Blog of the International Journal of Constitutional Law

Announcement: Second Issue of the Africa Journal of Comparative Constitutional Law

–Tom Kabau, Co-Editor in Chief, Africa Journal of Comparative Constitutional Law; Senior Lecturer in Law, School of Law, Jomo Kenyatta University of Agriculture and Technology

We are pleased to highlight in this forum the second issue of the Africa Journal of Comparative Constitutional Law (AJCCL) (volume 2, 2017). The AJCCL is published by JUTA Law of South Africa and is hosted by the Kenya School of Law in Nairobi. Supported by a distinguished International Advisory Board, the AJCCL provides expert analysis of and commentary on constitutional issues relevant to Africa and the developing world. The contents of this second issue include:

  • Berihun Adugna Gebeye, ‘The potential role of directive principles of state policies for transformative constitutionalism in Africa’;
  • Conrad M Bosire, ‘Interpreting the power of the Kenyan Senate to oversee national revenue allocated to the county governments: Building a constitutionally tenable approach’;
  • Michael Nyongesa Wabwile, ‘Human rights and family policy issues under Kenya’s Marriage Act of 2014’;
  • Muriuki Muriungi, ‘Procedural technicalities in the resolution of election disputes by the Supreme Court of Kenya’;
  • Gabriel O Arishe, ‘Proscription of floor crossing in Nigeria: The limits of the Constitution and the Supreme Court’;
  • Ndivhuwo Ishmel Moleya, ‘The right of access to information in the Kenyan Constitution: An indirect denial of other fundamental rights to non-citizens?’
  • Brian Sang YK,Jean Thomas, Public Rights, Private Relations (Oxford University Press, 2015)’ (book review).

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Published on September 21, 2018
Author:          Filed under: Developments

The Science of Homosexuality Does Not Matter, Says the Indian Supreme Court in its Historic Navtej Johor Decision

–Shubhankar Dam, Professor of Public Law and Governance, University of Portsmouth, England

“The State shall not deny to any person equality before the law or equal protection of the laws”, the Constitution of India majestically says.

The Indian Penal Code, section 377, however, appeared to do just that. By outlawing certain forms of intimate conduct, the penal law branded a class of persons criminals in waiting. Did the provision violate the Constitution?

A cast of characters – dancers, designers, entrepreneurs and engineers – challenged the provision before the Supreme Court. Five judges heard the matter. In Navtej Johar v Union of India, they reached a unanimous outcome: Section 377 is partly invalid. Criminalizing same-sex conduct of consenting adults violates the Constitution. They penned four separate, soulful opinions to explain why.

The opinions wax about LGBT rights only outwardly. Their deepest instincts, instead, are meditations on a much grander idea: Choice, the freedom to choose. The verdict re-imagines the old promise of swaraj: To become self-governing Indians, not simply part of a self-governing India.

How did a petition for LGBT rights blossom into a manifesto of choice for all Indians?

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Published on September 20, 2018
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The Indonesian Constitutional Court and the Crisis of the 2019 Presidential Election

–Stefanus Hendrianto, Boston College

After many months of speculation, the candidates for the 2019 Indonesian presidential election announced their choice of running mates on August 9, 2018. The incumbent President Joko “Jokowi” Widodo, who ran on the platform of diversity and social equality, chose the 75-years-old conservative cleric Ma’ruf Amin as his running mate. Meanwhile, Jokowi’s arch nemesis, General Prabowo Subianto, will run with a young investment banker-turned-politician: Jakarta Deputy Governor Sandiaga Uno.

Both Jokowi and Subianto made a surprising twist in choosing their running mates. When Jokowi began his political career as a Mayor of Solo, he picked a Christian politician as his running mate, and he later picked a Christian of Chinese-descent as his Vice Governor of Jakarta. In the 2014 Presidential Election, he ran on the same ticket with a businessman cum politician, Jusuf Kalla. Surprisingly, for the upcoming presidential election, Jokowi picked a running mate who has a robust anti-pluralism record. Amin, who has been the chairman of Indonesia’s Ulama Council (Majelis Ulama Indonesia, or MUI), and the supreme leader of the Nahdlatul Ulama, has played a pivotal role in fueling discrimination and persecution against religious minorities in Indonesia.

