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

See all articles by Rayner Thwaites

Rayner Thwaites

The University of Sydney - Faculty of Law

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

Thwaites, Rayner, A Coordinated Judicial Response to Counter-Terrorism?: Counter-Examples (2010). 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, Available at SSRN: https://ssrn.com/abstract=1781274

Rayner Thwaites (Contact Author)

The University of Sydney - Faculty of Law ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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