Democracy and Distrust in International Law - The Procedural Democracy Doctrine and the Standard of Review Used by International Courts and Tribunals

Abstract

The standard of review of international courts and tribunals varies both in substance and in the terminology used. Concerns over fragmentation in international law are thus arguably on the table and do not only concern the separation and potential incoherence between substantive legal norms, but also between methodologies used by international courts and tribunals. The standard of review is one prominent example: to what extent is the difference in the deference granted by various international courts and tribunals justified? Such differences are of course only a problematic development if there are no sound reasons for diverging positions. What we are looking for is thus not a unified solution, but a unified way of thinking about substantially similar problems, which may then result in legitimately different outcomes. This is what the present chapter suggests: There is nothing intrinsically wrong with courts and tribunals in various regimes of international law using different standards of review. However, there should be some sort of common justificatory framework within which the decision on a standard of review is taken. The aim of the present chapter is thus to suggest that the procedural democracy doctrine developed by John Ely in United States constitutional law can provide at least part of such a framework.

Keywords: standard of review, international law, procedural democracy doctrine, John Ely, international courts and tribunals, fragmentation