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I·CONnect

Blog of the International Journal of Constitutional Law and ConstitutionMaking.org

Christmas Reading? Christmas Gifts? Some Suggestions from the Editor-in-Chief

J.H.H. Weiler, Editorial Director, ICON; President and Secretary General, European University Institute

 

[ICON Editors’ Choices for New Year Readings and Gifts: ICON’s Book Review Editor, Isabel Feichtner, invited our Board members to reflect on the books that have had a significant impact on them this year. In the following weeks they will present their selections here on I*Connect. They write about books, not necessarily published in 2014, but read or reread this year, and which they found inspiring, enjoyable or consider ‘must reads’ for their own work or international law scholarship in general. These editors’ choices are not intended to be a prize in disguise, but rather are personalized accounts of the reading experiences of our Board members.  We begin with our Editor-in-Chief’s selection.]

 

The following is not a ’10 Best Books Published in 2014’. Looking back at the books (excluding novels) I read (and in some cases re-read) this year I have picked those which created that ‘everyone should read this book’ urge that we all experience from time to time. The selection is of course entirely subjective, but rigorous in one sense: knowing how precious reading time is, involving serious opportunity costs, I put on the list only those titles where I felt that I would not run the risk that someone would write to me and say: you wasted my time.

The order of books on the list is arbitrary.

 

Moshe Halbertal, Maimonides: Life and Thought, Princeton: Princeton University Press, 2013 

Of Maimonides it has been said endlessly that from [the great Biblical] Moses to Moses [Maimonides] no one has arisen as Moses. (Trust me, it sounds a lot better in pithy Hebrew – Momoshe ad Moshe Lo Kam KeMoshe). A son of Cordoba (1138) he spent the central part of his life in Cairo where he died in 1204 and was then buried in Tiberius.  Renaissance Man (long before the Renaissance) he was and remains one of the greatest Jewish teachers, scholars, legal decisors, philosophers (in the Aristotelian tradition) and physicians. His codification of Jewish Law has remained normative till this day and his Guide to the Perplexed is part of the canon of medieval philosophy and is hugely rewarding to anyone today (all too few, alas) interested in virtue theory. The story of his life, an exile from Caliphate Andalusia and ending as physician to the Crown of Egypt, is not only riveting but offers a window to a world of, inter alia, Islamic glory, which is not often known beyond a small circle of scholars.

Enter another Moses, Moshe Halbertal, the author, inter alia, of a recent study of Maimonides. I read the Hebrew original some years ago but reread the English translation this year. It is a crowded corner and a difficult choice, but with no hesitation I would crown him the most significant and interesting Jewish scholar and intellectual of our times. He, too, is a renaissance man – philosopher, historian, profound jurisprude whose range is vast, making regular forays into the public space with thought-provoking, mind-shifting essays on contemporary issues. Google, pick out any, and hold your breath.

The great virtue of his book on Maimonides is that both specialist and novice will be drawn into the text to their respective profit, enlightenment and edification. To go from the sublime to the ridiculous, you get two-for-one: an insight into the profound worlds of Moses Maimonides and Moses Halbertal.

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Published on December 20, 2014
Author:          Filed under: Editorials
 

An ISIL AUMF? Counterterrorism and Congressional Authorization in the United States

William C. Banks, Syracuse University, Myriam Feinberg, Tel-Aviv University, and Daphné Richemond-Barak, Lauder School of Government               

While the efficacy of strikes against the Islamic State of Iraq and the Levant (also known as Daesh – Al Al-Dawla Al-Islamiya fi al-Iraq wa al-Sham – in Europe) is questioned, lawyers have, in the past months, grappled with the legal framework forming the basis of the strikes. This post focuses on the United States and provides a useful summary of the issues at stake, the existing instruments and the options available to the US administration.

In a speech on the ‘Strategy to Counter ISIL’ delivered on the eve of the thirteenth anniversary of the 9/11 attacks, President Obama stated that he did not need authorization from Congress for the strikes.

