduct, supervisory organs can weaken (if their methods
converge) or strengthen (if they diverge) the fragmentation effects.
The crucial role in this context is played by the applicable standard of review. In practice,
such a standard is rarely determined by the relevant legal provisions (e.g. a treaty constituting
a particular court), and it remains a task of a specific court or tribunal to develop an
appropriate methodology. The concept as such is understood as ‘the nature and intensity of
review by a [international] court or tribunal of decisions [or other actions] taken by [national]
governmental authority’ (Bohanes & Lockhart 2009). The applicable standard of review may
concern either factual determinations (e.g. deciding whether a national measure is supported
by sufficient scientific evidence) or political and legal determinations made at the national
level (e.g. whether a measure is necessary to attain specific objective). Consequently, standard
of review determines the extent of discretionary powers enjoyed by national authorities in
making certain determinations. In theory, standard of review may range from restrictive (or de
novo) review to full deference with many intermediate variations. In some international legal
contexts, it may be also referred to as margin of appreciation that is defined ‘as the breadth of
deference that the court is willing to grant to the decisions of national legislative, executive,
and judicial decisionmakers’ (Burke-White & von Staden 2010).
The deference that is shown by some international tribunals is justified on different grounds.
In general, it flows from the idea that national governments are better placed and have greater
expertise (epistemic superiority) to make policy and factual determinations as compared to
international tribunals. As far as the legal determinations are concerned, this approach also
reflects the recognition that normative requirements in international treaty can be met by a
range of measures that are still within the legal parameters of international obligations
(normative flexibility).
Main questions
This workshop intends to analyze different approaches taken by international courts and
tribunals when confronted with factual, political and legal determinations made at the national
level. The workshop will concentrate on two interrelated aspects: (i) standard of review
applied by international courts to municipal measures (actions) that are based on prior
complex factual determinations and (ii) standard of review applied by international courts to
political decisions that involve trade-offs between different competing values (and
corresponding legal determinations).
The specific questions that we would like to address include:
To what extent different international tribunals operating in different functional regimes
apply the same/similar standard of review when confronted with complex factual issues,
political choices and normative flexibilities?If there are differences, what may explain them? Is specific institutional setting relevant?
Political context? Values that are protected by particular functional system? Or maybe
subject matter of a dispute?If there are similarities, can we identify some meta-norms of constitutional character?
What can explain existing (if any) convergences?What are the consequences of differences (if any) in applicable standards of review used
by various international tribunals? Do they contribute to fragmentation of international
law?Is there uniformity or divergence between standards of review applied by international
courts to factual and legal determinations?What is the connection between applicable standard of review and legitimacy of
decisions rendered by international courts and tribunals?
A non-exhaustive list of international tribunals or other supervisory organs that are of our
interest includes: WTO panels and the Appellate Body, the European Court of Human Rights,
the International Court of Justice, the Tribunal for the Law of the Sea, NAFTA panels,
arbitration tribunals and ad hoc panels under investment treaties, the Court of Justice of the
European Union, the EFTA Court and the Inter-American Court of Human Rights.
Authors of selected papers will be invited to publish their works in an edited volume with a
renowned international publisher. Invitations to contribute to the edited volume will depend
on the quality of the work presented at the conference.
Venue
The workshop is organized by Prof. Dr. Daniel García San José and it will be held at the
Faculty of Law of the University of Seville.
Applications
Applicants should send in a 250-500 words abstract no later than 15 June 2012 to:
Dr. Lukasz Gruszczynski, lukasz.gruszczynski@gmail.com
or
Prof. dr. Wouter Werner, w.werner@rechten.vu.nl
Participants from countries participating in COST Action 1003 can apply for funding for this workshop.
As a rule, COST reimburses a flat rate of €120,- per night for accommodation and travel costs for two
participants per participating country. For more information on COST Action 1003, please check the
website: http://www.il-cf.eu. If you would like to receive COST funding, please attach a short request
(max 150 words) to your paper proposal.