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First published in Great Britain 2020
Copyright © Johannes Hendrik Fahner, 2020
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of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/
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All Eur-lex material used in the work is © European Union,
http://eur-lex.europa.eu/, 1998–2020.
A catalogue record for this book is available from the British Library.
Library of Congress Cataloging-in-Publication data
Names: Fahner, Johannes Hendrik, 1988- author.
Title: Judicial deference in international adjudication : a comparative analysis / Johannes Hendrik Fahner.
Description: Oxford ; New York : Hart, 2020. | Series: Studies in international law; volume 78 |
Based on author’s thesis (doctoral – Universiteit van Amsterdam, 2018) issued under title:
Intensity of review in international courts and tribunals : a comparative analysis of deference. |
Includes bibliographical references and index.
Identifiers: LCCN 2020009170 (print) | LCCN 2020009171 (ebook) |
ISBN 9781509932283 (hardcover) | ISBN 9781509932290 (Epub)
Subjects: LCSH: International courts. | Judicial process. | Deference (Law)
Classification: LCC KZ6250 .F34 2020 (print) | LCC KZ6250 (ebook) | DDC 341.5/5—dc23
LC record available at https://lccn.loc.gov/2020009170
LC ebook record available at https://lccn.loc.gov/2020009171
ISBN: HB: 978-1-50993-228-3
ePDF: 978-1-50993-230-6
ePub: 978-1-50993-229-0
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Foreword
I
AM DELIGHTED to write the foreword for this remarkable thesis of Johannes
Hendrik Fahner. As a trainee in my chambers at the General Court of the
European Union, Johannes showed a profound interest in international
adjudication. On numerous occasions, I had the privilege to discuss with him
issues related to the peaceful settlement of disputes and I have been impressed
by his in-depth knowledge of international law. This erudition has been
nourished by studies at the universities of Utrecht, Paris II, Amsterdam and
Luxembourg, as well as by peer-reviewed publications, most recently in the
prestigious International and Comparative Law Quarterly.
The topic of Johannes’ PhD thesis explores the delicate relationship between
international courts and domestic authorities. Should international judges assess
or even review decisions de novo or should they defer to domestic stakeholders?
And if they assess and review decisions themselves, what should be the scope of
such a review? “Deference” as opposed to “control”, “caution” as opposed “to
bold action”, are increasingly encouraged by States and critical academics. This
tension is of growing importance in international litigation and constitutes,
in the author’s view, a variation on broader debates about the proper balance
between the aims pursued by international law and the prerogatives of sovereign
States.
Johannes Fahner adopts in his analysis a truly comparative approach. He not
only juxtaposes the different permanent institutions, ie, the International Court
of Justice, the European, Inter-American and African human rights courts, the
dispute settlement system of the World Trade Organization and the International
Tribunal for the Law of the Sea; he also embarks upon a meaningful comparison,
highlighting the differences in adjudication techniques in relation to his main
theme by providing concrete examples and proposing alternative solutions to
decided cases. Droit comparé is not simply droit juxtaposé.
The author, in a pedagogical format, takes the reader by the hand to guide
him or her through the difficulties of his topic. His starting point consists of
setting the scene, investigating to what extent international adjudicators have
followed a deference-based approach and whether they should do so when
assessing State conduct against international legal norms. A great variety of
practices justifies the comprehensive comparative study. A useful contribution
of the author is his examination of ‘expressions of deference’ to be found in
the practice of various international adjudicators. Different standards of review,
such as those of reasonableness, good faith and the margin of appreciation, are
vi Foreword
Dean Spielmann
Former President of the European Court of Human Rights
Judge of the General Court of the European Union
Acknowledgements
T
HIS BOOK IS the result of a research project executed at the Universities
of Amsterdam and Luxembourg. I thank my PhD supervisors, Matthew
Happold and Pieter Jan Kuijper, for their guidance and mentorship, and
for the good laughs we have shared during these years. I also thank the other
members of my comité d’encadrement de thèse, Herwig Hofmann and Johan
van der Walt, for their supervision, as well as the other members of my PhD
defence jury for their helpful reports and questions: Yvonne Donders, Janneke
Gerards, Hélène Ruiz Fabri, and Stephan Schill.
