Concurrent Decision-Making Authority: Deference as Restraint, Reference, and Respect

A third set of approaches to deference disclose a concurrent view of authority. In the modes of ‘restraint’, ‘reference’, and ‘respect’, authority provides non-exclusionary second-order reasons for action. Second-order reasons for recognising domestic decision-making authority are treated akin to a request, rather than an order. Second-order reasons for reaching a particular decision are balanced alongside first-order reasons, rather than displacing them. Adopting this view of authority, the adjudicator is able to assert its own decision-making authority, whilst also acknowledging the decision making authority of other actors. This Chapter examines three modes of deference that reflect this understanding of the interface between domestic and international decision-making authority: the modes of deference as restraint, deference as reference, and deference as respect. Each of these approaches to deference differs from those considered in Chapters 5 and 6, because in each the adjudicator engages (even if only in a limited way) with the available first-order reasons for decision despite having recognised second-order reasons to defer to a domestic actor’s decision-making authority.