The days before the speech had seen much speculation about the intended strategy of the US government in Iraq and Syria in general, and the legal justifications for US actions in particular. The main question was whether the Obama administration would rely on Article II of the US Constitution to justify the strikes, the 2001 Authorization to Use Military Force (AUMF), the 2002 AUMF for Iraq or a brand new authorization from Congress.

On September 10, 2014, the administration announced that the US could rely on the 2001 AUMF to justify strikes against ISIL in Iraq and Syria. Later, the possibility of using the 2002 Iraq AUMF was raised. Then, in a surprising turn of events, President Obama stated in early November that he would, in fact, seek Congressional authorization for the military campaign against ISIL.

Several legal issues emerge from President Obama’s decision to seek Congressional authorization in the fight against ISIL – months after the strikes already began. First is the question of the legality of the United States’ actions until now, in particular because the strikes are likely to continue even if a new AUMF is not adopted. It also raises a number of questions with regard to the scope and nature of a new AUMF, and, more generally, as to the respective roles of Congress and the President in authorizing the use of force. This post will analyze the suitability of Article II and the two existing AUMFs to American actions against ISIL, before addressing the possibility of a new AUMF.

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War Crimes, Constitution, International Law: …Quid Juris? The Opinion of the Italian Constitutional Court

Francesco Duranti, Università per Stranieri di Perugia (Italy)

With Judgment no. 238/2014 delivered on 22 October 2014, the Italian Constitutional Court (CC) “dialogues” with the International Court of Justice (ICJ) on the international custom of immunity of States from the civil jurisdiction of other States, as interpreted by the ICJ in its Judgment Germany v. Italy of 3 February 2012. The ICJ decision considered war crimes and crimes against humanity, in breach of inviolable human rights, committed in Italy and Germany against Italian citizens in the period 1943 to 1945 by Third Reich troops, to be acts jure imperii and thus excluded from the jurisdiction of civil courts.

According to the Constitutional Court, the aforementioned principles are in conflict with the principle of the absolute guarantee of judicial protection, enshrined in Article 24 of the Italian Constitution, since they preclude the judicial examination of the action for damages for the gross violations of human rights suffered by the victims of war crimes and crimes against humanity, committed by another State, albeit in the exercise of sovereign powers (jure imperii).

The principle of absolute guarantee of judicial protection is a supreme principle of the Italian constitutional order and, as such, constitutes a limit to the introduction in the domestic legal order of generally recognized norms of international law under Article 10, para. 1 of the Constitution.

So, observed the Constitutional Court, the impossibility of effective judicial protection of fundamental rights, acknowledged by the ICJ, makes apparent the contrast between international law, as defined by the ICJ, and Articles 2 and 24 of the Constitution. This contrast, insofar as the international law of immunity of States from the civil jurisdiction of other States includes acts considered jure imperii that violated international law and fundamental human rights, obliged the Constitutional Court to declare that, to the extent that international law extends immunity to actions for damages caused by such serious violations, the referral of Article 10, para. 1 of the Constitution does not operate.

Consequently, insofar as the law of immunity from jurisdiction of States conflicts with the aforementioned fundamental principles of the Constitution, it has not entered the Italian legal order and, therefore, does not have any effect therein.

The Constitutional Court also concluded that international law, to which the Italian legal order conforms under Article 10, para. 1 of the Constitution, does not include the norm of immunity of States from civil jurisdiction in the case of actions for damages for war crimes and crimes against humanity, in breach of inviolable human rights.

These rights are therefore not deprived of the necessary effective judicial protection.

…and now, what’s the next step for the judicial dialogue between the Courts?

