Embracing the Tension between National and International Human Rights Law: The Case for Discordant Parity

Abstract

Individual rights are secured by at least two legal sources: constitutional law and international law. The co-existence of constitutional and international law norms is inevitably a source of conflict: When there is a conflict between a constitutional provision and an international law provision, which (if any) provision should have the upper hand?

Theorists thus far have argued for (and assumed the necessity of) a clear hierarchy between constitutional and international law. This Article argues that the conviction that one system of norms is superior to the other is false. Instead we embrace competition between constitutional and international norms, what we call the "discordant parity hypothesis." It is the persistent tension and conflict between the two systems of norms that is necessary for recognizing and ensuring individual freedom.

To establish the discordant parity hypothesis, we explore the best possible arguments for both the internationalists’ and for constitutionalists’ positions. We suggest that the argument supporting the overriding power of international law norms is the recognition of the state's duty to protect rights, rather than merely a discretionary gesture on its part. The overriding power of constitutional norms stems from its promise to individuals of being the masters of their destiny. We believe that both claims are equally convincing. Instead of trying to establish hierarchy between the claims, we embrace their equal standing and the ensuing conflict between them. We believe that constant tensions and conflicts between international norms and state norms is ideally suited to ensure individual liberty.

Keywords: human rights, international law, constitutional law, state sovereignty

JEL Classification: K10, K30, K33, N40