Meanwhile, Subianto also made a dramatic move in picking his running mate. Subianto is a former top General, with strong links to Islamists and two major Islamist parties supported him, the Indonesian Prosperous Party (Partai Keadilan Sejahtera –PKS) and the National Mandate Party (Partai Amanat Nasional –PAN). Subianto’s coalition partners had strongly recommended that he pick an Islamic cleric as his running mate. But in the end, Subianto ignored the recommendation made by Islamist groups that he choose the celebrity Islamic preacher Abdul Somad as his running mate. Instead, Subianto chose a western-educated investor, Sandiaga Uno.

Some people are lamenting the fact that the upcoming presidential election is likely to be dull as it will be merely a rematch of the 2014 election when the then-political outsider Jokowi defeated Subianto, who has deep ties to Indonesia’s business and military elite. But the primary problem is that the 2019 presidential election offers no real choice to the people. On the one hand, as Jokowi picked a hard-line cleric as his running mate, many of his supporters are feeling conflicted about the decisions of a man who rode into office back in 2014 as a reformer and the advocate of pluralism. Thus, they are debating whether to sit out the election to protest against a vice- presidential pick who is widely known for his many abusive fatwas against minorities. On the other hand, the Subianto-Uno ticket does not offer a better choice. Subianto himself is linked with past human rights abuses, while his running mate also has a tainted record. Uno played a pivotal role plotting the campaign to oust then-incumbent Governor of Jakarta Basuki Tjahaya Purnama in the 2017 gubernatorial election, which was marred by divisive, sectarian, and racial rhetoric.

The lack of a credible contender in next year’s election would, indeed, raise questions about Indonesia’s young democracy. Analysts believe that political parties focusing on patronage-style politics rather than the pursuit of an ideological agenda or reform have led to a dearth of potential presidential candidates. But the biggest culprit is a Constitutional Court that both created the current crisis and failed to intervene to resolve it.

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Published on September 19, 2018
Author:          Filed under: Analysis

First Rivers, then Mountains, and Now the Amazon. Do “Things” Have Rights?

Jorge Iván Palacio, former Justice of Colombia’s Constitutional Court and Supreme Court of Justice, and Juan C. Herrera, former law clerk of the Constitutional Court of Colombia; PhD Researcher and Teaching Assistant in Constitutional Law, Universitat Pompeu Fabra; Visiting Researcher at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg

In the last few decades, challenges that may reconfigure our relationship with our environment and the “things” that are part of it have burst onto the scene. Recent legislative and case-law precedents have recognized the legal rights of the Whanganui River and Taranaki Mountain in New Zealand, the Ganges River in India, the Atrato River and the Amazon region in Colombia. This tendency arises from an “ecocentric” approach that is based on a fundamental premise: humans do not possess the relationship with the earth; instead, humans are the ones who belong to the planet, not in terms of property, but as one part of the whole.

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Published on September 18, 2018
Author:          Filed under: Analysis

What’s New in Public Law

–Mauricio Guim, Instituto Tecnológico Autónomo de México (ITAM)

In this weekly feature, I-CONnect publishes a curated reading list of developments in 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 public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email

Developments in Constitutional Courts

  1. The Supreme Court of India upheld a forestry official’s plan to kill a man-eater tigress if a concerted effort to capture her fails.
  2. A High Court in South Africa ordered the state to pass legislation regulating Muslim marriages within 24 months. The order requires the state to balance the rights of women and children with traditional aspects of Sharia Law.
  3. A High Court in Egypt sentenced 75 people to death, including leaders of the outlawed Muslim Brotherhood, for their involvement in a 2013 sit-in protests that spiraled into violenceand resulted in the death of hundreds of demonstrators by security forces.
  4. The Supreme Court of India issued an interim order allowing a 25 percent safeguard duty on solar imports. Experts suggest that the Supreme Court’s decision will significantly benefit domestic producers of solar panels.
  5. The Supreme Court of India issued an injunction banning construction activities in several union territories until these states comply with solid waste management programs.
  6. India’s Supreme Court held the final hearings of the ongoing case between cryptocurrencies exchanges and the central bank concerning the latter’s blanket banking ban.
  7. The Supreme Court of Israel rejected a petition filed against the practice of using poultry a pre-Yom Kippur Ritual.
  8. The Supreme Court of Mexico joined elected President Lopez Obrador’s calls for austerity trimming its budget by more than 15 percent.
  9. The Mexican ruling party MORENA rejected the Supreme Court’s budget reduction as insufficient, and will ask that Court to make further budget cuts.

