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

Eyal Benvenisti & Alon Harel

Published in: 15 Int’l J. Const. L. 37 (2017)

Individual human rights are secured by both constitutional law and international law. The coexistence of constitutional and international law norms is inevitably a source of conflict: which (if any) provision should have the upper hand? This article argues that the conviction that one system is superior to the other is false. Instead, we embrace competition between constitutional and international norms, what we call the “discordant parity hypothesis.” To establish the discordant parity hypothesis, we explore the arguments for the internationalists’ and for constitutionalists’ positions. The overriding power of international law is based on the importance of the state’s publicly recognized duty to protect individual rights. The overriding power of constitutional law stems from its promise to individuals of being the masters of their destiny. Both claims are compelling and we embrace their equal standing and the inevitably resulting conflict. The constant tensions between international norms and state norms are ideally suited to ensure individual liberty.