 

Suggested citation: Francesco Duranti, War Crimes, Constitution, International Law: …Quid Juris? The Opinion of the Italian Constitutional Court, Int’l J. Const. L. Blog, Dec. 17, 2014, available at: www.iconnectblog.com/2014/12/war-crimes-constitution-international-law-quid-juris-the-opinion-of-the-italian-constitutional-court/

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Published on December 17, 2014
Author:          Filed under: Developments
 

What’s New in Comparative Public Law

Angélique Devaux, French Qualified Attorney (Notaire Diplômée), LL.M American Law (IUPUI Robert H. McKinney School of Law)

In this weekly feature, I-CONnect publishes a curated reading list of developments in comparative public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the comparative public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Comparative Public Law,” please email contact.iconnect@gmail.com.

Developments in constitutional courts

  1. Supreme Court of Canada, in a divided opinion, ruled that police can conduct a limited search of suspect’s cellphone without getting a search warrant, regardless of password protection.
  2. Polish Constitutional Tribunal Justices ruled ban on ritual slaughter unconstitutional
  3. A State Appeals Court in Wisconsin ruled that government has no constitutional obligation to provide health care
  4. The US Supreme Court ruled that in seeking a new trial, a defendant may not use one juror’s affidavit of what another juror said in deliberations to demonstrate the other juror’s dishonesty duringvoir dire
  5. Turkish Constitutional Court rejected individual applications that say the new presidential palace was built illegally

In the news

  1. A mother is suing the French State after her 16 year old son travelled to Syria to join jihadists fighting there
  2. The Younger Comparativists Committee (YCC) of the American Society of Comparative Law (ASCL) invites nominations, including self-nominations, for the first annual Richard M. Buxbaum Prize for Teaching in Comparative Law.
  3. Liberia’s Supreme Court rejects petition to delay elections over Ebola
  4. The International Criminal Court confirmed four charges of crimes against humanity against Charles Ble Goude, and committed the ally of former Ivory Coast President Gbagbo to trial at the Hague.
  5. The federal constitutional court in Karlsruhe, Germany is set to decide whether it is fair that beneficiaries of inherited corporate wealth in Germany enjoy sweeping tax exemptions.
  6. Illinois passes bill that makes it illegal to record the police
  7. Nevada poised to create an intermediate Court of Appeals

New scholarship

  1. Delivré and E. Berger, Popular Justice in Europe (18th-19th centuries), Duncker and Humblot Berlin (2014), (offering a comparative overview of the history of popular justice in France, Germany, Italy, The Netherlands, Belgium and England)
  2. Vernon Valentine Palmer, Mohamed Y Mattar, and Anna Koppel (eds), Mixed Legal Systems, East and West, Ashgate (January 2015) (Advancing legal scholarship in the area of mixed legal systems, as well as comparative law more generally, and expanding the comparative study of the world’s legal families to those of jurisdictions containing not only mixtures of common and civil law, but also to those mixing Islamic and/or traditional legal systems with those derived from common and/or civil law traditions)
  3. Sylvain Soleil, Le modèle juridique français dans le monde. Une ambition, une expansion (XVIe-XIXesiècle) [French Legal Model in the World. An ambition, an Expansion (16th-19th centuries)], IRJS éditions (2014) (Explaining why and how the French Legal system has gradually emerged as a legal model in the world) [Book in French]
  4. Adam Shinar, Method and Culture in American Constitutional Law: A Critique of Proportionality and Constitutional Culture, Jerusalem Review of Legal Studies,(forthcoming 2015) (reviewing Moshe Cohen-Eliya’s and Iddo Porat’s book “Proportionality and Constitutional Culture” and offering two reasons why proportionality has not been embraced in the U.S.)