In the News

  1. The House of Representatives of Mexico approved a law that prohibits any official from earning more than the President.
  2. Justice Ranjan Gogoi has been appointed as the 46th Chief Justice of India Supreme Court.
  3. More than 16,200 ads hit airwaves to sway Senate vote on U.S. Supreme Court Justice nominee Brett Kavanaugh.
  4. European lawmakers voted by a wide margin to begin a punishment procedure against Hungary for potentially breaching democratic norms, a measure never previously initiated by the European Parliament.
  5. Cubans can now join public debates on new Constitution through digital platforms.
  6. The National Security Advisor of the United States, John Bolton, made an excoriating attack on the International Criminal Court and threatened the institution with sanctions.
  7. José Eduardo dos Santos, the former president of Angola who was one of Africa’s longest-serving heads of state, stepped down on Saturday from the leadership of the country’s governing party, Popular Movement for the Liberation of Angola.
  8. Venezuela and Bolivia accused the United States of plotting a coup to overthrow President Nicolás Maduro, who has presided over the near collapse of that country.
  9. Cambodia’s imprisoned opposition leader, Kem Sokha, was freed on bail after spending a year locked up on charges of conspiring with the United States in a plot to bring down Cambodia’s government.
  10. Legal experts denounced that Australia has given “God powers” to its immigration ministers making Australia’s already opaque border control and immigration system even more vulnerable to cronyism, secrecy and abuse.
  11. Several of Israel’s European allies, among them France, Spain, Germany and the United Kingdon, requested Israeli authorities to call off the demolition of a Bedouin village in the West Bank, despite effective approval from the Supreme Court of court last week.
  12. Families of activists jailed during Nicaragua’s anti-government protests in April have marched in the capital, Managua, to demand their release.
  13. The state of Texas passed a law requiring embryonic and fetal remains, following abortion or miscarriage, be given a “proper” burial.
  14. The Trump administration ordered the closure of the Palestine Liberation Organization office in Washington, saying that the PLO “has not taken steps to advance the start of direct and meaningful negotiations with Israel.”
  15. The Palestinian Liberation Authority filed a war crimes claim against Israel at the International Criminal Court over the expected demolition of the West Bank Village.
  16. Exxon Mobil is taking to the United States Supreme Court a case against Massachusetts Attorney General Maura Healey for authorizing a probe into whether Exxon Mobil hid from the public knowledge of climate change risks.
  17. The animal conservation group Fur-Bearers is challenging before the Supreme Court of Canada the British of Columbia conservation officers’ “unlimited authority” to kill wildlife.
  18. The Inkhata Freedom Party, following an increase in murders and sexual assaults, has called for a debate on whether the death penalty in South Africa should be revived.
  19. After twenty years of war, Ethiopia and Eritrea reopened crossing points on their shared border. The decision was part of a series of reconciliation moves that began in July when the two countries signed a peace agreement.
  20. Guatemalan president Jimmy Morales has launched a series of attacks against the International Commission against Impunity and its main prosecutor Iván Velasquez Gómez, leaving Guatemala at the brink of a constitutional crisis that threatens a backward slide into authoritarianism.
  21. Hundreds of thousands of pro-independence Catalans took over downtown Barcelona, in their largest show of force since a botched declaration of independence from Spain last October.
  22. Philippines President Rodrigo Duterte dares military officers to rebel amid standoff over opposition senator’s arrest.
  23. Jailed leftwing leader Lula drops out of Brazil presidential race. Ex-president abandons campaign to reclaim country’s leadership, naming Fernando Haddad as Workers party candidate.