During my time as a PhD researcher, I have been surrounded by
numerous great colleagues. I would like to thank, in particular, Chrysa
Alexandraki, Fatima Chaouche, Javier Garcia Olmedo, Nijat Hajikhanov,
Stijn Lamberigts, Parvathi Menon, Chukwuma Okoli, Amadou Tidiane Sow,
and Simona Spassova. I thank Moritz Klein for sharing challenging expedi-
tions and Relja Radović for his comradeship and for countless discussions.
I am grateful to the Faculty of Law, Economics and Finance of the University
of Luxembourg and the Amsterdam Center for International Law for
providing extremely pleasant and resourceful environments, as well as to the
World Trade Institute of the University of Berne, where I spent an enjoyable
research stay.
During my PhD project, I have enjoyed a great internship at the General
Court of the European Union. I would like to thank Judge Dean Spielmann
and the members of his Chambers, Anne Colomer, Olivia Davidson, Yves van
Gerven, Susanna Rossow-Schmekel and Panayotis Voyatzis.
This book has benefited from discussions with a great number of schol-
ars who have commented on my written work or presentations. I would like
to thank, in particular, Oddný Arnardóttir, Pierre d’Argent, Marco Bronckers,
Jorge Contesse, Gus van Harten, Nico Krisch, Joanna Mendes, Miguel Moura
e Silva, Matthias Oesch, Pietro Ortolani, Joshua Paine, Martins Paparinskis,
Rodrigo Polanco, Dean Spielmann, Maarten Stremler, Robert Stremler, Ingo
Venzke, Mark Villiger, Panayotis Voyatzis, and Ezgi Yildiz.
I thank my paranymphs, Başak Bağlayan and Jacob van Dijk, for their excel-
lent assistance before and during my defence.
I am grateful to the team of Hart Publishing for their encouragements and
patience, in particular Tom Adams, Richard Cox, Sasha Jawed and Catherine
Minahan.
x Acknowledgements
1. Introduction��������������������������������������������������������������������������������������������1
I. Deference in International Adjudication�����������������������������������������1
II. The Concept of Deference�������������������������������������������������������������5
A. Defining Deference������������������������������������������������������������������5
B. Deference in the Domestic Context������������������������������������������7
C. Deference in the International Context�����������������������������������13
III. Approach: A Comparative Analysis of Deference�������������������������17
Bibliography���������������������������������������������������������������������������������������������� 225
Index��������������������������������������������������������������������������������������������������������� 261
xiv
Other documents randomly have
different content
one very important in the animal economy, and having various relation to
the causes and treatment of disease. Keeping in mind then this reference
to the use of water as an internal remedy, diluents may be viewed under
three conditions of probable usefulness:—First, the mere mechanical
effect of quantity of liquid in diluting and washing away matters,
excrementitious or noxious, from the alimentary canal;—secondly, their
influence in modifying certain morbid conditions of the blood;—and thirdly,
their effect upon various functions of secretion and excretion, and
especially upon those of the kidneys and skin * * * The first is an obvious
benefit in many cases, and not to be disdained from any notion of its
vulgar simplicity. It is certain there are many states of the alimentary canal
in which the free use of water at stated times produces good, which
cannot be attained by other or stronger remedies. I have often known the
action of the bowels to be maintained with regularity for a long period,
simply by a tumbler of water, warm or cold, on an empty stomach, in
cases where medicine had almost lost its effect, or become a source only
of distressing irritation. The advantage of such treatment is still more
strongly attested, where the secretions taking place into the intestines, or
the products formed there during digestion, become vitiated in kind. Here
dilution lessens that irritation to the membranes, which we cannot so
readily obviate by other means, and aids in removing the cause from the
body with less distress than any other remedy. In some cases, where
often and largely used, its effect goes farther in actually altering the state
of the secreting surfaces by direct application to them. I mention these
circumstances upon experience, having often obtained much good from
resorting to them in practice, when stronger medicines and ordinary
methods had proved of little avail. Dilution thus used, for example, so as to
act on the contents of the bowels, is beneficial in many dyspeptic cases,
where it is especially an object to avoid needless irritation to the system.
Half-a-pint or more of water taken when fasting, at the temperature most
agreeable to the patient, will often be found to give singular relief to his
morbid sensations. * * * In reference to the foregoing uses of diluents, it is
to be kept in mind that the lining of the alimentary canal is, to all intents, a
surface, as well as the skin, pretty nearly equal in extent; exercising some
similar functions, with others more appropriate to itself, and capable in
many respects of being acted upon in a similar manner. As respects the
subject before us, it is both expedient and correct in many cases to regard
diluents as acting on this internal surface analogously to liquids on the
skin. And I would apply this remark not only to the mechanical effects of
the remedy, but also to their use as the medium for conveying cold to
internal parts; a point [29]of practice which either the simplicity of the
means, or the false alarms besetting it, have hitherto prevented from being
duly regarded.”
