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Beyond ConstitutionalismThe Pluralist Structure of Postnational Law$
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Nico Krisch

Print publication date: 2010

Print ISBN-13: 9780199228317

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780199228317.001.0001

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Sanctions and Rights between Hierarchy and Heterarchy

Sanctions and Rights between Hierarchy and Heterarchy

(p.153) 5 Sanctions and Rights between Hierarchy and Heterarchy
Beyond Constitutionalism

Nico Krisch

Oxford University Press

Chapter 5 analyses the dispute over rights protection in United Nations sanctions to elucidate emerging structures of postnational law. This dispute, which pitches high politics—security—against diverse interpretations of fundamental rights, brings out the increasing enmeshment of layers of law in a particularly pointed way, exemplified here in UK and EU law and jurisprudence. Courts in these jurisdictions have developed very different approaches to the broader challenge this enmeshment represents, ranging from monist/constitutionalist to pluralist visions, and from clear assertions of supremacy of the international, regional, and national levels to more accommodating attitudes. The overall picture here is again pluralist, but despite the high stakes and the substantial diversity in approaches, it has not proved to be unstable. Challenges to the UN regime have failed to produce serious non-compliance, and the pluralist contestation over fundamentals has generally been buffered by an accommodating, pragmatic mode of cooperation.

Keywords:   United Nations, sanctions, human rights, courts, stability, pluralism, constitutionalism, postnational law, monism, dualism, hierarchy, heterarchy

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