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The Democratic Legitimacy of the International Criminal Justice Model: the Unilateral Reach of Foreign Domestic Law and the Promise of Transnational Constitutional Conversation

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Chapter Summary

United Nations Security Council Resolution 1373 in the matter of counterterrorism may be said to reflect a new-found accord amongst democratic nations. While the ever-increasing inadequacy of exclusively domestically based counter-terrorism strategies is categorical, increased state interdependence ensuing from the adoption of what has been called an "International Criminal Justice Model", has, for its part resulted in a disconcertingly intrusive 'law without borders'. This chapter proposes an analytical framework, positing that complementary analytical tools pertaining to democratic legitimacy be adopted. Comparative constitutional law acting at a global level is raised merely to assuage, not fully resolve, the legitimacy difficulties, deriving from the unilateral external application of domestic law. The utilization of this attribute, an international judiciary's unified voice, must be complemented by effective procedural tools, aimed at relieving concerns that the judiciary tends to be deferential to the executive in times of crisis.

Keywords: comparative constitutional law; counter-terrorism strategies; democratic legitimacy; foreign domestic law; international criminal justice model



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