Again he writes:—
And again:—
“As I have been treating of this remedy only in its simplest form, I do not
advert to the use of the different mineral waters farther than to state, that
they confirm these general views, separating, as far as can be done, their
effect as diluents from that of the ingredients they contain. The copious
employment of some of them in Continental practice gives room for
observation, which is wanting under our more limited use. I have often
seen five or six pints taken daily for some weeks together (a great part of it
in the morning while fasting), with singular benefit in many cases to the
general health, and most obviously to the state of the secretions. * * *
These courses, however, were always conjoined with ample exercise and
regular habits of life; doubtless influencing much the action of the waters,
and aiding their salutary effect.”
“It is a vital stimulus, and is more essential to our existence than aliment.”
Are these effects consistent with lowering the tone of the stomach?
are they not, on the contrary, the strongest evidence of the tonic
effects of water?
“But the whole assertion regarding thin blood proceeds on grounds that
betray intense ignorance, both of physiology and of the water cure. It
supposes that the whole water imbibed enters into, and remains in the
circulating blood, quasi water, that no chemical transformation of it takes
[30]place in the body at all: this is ignorance of physiology. And it supposes
that all who are treated by water are told to drink the same, and that a
large quantity, without discrimination of the individual cases of disease
presented: this is ignorance of the water cure. So between the horns of
this compound ignorance, and of wilful misrepresentation, we leave the
declaimers about the ‘thinning of the blood.’ ”
In so flagrant a case of thin blood, why has this principal cause been
omitted? It is further curious that this injurious effect of water was
never invented, much less preached, until Hydropathy was found to
be making inconvenient strides in public favour.
Is the reader aware that eighty per cent. of water enters into the
composition of healthy blood, without making any allowance for the
enormous quantity required for the various secretions?
Granting, however, for the sake of argument, that all, and more than
these objectors urge, were true, we still have a kind of feeling that
water is more congenial to the system than prussic acid, or even
iodine. But we may be wrong.
“Tell Barter that his system has lately become the universal practice in the
Southern States, for cholera; and since its adoption, although it is, of
course, but imperfectly carried out, the mortality is not one-fourth.
“Need more be offered upon the subject; and yet with such facts upon
record, ‘hot punch’ is now given to the poor patients in the cholera
hospitals in Limerick. Those pious and angelic Sisters of Mercy, to whom
you have alluded in the Chronicle, never, in all probability, heard or read of
the treatment of cholera as above narrated; but ever attentive and
observant as they are in the performance of their hallowed vocation, they
have not been unmindful of the good effects of cold water. Nature prompts
the sufferer to call for it, and it should be always supplied. In cholera, pure
water is balsamic.
“As to the operation of cold water on the human system in cholera, or the
action of the system on water, I will not presume to pronounce; but I may
say that it is commonly supposed that when the serum (one of the
important constituents of the blood) is exhausted by discharges, collapse
takes place, and the livid hue of the countenance follows; and everybody
has heard of the experimental operation of transfusion of warm water,
combined with albumen and soda, into the veins, to supply the absence of
serum, in order to give the vital current its natural and healthy flow:
whether cold water, from the oxygen it contains, and the necessary heat it
is therefore calculated to impart, is taken up rapidly by the absorbents to
cherish and feed the blood, and fill the channels of circulation, so as to
remove collapse in cholera, I shall leave physiologists to determine; but it
is indisputable that cholera patients have anxiously asked for, and eagerly
swallowed, copious draughts of cold water, till their thirst was allayed,
genial warmth restored, agony banished, and the vital functions vivified
and invigorated.” * * * * *
“I am acquainted with three persons, who, after they had been laid out for
dead, on being washed, previous to interment, in the open court-yard, with
water, to obtain which the ice had been broken, recovered in
consequence, and lived many years. I received from Erycroon, in Turkey,
a letter from our excellent Consul, Mr. Brant, who states that Dr. Dixon, of
that place, was then curing more patients by friction, with ice or snow, than
any other treatment. The same practice is reported to have been the most
effectual in Russia.”