New Scholarship

  1. Ana Micaela Alterio & Francisca Pou Giménez, Transformative Constitutionalism in Latin America: The Emergence of Ius Commune, Verfassungs un Recht in Übersee.
  2. Heinz Klug, Decolonization, Compensation, and Constitutionalism: Land, Wealth, and the Sustainability of Constitutionalism in Post-Apartheid South Africa, South African Journal on Human Rights (reviewing the historical legacies of apartheid and the conditions of the country’s democratic transition, and exploring ways to address the continuing legacies of apartheid today).
  3. Theunis Roux, The Politico-Legal Dynamics of Judicial Review (2018) (proposing a typological theory of judicial review regimes and testing how countries, such as India, Australia and Zimbabwe, transition between these types).
  4. Cary Franklin, The New-Class Blindness, Yale Law Journal (forthcoming) (showing that a non-trivial number of fundamental rights came to be recognized as such because they are essential not only to liberty but also to the equal citizenship of people without financial resources).
  5. Gábor Attila Tóth, Constitutional Markers of Authoritarianism (arguing that contemporary authoritarianism is a sui generis system between constitutional democracy and dictatorship, and suggesting that features of contemporary authoritarianism can be identified with the help of constitutional markers contained in the text of a constitution and the deep structure of a constitutional system).
  6. Aziz Z. Huq, Article II and Anti-Discrimination Norms, Michigan Law Review (forthcoming) (arguing that there is not analytically defensible and practicably tractable boundary between Japanese-American Internment in WWII and President Trump’s travel ban, and suggesting that the failed Supreme Court’s effort to distinguish them can be understood as an allowing an “Article II discretion to discriminate”).
  7. Adam M. Samaha & Roy Germano, Is the Second Amendment a Second-Class Right? (comparing five fields of constitutional litigation in the United States and finding that success rates of gun rights are at the low end).
  8. Sean Butler, Visions of World Order: Multipolarity and the Global Constitutional Framework (analyzing how the coming transition to multipolarity will affect the operation and evolution of the international legal regimes).
  9. Manuel Cases, Functional Justiciability and the Existence of a Dispute: A Means of Jurisdictional Avoidance (examining the Court’s treatment of the existence of a dispute jurisdictional objection as a general means of avoiding cases).

Call for Papers and Announcements

  1. The Law Department at the University of Florence and the Eötvös Lorán University Faculty of Law are hosting the Sixth Comparative Law Workshop on November 23, 2018. The topic of the workshop is “the principle of legal certainty from a comparative perspective.” Paper proposals are due October 5, 2018.
  2. The Institute for Comparative Federalism of Eurac Research and the Faculty of Social and Political Sciences of the University of Innsbruck are hosting the 10th edition of their Winter School on Federalism and Governance. The course will take place in Austria and Italy from 4 to 15 February. Applications are due October 21, 2018.
  3. The University of Sofia is holding the Sofia “Erasmus” Legal Science Week. The topic of the conference is the Role of Courts in Contemporary Legal Orders. The deadline for application submissions is December 15, 2018.
  4. The University of Melbourne Law School is requesting papers for its Cities and Federal Theory Workshop, which will take place in Melbourne on June 20, 2019. Applications are due November 1, 2018.
  5. The American Society for Political and Legal Philosophy will host its annual Conference at Boston University School of Law on September 28, 2018. The topic of the conference is Democratic Failure. RSVP here.
  6. The Journal of Internal Displacement and Internal Displacement Monitoring Centre welcomes manuscripts for the call on ‘Getting to 2030: The Future of Internal Displacement and Sustainable Development’ (Special Issue January 2019). The deadline for the submission is November 8, 2018.
  7. The Journal of Constitutional Law, issued by the Constitutional Court of Georgia, welcomes contributions for its next volume. The deadline for the submissions is October 1, 2018.
  8. The City College of New York invites submissions for its “Critical Perspective on Human Rights Conference that will be held on March 13-15, 2019. Proposal of abstract should be submitted by October 31, 2018.
  9. Centre for Law and Culture St Mary’s University, Twickenham with the University of Westminster and GSM London will host the Conference “Race: Why can’t the law effect genuine equality?”. Submissions of abstract of paper are welcomed by September, 28 2018.
  10. The Research Area “Migration and Diversity” of the WZB Berlin Social Science Center invites submissions for a multi-disciplinary conference on minority and majority rights. The deadline for the submissions is October 1, 2018
  11. The Asian Law Institute (ASLI) at the National University of Singapore will host the 16th ASLI Conference in Singapore on 11 and 12 June 2019. The ASLI invites submissions of abstract of paper by December 3, 2018.
  12. The IV International Congress “Perspectives of contemporary constitutionalism. On the occasion of the 70th anniversary of the Italian Constitution and the 40th Anniversary of the Spanish Constitution” that will be held in Murcia (Spain) on 28-30 November 2018, invites submissions of abstract of paper. The deadline for the submission is September 24, 2018.

