Abstract
The article examines the contours and implications of the emerging international constitutional order. The "constitutional" nature of this order relates to the fact that it contains certain fundamental substantive and structural norms that form a supreme legal framework for the exercise of public power. The substantive elements primarily include the value system of the international legal order, meaning norms of positive law with a strong ethical underpinning (notably human rights norms) that have acquired a special hierarchical standing vis-à-vis other international norms through state practice. The structural elements refer to the subjects of the international legal order that collectively constitute the international community (polity), as well as the mechanisms for enforcement of the international value system.This vision of an international constitutional model is inspired by the intensification in the shift of public decision-making away from the nation state towards international actors of a regional (for example EU) or functional (for example WTO, UN) nature, and its eroding impact on the notion of a “total” constitutional order, where the fundamental substantive and structural norms that form the supreme legal framework for the exercise of public power are concentrated in the nation state. It is also inspired by the belief that such a supreme legal framework is only possible in a system where different national,regional and functional legal orders complement each other in order to form an international constitutional order.
Highlights
In the Yusuf and Kadi decisions of 2005, the European Court of First Instance (CFI) affirmed the absence of due process for individuals residing in European Union (EU) Member States and whose assets were frozen, due to their blacklisting by the UN Security Council as ‘international terrorists’.1 This is but one concrete example of the increasing tension between fundamental human rights norms and other international obligations such as international peace and security in the post 9/11 era
The range of cases in which the European Court of Human Rights (ECtHR) has reviewed the application of public international law obligations against the obligations in the ECHR suggest that the latter's normative superiority would, in principle, apply to all rights in the ECHR.[30]
Extensive analysis of the practice of regional, sectoral and national bodies has yet to be undertaken, in order to determine whether over time, the spill-over effect of the ECHR on the international value system will strengthen the latter to the point where all customary human rights obligations with erga omnes effect enjoy a superior standing in the international legal order which is similar to that of the ECHR on a regional level
Summary
In the Yusuf and Kadi decisions of 2005, the European Court of First Instance (CFI) affirmed the absence of due process for individuals residing in EU Member States and whose assets were frozen, due to their blacklisting by the UN Security Council as ‘international terrorists’.1 This is but one concrete example of the increasing tension between fundamental human rights norms and other international obligations such as international peace and security in the post 9/11 era. In the Yusuf and Kadi decisions of 2005, the European Court of First Instance (CFI) affirmed the absence of due process for individuals residing in EU Member States and whose assets were frozen, due to their blacklisting by the UN Security Council as ‘international terrorists’.1 This is but one concrete example of the increasing tension between fundamental human rights norms and other international obligations such as international peace and security in the post 9/11 era. The Yusuf and Kadi decisions illustrate the inability of any of the respective international legal subjects (UN, EU, Member States) to reconcile by itself its international obligations pertaining to human rights and (inter)national security in a manner that provides any meaningful legal protection to the affected individuals. 14 Walter Post-national Constitutionalism 173, 194-95, 198; Fischer-Lescano and Teubner 2004 Mich JIL 999 ff; Slaughter A New World Order 131
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a callMore From: Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad
Disclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.