Call for papers

  1. The ICLARS Series on Law and Religion (Ashgate ed.) welcomes proposals for its new series on any matter falling under ‘law and religion’ widely defined.
  2. The Legal Information Review invites calls for papers for its first volume planned for December 2015
  3. Boston College Law School and the International Association of Constitutional Law’s Research Group on Constitution-Making and Constitutional Change invite submissions for a full-day workshop on comparative constitutional amendment, to be held on the campus of Boston College Law School on Friday, May 15, 2015
  4. The University of Milan Department of National and Supranational Law in collaboration with The Younger Comparativists Committee of the American Society of Comparative Law request submissions for a Workshop on Comparative Constitutional Law at the University of Milan, Italy on May 4, 2015.
  5. The Younger Comparativists Committee of the American Society of Comparative Law is pleased to invite submissions for the Phanor J. Eder J.D. Prize in Comparative Law, in connection with its Fourth Annual Conference, to be held on April 16-17, 2015, at Florida State University in Tallahassee, Florida
  6. The Program in Law and Public Affairs, Princeton University, co-sponsored by the American Society of Comparative Law, invites paper submissions to the next annual Comparative Law Work-in-Progress Workshop, which will be held on 6-7 March 2015 in Princeton University.
  7. The School of Law, KIIT University (India) calls for papers for the Vol. 4, Issue 2 of the “KIIT Journal of Law and Society”
  8. Melbourne Journal of International Law calls for papers for its coming issue No 16 that will be published in June 2015
  9. The National Law Institute University Law Review calls for papers for the Sixth Issue to be published in April, 2015

Elsewhere on blogs

  1. Peter J. Hammer, Mich-issippi Burning: Marriage Equality, Anti-Gay Animus and Majoritarian Politics, Jurist
  2. Mark Sherman, Justice Antonin Scalia Says The Constitution Is Silent On Torture, Huffington Post
  3. Steven D. Schwinn, How Elite Lawyers Influence the Supreme Court, Constitutional Law Prof Blog
  4. Constitutional Law Group, News: Reforming electoral law across the UK, UK Constitutional Law Association
  5. Chris Edelson, Torture is What the U.S. is Right Now, But That Can Be Changed, American Constitution Society for Law and Policy
  6. Michael Smith, How Not to Write a Petition for Certiorari, Michael Smith’s Law Blog
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Published on December 15, 2014
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Call for Papers–Deadline: January 20, 2015–Workshop on Comparative Constitutional Law at the University of Milan

The University of Milan
Department of National and Supranational Law

in collaboration with

The Younger Comparativists Committee 
of the American Society of Comparative Law

request submissions for

Workshop on Comparative Constitutional Law
University of Milan
Milan, Italy
Monday, May 4, 2015
10h00-16h00

The University of Milan’s Department of National and Supranational Public Law and the Younger Comparativists Committee of the American Society of Comparative Law welcome the submission of papers for a full-day workshop on comparative constitutional law, to be held on the campus of the University of Milan on Monday, May 4, 2015 from 10h00 to 16h00.

This workshop is convened by Antonia Baraggia (Milan), Cristina Fasone (EUI), and Richard Albert (Boston College).

Purpose of Workshop

The purpose of this workshop is to convene a group of younger scholars whose primary field of research is comparative constitutional law.

Structure of Workshop

This full-day workshop will feature 5 papers selected through this Call for Papers. The day will begin at 10h00. Each paper will be allocated one hour of time, including 15 minutes for the author’s presentation and 45 minutes for group discussion.

Eligibility

Submissions are invited from younger scholars who have been teaching and/or researching in the field for no more than ten years.

Submission Instructions

Interested scholars should email no more than one (1) paper by January 20, 2015 to the following address: judy.yi@bc.edu. Papers should be no longer than 30,000 words, and may not have been published by the time of the workshop. Preference will be given to papers that are still in development. Scholars should identify their submission with the following subject line: “Milan—Paper Submission—Comparative Constitutional Law Workshop.”

Notification and Participation Requirements

Successful applicants will be selected by a Workshop Selection Committee and notified no later than February 20, 2015.

Costs

There is no cost to participate in the workshop. Successful applicants are responsible for securing their own funding for travel, lodging and other incidental expenses.

