A Coordinated Judicial Response to Counter-Terrorism?: Counter-Examples
MAPPING TRANSATLANTIC SECURITY RELATIONS: THE EU, CANADA, AND THE WAR ON TERROR, Mark B. Salter, ed., Routledge, 2010
Victoria University of Wellington Legal Research Paper No. 15/2012
26 Pages Posted: 9 Mar 2011 Last revised: 7 Apr 2015
Date Written: 2010
Abstract
The chapter assesses Eyal Benvenisti’s claim that courts from prominent democratic states have reacted consistently to counter-terrorism measures, coordinating outcomes across national jurisdictions. This claim is conjoined with another, namely that the availability of identical or similar norms (grounded in international law and human rights law) has facilitated this coordination effort. The chapter criticises the suggested phenomena of a ‘globally coordinated move’ on the part of ‘national courts from prominent democratic states’ by way of counter-examples. The counter-examples are drawn from cases that are enlisted by Benvenisti as examples of this inter-judicial coordination effort, namely the Supreme Court of Canada’s 2007 decision in Charkaoui and the House of Lords 2004 Belmarsh decision (A v. Secretary of State for the Home Department). The relationship of Charkaoui to the English and American decisions in Hardial Singh and Zadvydas is also assessed. The argument is that key instances of reliance on comparative authority and international human rights law in Charkaoui (including claims of compatibility with Belmarsh), while not simply decorative, do not maintain the level of consistency between the national courts needed to support claims of an ‘inter-judicial coordination effort’ in response to state counter-terrorism measures.
Keywords: Benvenisti, Cooperation Between National Courts, Citation of Foreign Decisions, Counter-Terrorism, Detention of Non-Citizens, Indefinite Detention, Deportation to Torture, Convergence, Fragmentation
JEL Classification: K33, K10
Suggested Citation: Suggested Citation