This chapter introduces the book by presenting the main puzzle motivating it – variation in deference. It suggests that international courts defer to varying degrees and through different modes. This chapter presents the book’s conceptual approach to studying deference and the core theoretical argument advanced by the book. In doing so, it distinguished the conceptual and theoretical framework from existing literature on international courts. It describes the research design that guides the empirical analysis and the logic behind the book’s focus on the East African Court of Justice, Caribbean Court of Justice, and the African Court of Human Rights. The chapter briefly summarizes the main findings and the implications of the book for future research.

This chapter asks whether international courts are designed with institutional safeguards to preserve independence. It conceptualizes formal independence as the formal rules that aim to safeguard autonomous judicial decision-making. This elsewhere is referred to as de jure independence. The chapter presents an original measure of formal independence and estimates the formal independence of twenty-six ICs that have operated between 1945 and 2015. The chapter compares formal independence across these ICs and reveals significant variation in formal independence. It shows that rules pertaining to the selection and tenure of international judges as well as the managerial autonomy of ICs are the sources of most of the observed variation.

This chapter conceptualizes deference as an international court’s acceptance of the state’s exercise of authority. It presents a method for measuring deference that combines case outcomes, interpretation, and remedial orders. The chapter introduces a novel theoretical account of deference. This explanation centers on a court’s strategic space, or the range of possible decisions that will satisfy a court’s legal and political imperatives, and argues that two political factors determine this strategic space: formal independence and political fragmentation. The former concerns the formal rules that safeguard independence while the latter refers to the heterogeneity of states’ preferences. These two constraints affect deference by way of their impact on a court’s legitimacy and the feasibility and credibility of state resistance. The theoretical account also considers the role of persuasive argumentation, public legitimation, and past resistance. This explanation is distinguished from accounts that emphasize judicial support networks and political norms and legal culture.

Chapter 6 contains a case study in which we sketch how the normative framework set out in part A of the book, can be used as a basis for arguments that can be made in relation to the ongoing ICJ advisory opinion on climate change. It argues that the court should interpret international rules in a manner which furthers justice including intergenerational justice. This is essential for maintaining the court’s legitimacy, which must include its future legitimacy. The court should flesh out the principle of intergenerational equity by defining it in terms which require states to take climate action to ensure protection of the human rights of future generations necessary for them to lead a decent life. In addition, the normative framework is used to argue for: (i) an particular interpretation of the no harm rule to incorporate harm towards future generations and (ii) reform of the procedural rules of the ICJ so as to allow NGOs and scientists to make amicus curiae submissions (directly or implicitly) on behalf of future generations in proceedings before the court.

This part focuses on the interpretative methodologies and principles employed by international human rights organs in applying and developing human rights norms. It explores the role of various interpreters, including international, regional, and national courts, in shaping the meaning and scope of human rights. The sections examine the methods of interpretation used by human rights bodies, such as textual, contextual, purposive, and evolutionary approaches, and the challenges in ensuring consistency and coherence across different jurisdictions. It also discusses the purposes of interpretation, including the protection of human rights, the development of international human rights law, and the promotion of judicial dialogue and coherence. This part delves into the international legal regime governing human rights and freedoms, covering states’ general obligations, the conditions for engaging state responsibility, and the regime for the enjoyment and exercise of rights and freedoms. By analyzing the interpretative practices and legal obligations, this part aims to provide a deeper understanding of the dynamics of human rights interpretation and the factors influencing the application of human rights norms in diverse legal and cultural contexts.

This chapter discusses the various interpreters of international human rights law, including international courts, regional courts, and domestic courts. It examines their roles, authority, and the plurality of interpreters in the human rights legal framework. The chapter explores how different judicial and quasi-judicial bodies contribute to the development and interpretation of human rights norms. It also highlights the challenges and opportunities in achieving coherence and consistency in the interpretation of human rights law across different jurisdictions. The chapter emphasizes the importance of collaboration and dialogue among interpreters to enhance the protection of human rights.

The purpose of this chapter is to discuss the role of judicial dialogue between international courts in the interpretation of customary international human rights law. Judicial dialogue refers to international courts’ spontaneous practice of referencing other international courts’ decisions or international instruments that are outside the international court’s own judicial system. International courts engage in this practice in order to both identify rules of customary international human rights law and reach common interpretations on the meaning and scope of norms protecting human rights. Through the analysis of international courts’ case law, this chapter discusses the impact of judicial dialogue consisting in cross-references to legal norms and judicialdecisions on the interpretation of rules protecting human rights, especially when judges use case law from other courts in support of their interpretation.

Effectiveness and efficiency in judicial decision-making are the most important objectives of any court. While this concerns primarily the final decisions that are rendered, it is also relevant to the judicial process and the legal reasoning that a court or tribunal carries out to reach its decision, in order to ensure continuity and coherence. Traditional understandings of the international judiciary have seen the judges’ role as one where they discover and declare the law by applying it at face value to the legal issues that have arisen within the case, thereby achieving effectiveness through what is said to be direct and clear application of the law. This sits rather uneasily with the identification of customary international law (CIL), which is by its very nature unwritten and established by identifying evidence of state practice and opinio juris. The aim of this chapter is to examine instances of judicial activism in the decision-making of international courts and tribunals during the determination and application of CIL and how that allows for either judicial effectiveness or ambiguity.

When faced with the inevitable task of interpreting customary international law (CIL), what should a court do and what should it consider? Should it engage in an ‘inductive’ process of sifting through available evidence of state practice and opinio juris or a deductive process designed to reason logically from principles embedded in the rule? Should the court invoke something like the rules of treaty interpretation with their focus on good faith, ordinary meaning, context, and object and purpose? International law doctrine falls short here. Figuring out how to interpret and apply custom requires a theory of custom, a focus on the normative stories we tell. This reveals that there is not just one story explaining why custom should be a source of law, but multiple stories. What we call ‘custom’ may represent or draw from at least three different sources of law: Negotiated Law, Legislated Law and Adjudicated Law. This chapter aims to show that the non-treaty rules derived from each draw on different sources of legitimacy, operate according to different logics, dictate different methods of interpretation, and favour different methods for resolving disputes.

The ICC launched in 2002 to judge cases against individuals accused of war crimes, crimes against humanity, and genocide. It is unique among international institutions in this book in that it imposes its obligations upon individual persons rather than governments. This chapter shows the powers and limits on the authority of the ICC to punish people for large-scale atrocities. The practical power of the ICC is shaped by both the difficulty of apprehending people and the active work of those who wish to remain insulated from accountability.

The ICJ is the primary court for legal disputes among governments. It hears cases in which one country claims that another country has violated its obligations under international law. This chapter introduces the ICJ by examining its legal foundation in the Statute of the ICJ, and shows its powers and limits in practice by looking at the cases of Belgium v. Congo (on genocide) and Australia v. Japan (on rights and obligations for whale hunting under the International Convention for the Regulation of Whaling).

The concluding chapter starts by very briefly summarizing key patterns in the litigation over judicial selection and then returns to the de Tocqueville quote and the issue of American exceptionalism. To assess the exceptionalism question, the chapter includes a discussion of litigation over judicial selection outside the United States, finding that it occurs in very few countries and where it does occur, is generally very limited. One exception is the recent burst of litigation in international courts over judicial selection in Poland. Another possible exception is Israel where there has been litigation concerning several judicial selection issues. Overall, the chapter concludes that American exceptionalism in litigation over judicial selection does not lie in the existence of such litigation but in the frequency of that litigation.