Questions

Please direct inquiries in connection with this workshop to Antonia Baraggia (Milan) by email at antonia.baraggia@gmail.com.

Please circulate this Call for Papers widely.

Workshop Selection Committee

Antonia Baraggia (Milan)
Cristina Fasone (EUI)
Richard Albert (Boston College)

Younger Comparativists Committee

Richard Albert (Boston College) (Chair)
Virginia Harper Ho (Kansas)
Wulf Kaal (St. Thomas—Mineapolis)
Sudha Setty (Western New England)
Ozan Varol (Lewis & Clark)

About the University of Milan – Department of National and Supranational Public Law

The Department of Italian and Supranational Public Law at the University of Milan promotes and coordinates scientific research and teaching in administrative, constitutional, international, European Union and procedural civil law. The Department publishes and publicizes scholarship; organizes seminars as well as national and international meetings; manages relationships with equivalent European and world scientific institutions; maintains connections with academic institutions at home and abroad, and promotes scholarly exchange among professors and researchers. Consistent with the guidelines indicated in the European Research Area (ERA) Project, the Department favors a multidisciplinary approach to research.

About the Younger Comparativists Committee

The Younger Comparativists Committee (YCC) is a committee of the American Society of Comparative Law (ASLC), one of the world’s leading learned societies for the study of comparative law. The YCC serves as a forum for younger comparative law scholars (with ten years or fewer of faculty experience), creates opportunities for younger comparativists to develop and share their research, and facilitates and promotes the scholarly exchange of ideas and research in all areas of comparative law. It hosts an annual global conference in comparative law and advises the ASCL in its activities related to younger comparativists. For more, please visit: http://www.ascl.org/younger-comparativists.

About the Convenors

Antonia Baraggia Antonia Baraggia is Research Fellow in Constitutional Law at University of Milan, Department of National and Supranational Public Law. She has been Visiting Fellow at Fordham University School of Law. Baraggia holds a PhD in Public Law from University of Turin. She serves as one of the members of the Affiliates Advisory Group of the YCC. Her research interests include citizenship, federalism, bicameralism, human rights, the right to education and the autonomy of Universities considered in a comparative perspective.

Cristina Fasone is a Max Weber Post-Doctoral Fellow in Law at the European University Institute, Florence, where she is also one of the coordinators of the project on “Constitutional Change through Euro-Crisis Law.” Her research focuses on parliaments and Constitutional Courts in the EU and on forms of government. She holds a PhD in Comparative Public Law from the University of Siena and she teaches Comparative Public Law at LUISS Guido Carli University of Rome. She has been a Visiting Researcher at the Georgetown University Law Centre (US) and a Visiting Scholar at the Victoria University of Wellington (NZ). Cristina Fasone serves as one of the members of the Affiliates Advisory Group of the YCC.

Richard Albert is a constitutional law professor at Boston College Law School, where he received the 2013 and 2014 Anthony P. Farley Award for excellence in teaching. His research focuses on comparative constitutional change and amendment. He serves as Chair of the YCC, an elected member of the Executive Committee of the American Society of Comparative Law and the International Academy of Comparative Law, a member of the Governing Council of the International Society of Public Law, a member of the Scientific Advisory Board of the International Journal of Constitutional Law, and a founding editor of I-CONnect. Prior to joining the faculty at Boston College Law School, he served as a law clerk to the Chief Justice of Canada. Richard Albert holds degrees from Yale, Oxford and Harvard.

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Published on December 13, 2014
Author:          Filed under: Developments
 

Video Interview: National Supreme Courts and Legal Complexity, Featuring Kate Glover

Richard Albert, Boston College Law School

In this latest installment of our new video interview series at I-CONnect, I interview Kate Glover on the subject of national supreme courts and legal complexity, with a particular focus on Canada in comparative perspective.

