Table of Contents

Constitutionalism Across Borders in the Struggle Against Terrorism

Constitutionalism Across Borders in the Struggle Against Terrorism

Edited by Federico Fabbrini and Vicki C. Jackson

This edited collection explores the topic of constitutionalism across borders in the struggle against terrorism, analyzing how constitutional rules and principles relevant in the field of counter-terrorism move across borders. What emerges is a picture of the complex interplay of constitutional law, international law, criminal law and the law of war, creating webs of norms and regulations that apply in the struggle against terrorism conducted across increasingly porous borders.

Chapter 3: (Implicit) judicial favoring of human rights over United Nations Security Council sanctions: a manifestation of international constitutionalism?

Erika de Wet

Subjects: law - academic, constitutional and administrative law, terrorism and security law, politics and public policy, constitutions

Extract

In domestic legal systems, some norms are of a constitutional nature and thereby hierarchically superior to ordinary ones. The system of norm hierarchy is underpinned by the value system of a certain constitutional polity. Domestic legal systems also feature a comprehensive judiciary system, the task of which is the enforcement and interpretation of legal norms as well as resolution of conflicts between them. International law has traditionally been regarded as a horizontal system of legal norms. Besides the absence of a clear hierarchy, the international legal order also lacks a centralized system of enforcement. The function of the international judiciary is thus severely limited in comparison to the domestic level. Not only does this imply that the enforcement of international law remains a decentralized process, but also that the international legal order lacks a judicial mechanism for consistent interpretation and resolution of norm conflicts. A norm conflict in international law can be understood in a narrow or broad sense. A narrow definition of a conflict describes those situations where giving effect to one international obligation unavoidably leads to the breach of another obligation or right. A broad definition of norm conflict (sometimes also referred to as ‘apparent conflict’), on the other hand, refers to situations where compliance with an obligation under international law does not necessarily lead to a breach of another norm, but rather to its limitation or even a limitation of all the rights and/or obligations at stake.

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