Edited by Federico Fabbrini and Vicki C. Jackson
Chapter 2: United Nations law: substantive constitutionalism through human rights versus formal hierarchy through Article 103 of the Charter
The purpose of this contribution is to examine the relationship between formal and substantive constitutionalism, the former pertaining to hierarchy and the latter to values, axiology. A number of cases addressing targeted sanctions resulting from terrorist listings by the United Nations Security Council will be discussed to address the question. One of the main claims made in the chapter is that UN law does include human rights norms, and hence an eventual clash between the rights of the individual and the authority of the Security Council is not a conflict between different legal orders but a tension within any legal order, including within UN law. Only by living up to the expectation of comprising both formal and substantive dimensions of constitutionalism, can UN law claim a status as part of a ‘global constitution’. A minimalist definition of a Constitution, inspired by Hans Kelsen, is that it is an aggregate of legal norms that prescribe the rules for the enactment of new legal norms. A Constitution is thus the highest level of the pyramid of enacted legal norms, and the legal basis for the enactment of laws by the national legislature (Parliament), those laws in turn defining the powers to enact lower regulations. This is the core of formal constitutionalism, related to the idea of a strict hierarchy of enacted (posited) legal norms.
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