Rights and obligations of States are determined by rules of international law. Indirectly, however, they may be also controlled by specific legal methodologies used by international courts and tribunals when adjudicating matters involving States’ measures and actions—both standard of review and margin of appreciation are examples of such methodological devices. Courts use them as tools to determine the degree of deference that is granted to States in their implementation of international legal obligations. The applicable standard of review/margin of appreciation is rarely articulated in the pr ... More

Rights and obligations of States are determined by rules of international law. Indirectly, however, they may be also controlled by specific legal methodologies used by international courts and tribunals when adjudicating matters involving States’ measures and actions—both standard of review and margin of appreciation are examples of such methodological devices. Courts use them as tools to determine the degree of deference that is granted to States in their implementation of international legal obligations. The applicable standard of review/margin of appreciation is rarely articulated in the provisions of relevant treaty, and its determination by a court is seen as an expression of the court’s prerogative to define its own procedures. The chapters presented in this volume analyse the problem of the applicable standard of review/margin of appreciation used by various international courts and tribunals. The discussion is organized around two issues: (i) relevance of the concept of standard of review/margin of appreciation in the practice of specific courts; and (ii) degree of and reasons for deference. The comparative chapters also analyse existing convergences and divergences between different courts and tribunals and attempt to identify their underlying reasons. The selection of specific courts and tribunals discussed here reflects the actual or potential prominence of the problem of applicable standards of review/margin of appreciation within specific adjudication systems. Consequently, the analysis of court practice in the WTO, international investment arbitration, regional human rights and EU law dominate the discussion. The emerging approaches within the ICJ, ITLOS and ICC are also addressed.