In the interview, we discuss why and how supreme courts matter, whether conventional approaches to the study of supreme courts sufficiently account for legal complexity, and what kinds of new questions can help us more fully understand the role of national supreme courts in their legally pluralistic contexts. Along the way, we discuss the history, function and future of the Supreme Court of Canada.

Kate Glover is a doctoral candidate in law at McGill University. A former law clerk for Justice Rosalie Abella of the Supreme Court of Canada, she has held the O’Brien Fellowship in Human Rights and Legal Pluralism and now holds a Vanier Scholarship. She recently served as junior counsel for the amicus curiae before the Supreme Court of Canada in the Senate Reform Reference. She holds degrees from McGill, Cambridge and Dalhousie. In January 2015, she will begin a research fellowship at the University of Toronto, Faculty of Law.

The full interview runs 49 minutes, and is available here.

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Published on December 11, 2014
Author:          Filed under: Analysis
 

The International Law Response to the Hong Kong Electoral Reform Debate

Alvin Y.H. Cheung, Visiting Scholar, U.S.-Asia Law Institute, NYU School of Law

More than two months into Hong Kong’s pro-democracy protests, the city’s police force – armed with teargas and, in some instances, assisted by vigilantes – renewed its assault on protest encampments in the districts of Mongkok and Admiralty.  As debate continues to rage over the municipal law implications of civil disobedience and the use of private persons seeking civil injunctions to enforce public rights of way, the international law implications of the underlying dispute – over Chief Executive electoral arrangements for 2017 – are finally being discussed internationally.

On October 23, 2014, the UN Human Rights Committee in Geneva expressed its concern over Beijing’s proposal for the 2017 Chief Executive elections.  Under these arrangements, a Nominating Committee that was unrepresentative of the Hong Kong public would “vet” candidates for political fealty to Beijing.  The Committee’s draft report following up on its Concluding Observations on Hong Kong noted the Hong Kong Government’s consultations on electoral reform, but remained dissatisfied:

The Committee notes the public consultation carried out by the State party on the selection methods for the CE [Chief Executive] in 2017 and on the election of the LegCo [Legislative Council] in 2016.  The Committee also notes the decision of 31 August 2014 of the NPCSC [National People’s Congress Standing Committee].  The Committee requires additional information on the specific method for selecting the CE and the LegCo by universal suffrage, which includes the right to vote and the right to stand for election, and its compatibility with the Covenant.  The Committee also requires information on measures taken to withdraw the reservation to article 25(b) of the Covenant.

The Committee’s position seems to be that Article 25(b) of the ICCPR – guaranteeing both the right to vote and the right to stand for election – applies to elections for Chief Executive, notwithstanding the Hong Kong Government’s position that the reservation to Article 25(b) made by the UK in 1976 on Hong Kong’s behalf remains in force.  This may be a clarification of – or perhaps a partial retreat from – its Concluding Observations from 2013, which appeared to accept that the reservation remained in place, without citing its previous Concluding Observations.

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Published on December 10, 2014
Author:          Filed under: Analysis
 

The Electoral Threshold Case in Turkey

–Ali Acar, PhD Student, European University Institute

According to recent statements made to a journalist by the President Hasim Kilic of the Turkish Constitutional Court,[1] the Court will soon deliver a decision on the 10% electoral threshold that exists for political parties to be represented in Parliament in a case brought before the Court by three political parties through the constitutional complaint, also known as the “individual application” mechanism. The statement made by Justice Kilic has led the Court to confront a difficult situation, once again. A heated public debate has already begun around the issue.[2]

Pursuant to Article 33 of the Law No. 2839 on the Election of Members of the National Assembly, the election threshold in Turkey is 10% of valid total votes cast nationwide.

