Reconciling Different Legal Spheres in Theory and Practice: Pluralism and Constitutionalism in the Cases of Al-Jedda, Ahmed and Nada
| Author | Stephan Hollenberg,Christina Eckes |
| Published date | 01 June 2013 |
| Date | 01 June 2013 |
| DOI | http://doi.org/10.1177/1023263X1302000205 |
220 20 MJ 2 (2013)
RECONCILING DIFFERENT LEGAL SPHERES
IN THEORY AND PRACTICE: PLURALISM
AND CONSTITUTIONALISM IN THE CASES
OF AL-JEDDA, AHMED AND NADA
C E* and S H**
ABSTRACT
A detailed analysis of four judicial responses to extreme pluri-contextual settings, the
House of Lords’ and the European Court of Human Rights (ECtHR)’s rulings in Al-Jedda,
the UK Supreme Court’s judgment in Ahmed, and the ECtHR’s recent ruling in Nada,
demonstrates that all three courts relied on elements of pluralist and constitutionalist
logic. Elements of institutional hierarchy in international law are balanced against
considerations that can be understood as substantive constitutional concerns. Sometimes
their eects are counteracted by blunt pluralist claims. Radical pluralism and state-like
constitutionalism are the two ext reme poles on one scale. Both are ideal types and cannot
exist in their pure form. e analysi s further con rms the increa sed power of the judiciary,
which, when determining the applicable nor mative framework, ultimately makes a choice
between competing authorities repres enting competing values. ‘Communicative’ pluralism
may contribute to the emergence of a shared frame of referenc e and ultimately to a shared
understanding of the importance of cer tain substantive values.
Keywords:Ahmed; Al-Jedda;constitutionalism; Nada; plura lism
*Amsterdam Centre for European Law and Governance (http://jur.uva.nl/acelg), University of
Amsterdam . 2012/2013 Emile Noël Fellow-in-residence, Ne w York University.
**Amsterdam C enter for International Law (ACIL), University of A msterdam.
We would like to than k the research group ‘ e A rchitecture of Postnationa l Rulemaking’ (ww w.uva.
nl/architecture) and in particular Andre Nollkaemper for their comments on an earlier dra . Any
remaining er rors are of course entirely ou r own.
Reconciling D i erent Lega l Spheres in eory and P ractice: Plura lism
and Constitut ionalism in the Ca ses of Al-Jedda, Ahmed and Nada
20 MJ 2 (2013) 221
§1. INTRODUCTION
In a pluri-contextua l1 s etting several players claim the authorit y to control a given legal
situation. One development that has contributed to a multiplication of authoritative
voices is the Security Council’s engagement with new forms of global governance a er
the end of the Cold War. e Security Council has used its Chapter VII competences
to endorse numerous international peacekeeping missions2 and adopt counter-terrorist
measures of unprecedented detail.3 National troops that participate in peacekeeping
missions operate under very di cult circumstances outside the territory of their own
state. is necessari ly raises questions as to what legal norms govern the ac tions of these
troops. Are they bound by the human rights standards applicable in their country of
origin? Are they bound by obligations under the UN Charter or under the European
Convention on Human Rights (ECHR)? A similar question arises when the Security
Council requires U N member states to freeze the asset s of terrorist suspects in a way and
manner that the latter cannot comply without violating t he core of the right to judicial
protection, as it is guaranteed both under Article 14 ICCPR and Article6 ECHR. In
both cases, the core issue is how the di erent international regimes must be reconciled
– or, ultimately, whether the Security Council can exempt UN member states from
their (international) human rights obligations (ECHR) when the latter act to restore or
maintain international peace and security. When adversely a ected individuals bring
these instances before domestic and regional courts these cour ts are confronted with a
complicated mixtu re of potentially applicable normat ive contexts.
While much has been wr itten in the abstract about pluri-context ual settings and the
interactions between legal spheres, the actual judicial strategies to coord inate di erent
legal contexts, but also those to establish distance between them, are underexplored.
is article a nalyses the judicial responses in four r ulings: the House of Lords’ decision
in the case of Al-Jedda (Al-Jedd a, HL), the European Court of Human Rig hts (ECtHR)’s
ruling in the case of Al-Jedda (Al-Jedda, ECtHR), the UK Supreme Court’s judgment
in the case of Ahmed, and the ECtHR’s ruling in the case of Nada.4 All discussed
1 roug hout the text the ter m legal ‘context’ is chosen r ather than ‘le vel’, since the di erent contexts are
not layered. ey do not relate to each ot her in any widely accepted hi erarchical manner. Fur ther, PIL
is not organize d to a degree that would justif y calling it an order. e term ‘pluri-contextual’ is used
purely descriptively.
2 See www.un.org /en/peacekeeping/operat ions (last visited 3June 2 013). At present (February 2013), the
UN runs 14 peaceke eping missions and one spec ial political m ission.
3 See Securit y Council Reso lutions UNSC Res 1267, 15October 1999, UN Doc S/R es/1267 and UNSC Res
1373, 28September 2001, UN Doc S/ Res/1373.
4 House of Lords, R. (Al-Je dda) v. Secretary of State for Defe nce (Justice and another int ervening) [20 07]
UKHL 58, [200 8] 1 A.C. 332; ECtHR, Al-Jedda v. UK, Judgment of 7July 2011, App.No. 27021/08; UK
Supreme Court, HM Treasu ry v. Mohammed Jabar Ahmed and others [2010] UKSC 2 & UKSC 5, on
appeal from: [200 8] EWCA Civ 1187; ECtHR, Nada v. Switzerland, Judgment of 12September 2012,
App.No. 10593/08.
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