Deference to the Executive: The US Debate in Global Perspective

The Interpretation of International Law by Domestic Courts (Helmut Philipp Aust & Georg Nolte, eds., Oxford University Press, 2016), Forthcoming

20 Pages Posted: 7 Oct 2015

Date Written: October 6, 2015

Abstract

This Chapter examines the practice of deference to the executive, by national courts, in the context of interpreting treaties. When faced with an issue of treaty interpretation, to what extent must a national court engage in its own independent analysis, and to what extent ought the court give weight to interpretations advanced by the executive branch? And if deference to the executive is permissible as a matter of international doctrine, what considerations ought to guide the practice? Rather than assessing the propriety of deference to the executive, or its appropriate forms, from the internal perspective of any particular national order, the Chapter seeks to draw out the three axes of interests at stake: national, international, and individual. Reorienting the problem away from the usual national concerns sheds light on both the difficulty of determining the appropriate balance among these interests, and the importance of attempting to do so.

Suggested Citation

Arato, Julian, Deference to the Executive: The US Debate in Global Perspective (October 6, 2015). The Interpretation of International Law by Domestic Courts (Helmut Philipp Aust & Georg Nolte, eds., Oxford University Press, 2016), Forthcoming, Available at SSRN: https://ssrn.com/abstract=2670034

Julian Arato (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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