The positions of the political parties, which are currently in the Parliament, vis-à-vis the electoral threshold can be summarized as follows. The Justice and Development Party (AKP), the government party, supports the threshold for the obvious reason that the threshold favors its majority and power, despite its earlier promises to abolish the threshold. The main opposition party, the Republican People’s Party (CHP) supports abolition of the threshold, and has made many calls for it. Another opposition party, the Nationalist Movement Party (MHP) supports the threshold, because according to the MHP any lower threshold will allow the pro-Kurdish political movement to gain more representative power. Hence, it is clear that the pro-Kurdish political party, the Peoples’ Democratic Party (HDP), is firmly for abolishing the threshold. In fact, members of an earlier pro-Kurdish political party brought a case before the European Court of Human Rights (ECHR). The case was decided by the ECHR (the Grand Chamber) in 2008 in the case of Yumak and Sadak v. Turkey. In the final ruling in that case, the ECHR held, with majority of 13 to 4, that there was no violation of Article 3 of Protocol 1 or the right to free election by noting though that “ …a 10% electoral threshold appears excessive. In that connection, it concurs with the organs of the Council of Europe, which have stressed the threshold’s exceptionally high level and recommended that it be lowered.”[3]

So where does the controversy come from in the present case to abolish the electoral threshold?

Read the rest of this entry…

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Published on December 9, 2014
Author:          Filed under: Developments
 

What’s New in Comparative Public Law

Mohamed Abdelaal, Alexandria University (Egypt)

In this weekly feature, I-CONnect publishes a curated reading list of developments in comparative public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the comparative public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Comparative Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. German Constitutional Court blocks the extradition of a hacker to U.S.
  2. UK High Court rules prison book ban unlawful.
  3. Turkish Constitutional Court considers 10 percent election threshold.
  4. Illinois’ state pension overhaul ruled unconstitutional.
  5. A federal judge ruled Wednesday that Indiana’s law that redefines abortion clinics is unconstitutional.

In the News

  1. Nigeria rights groups seeking war crimes investigation.
  2. China celebrates first Constitution Day.
  3. China marks first “Constitution Day” as party maintains primacy.
  4. China’s Communist party expelled its former security tsar, Zhou Yongkang.
  5. The US Supreme Court hears arguments on threatening social media posts.
  6. The US Supreme Court hears arguments on trademarks and sentencing.
  7. US states challenge Obama immigration order.

New Scholarship

  1. Jenia Iontcheva Turner, The Exclusionary Rule as a Symbol of the Rule of Law, Southern 67 Methodist University Law Review, 2014 (discussing the exclusionary rule in comparative perspective as a rule of law enforcement tool to hold the executive within the limits of the law and preventing government lawlessness)
  2. Steven G. Calabresi & Bradley Silverman, Hayek and the Citation of Foreign Law, Michigan State Law Review, Forthcoming (exploring the use of citation of foreign law in U.S. courts, and concluding that foreign law should be cited where it is informative)
  3. Jessica Bulman-Pozen & David Pozen, Uncivil Obedience, Columbia Law Review, Forthcoming (explaining and evaluating the phenomenon of uncivil obedience, and exploring tools that have emerged to limit its use)
  4. Michal Bobek, Judicial Selection, Lay Participation, and Judicial Culture in the Czech Republic: A Study in a Central European (Non)Transformation, (Forthcoming in S Turenne (ed), The Independence of a Meritorious Elite: the Government of Judges and Democracy (Reports to the 19th International Congress of Comparative Law in Vienna, Springer, 2015) (discussing judicial selection and lay participation in the Czech judicial system)
  5. Aneesa Walji, Constitution-Making in Egypt: The Role of Constitutional Court Judges, in Revolution as a Process: The Case of the Egyptian Uprising edited by Adham Hamed (Wiener Verlag für Sozialforschung, 2014) (examining the role of judges in Egypt’s second constitution-making process, and concluding that while there may be value to having judges formally involved in constitution building, much is at risk for judicial independence in the process.)