“I never yet saw a patient that did not cry out for cold water; and the
confirmed dram-drinker can, with difficulty, be persuaded to taste his
[33]favourite beverage; he objects more to brandy or punch than the
temperate do; this I have often remarked. I have seen a patient travel for
miles on an open car, through sleet and rain, without any covering, and
drinking cold water on the way, and remarked that he did better than when
treated with brandy, hot tins, &c. In fact, I often saw such patients beg to
be allowed out again, they used to call loudly for cold water. ‘For the love
and honour of God, sir, get us a drink of cold water,’ was no unfrequent
request amongst them, and that pronounced with an earnestness of
manner most truly impressive; but, alas! in 1832, this appeal was always
refused, though in 1849 a step has been taken in a right direction, and it is
allowed, according to the Sisters of Mercy, ‘in small quantities.’ ”
The truth will ere long be acknowledged, that it is our mode of life
that makes us fit subjects for cholera, and that it is our mode of
treating it alone, which makes the disease so dangerous. The wretch
who is cast uncared for in a ditch, exposed to all the inclemency of
the weather, with water alone to quench his burning thirst, has ten
chances to one in favour of his recovery, compared with the well-
cared patient who is dosed with brandy and the favourite specifics of
the apothecary’s shop. If we look at cholera, and divest our minds of
its accustomed mode of treatment, we will find that every symptom
of the disease points to the presence of some highly irritant poison in
the blood; and in the effort to expel this poison, the serum which
contains it, is drained from the system. What, therefore, can be more
rational than to supply the system with the materials of restoration,
by giving water in large quantities, and to stimulate its chemical
combinations by which the caloric of the system shall be restored, by
the influence of fresh air, water drinking, and cold bathing.
“It would be folly, however, to avoid a treatment because it will not for ever
root up your disease in your own convenient time. Look at the destructive
manner in which colchicum reduces a gouty fit, how it approximates the
attacks, and utterly disorganizes the viscera; and then regard what the
water cure is capable of doing, both against individual attacks, and in
reduction of the diathesis, the vital parts meanwhile improving under its
operation; … if it does not utterly cure the gout, at least it does not shorten
the patient’s life as colchicum does.”
“To the patient, and, indeed, to the physician who knows little of
physiology, all this will appear right: the gout is removed, and that is what
[35]was desired. The physician, however, who is a physiologist, will say,
‘True, that irritation which you call gout, has left the extremities, whither it
had been sent by nature to save her noble internal parts. But look to the
signs exhibited by those parts; are they not those of augmented irritation,
at least of irritation of a degree and kind that did not exist so long as the
limbs were pained and inflamed? The fact is, that your colchicum has set
up in the viscera so intense an irritation as to reconcentrate the mischief
within; and the fit is cured, not by ridding the body of the gouty irritation,
but by driving or drawing it in again,’ (thus baffling nature’s efforts at self
relief). ‘Hence the continuance of the dyspeptic symptoms after the fit;
hence, as you will find, the recurrence of another fit ere long, the intervals
becoming less and less, until gouty pain is incessantly in the limbs, and
gouty irritation always in the viscera.’ ”
[36]
Nor will the above results form at all a subject for wonder, when it is
remembered that every natural disease arises either from impurity in
the blood or maldistribution of it, and that all the processes of the
water cure, from the Turkish bath down to the wet sheet, act
powerfully as depurators of the blood and controllers of its
circulation,—attracting it here, and repelling it there, at will.
We know not whether the public will prefer the impartial testimony of
an intelligent observer like Sir Bulwer Lytton, to that of the Allopathic
physician, naturally wedded to his own system and anxious to
sustain it against all intruders; but we may observe, that we never
yet met a physician opposed to Hydropathy, who did not, on
catechising him, exhibit the most absurd ignorance respecting it.
Their chronic idea is that of a person being left to shiver in wet
sheets; and, as a consequence, their chronic note of warning,
accompanied by an ominous shake of the head, consists in, “Don’t
attempt the water cure, or it will kill you.” 17 If medical men would but
see, before they assert, then much value might be attached to their
opinion; but what value can be attached to their opinion about a
system which they will not take the trouble of examining into? How
many orthodox physicians have ever visited Blarney, or any similar
Hydropathic establishment?—The proportion of such visitors (and no
one can form a fair idea of the system without seeing it at work), to
the whole profession would be more than represented by an
infinitesimal fraction.
[Contents]
THE TURKISH BATH. 1