Calls for Papers

  1. The International Journal of Legal & Social Studies (IJLSS) is now accepting submissions for its upcoming issue.
  2. The Southern African Society of Legal Historians invites submissions for its annual conference to be held from 5-9 October 2015 at Sun City in Johannesburg. The conference theme is “Legislation in the Western legal tradition.”
  3. The Irish Society of Comparative Law welcomes submissions for its annual conference to be held on 2-4 June, 2015 in the University of Limerick in Limerick, Ireland.
  4. Política y gobierno invites submissions of articles, research notes, and bibliographical essays on the topic “Conflict, Violence, and Democracy in Latin America” to be included in a special bilingual issue that will be published on December 2015 (Vol. XXII, no. 1, 2016).
  5. The student chapter of the American Constitution Society at Barry University School of Law issued a call for papers for the First Annual Constitutional Law Scholars Forum to be held on MARCH 20, 2015 at at the Dwayne O. Andreas School of Law Campus, Orlando, FL.

Elsewhere on Blogs

  1. Jean-Marie Kamatili, Lèse-majesté in Thailand: The Rule of Law Crisis, Jurist
  2. Ruthann Robson, Supreme Court Hears Arguments on “Facebook Threats” Case: Elonis v. US, Constitutional Law Prof Blog
  3. Elizabeth LaForgia, Ruling would permit Florida same-sex marriages in January, Jurist
  4. Mustafa Akyol, Constitutional Court as the new ‘coup’ HQ, Hurriyet Daily News
  5. Joe Palazzolo, Civil Rights Investigations: How They Work, WSJ Law Blog
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Published on December 8, 2014
Author:          Filed under: Developments
 

Is Social Media a Human Right? Exploring the Scope of Internet Rights

–Brian Christopher Jones, Postdoctoral Research Fellow, Institutum Iurisprudentiae, Academia Sinica*

Earlier this year Jason Tenenbaum penned an interesting piece for I-CONnect about a general right to access the internet.[1] Mr Tenebaum’s focus on international covenants, such as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), nicely laid out the basic arguments for such a protected right. This comment provides a potentially more pressing view of Tenenbaum’s argument, asking a slightly more difficult question: should social media be recognized as a human right?

Social media has become (or is sometimes perceived as) one of the most significant threats to not just authoritarian and quasi-authoritarian governments, but even at times to liberal democracies. When wanting to suppress free speech and the possibility of insurrection an initial step governments often take is shutting down not necessarily the whole internet, but social media in particular. Turkey did this earlier this year, temporarily blocking Twitter after the Prime Minister attacked the site.[2] Recently an Iranian prosecutor gave the government thirty days to block social media such as Whatsapp and other services.[3] According to a 2013 study of sixty countries by Freedom House, nineteen countries block some types of social media or other communication applications.[4] Countries that did so included: India, Turkey, China, Iran, Syria, Pakistan, and Ethiopia, among others.

But social media bans, or threats of such bans, have also been linked to less controversial and long-standing democratic governments. During the London 2011 summer riots, Prime Minister Cameron debated blocking Twitter and other messaging applications.[5] In December 2012 Australian Liberals were advised to close their social media accounts ahead of the 2013 general election.[6] Many backbench Australian MPs deprecated the proposal and refused to do so. In May of this year Thailand’s military junta threatened to block social media for inciting violence or criticizing military leaders,[7] and the Malay government has also threatened to block Facebook because of a rising level of abuses.[8] Most recently, popular photo-sharing application Instagram was blocked during the Umbrella Movement protests in Hong Kong.[9]

These actions raise a number of difficult questions. In particular, are there times when governments can legitimately block social media services (such as during crises or riots), or do citizens have an unfettered right to social media no matter the circumstances? If such services are determined to be a right, what are bases for acknowledging this? Additionally, what role has social media played under authoritarian governments and where is it likely to lead? This comment attempts to briefly answer some of these questions.

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Published on December 5, 2014
Author:          Filed under: Analysis