Elsewhere Online

  1. Stephen Breyer, American Courts Can’t Ignore the World, The Atlantic.
  2. David R. Cameron, Gain for Sweden Democrats and parliamentary deadlock in Sunday’s election, Yale McMillan Center.
  3. Daniel Kelemen & Kim Lane Scheppele, How to Stop funding Autocracy in the EU, Verfassungsblog.
  4. Michael W. McConnell, Look past the politics–Kavanaugh superbly qualified for the U.S. Supreme Court, San Francisco Chronicle.
  5. Kanad Bagchid, Decriminalizing Homosexuality in India as a Matter of Transformative Constitutionalism, Verfassungsblog.
  6. Ilya Somin, Why Settled Law Isn’t Really Settled– and Why That’s Often a Good Thing, Reason.
  7. Simon Tisdall, Trump’s Attack on ICC is the unacceptable face of US exceptionalism, The Guardian.
  8. Ishaan Tharoor, The White House’s New Attack on the International System, Washington Post.
  9. Dimitry Kochenov, False Accountability, Elusive Rule of Law, Verfassungsblog.
  10. Greg Lukianoff & Adam Goldstein, Good New and Bad New about Campus Free Speech Codes, Reason.
  11. David Super, The Paradox of Liberal Fascination with an Article V Convention, Balkanization.
  12. Sandy Levinson, Abandon All Hopes, Why I Persist, Balkanization
  13. Benedict Douglas, The Fundamental Tension Underlying the U.K. Constitution, U.K. Constitutional Law Association.
  14. Madara Melnika & Julian Senders, Self-Protecting Democracy and Electoral Rights, Verfassungsblog.
  15. Kevin Hay, Canadians Need to Debate Judicial Activism, The Province.
  16. Gerald Magliocca, Our Civic Religion, Balkanization.
  17. Mark Tushnet, On “Magic Bullets” and a Constitutional Convention, Balkanization.
  18. Kahraman Altun & Johannes Müler, WTO Option in Practice: How No Deal Brexit Would Seriously Damage Key UK Industries, Verfassungsblog.
  19. Akeksandar Pavkovíc, How likely –and dangerous– is a Kosovo/Serbia “Land Swap”?
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Published on September 17, 2018
Author:          Filed under: Developments

UN Treaty Body Views and their Domestic Legal Effects (in Spain): An Alternative Take

–Başak Çalı, Professor of International Law, Hertie School of Governance, Editor in Chief, Oxford Reports on UN Human Rights Treaty Body Views

A recent post on I-CONnect by Viljam Engström discussed the Spanish Supreme Court judgment on the domestic legal effects of the views of the CEDAW Committee in the case of González v Spain. Whilst Engström reported the Supreme Court’s interpretation of the CEDAW View as legally binding in the Spanish legal order as an interesting development, he proceeded to make three further points about the CEDAW Committee’s views in this case and the core functions of the UN Human Rights Treaty Bodies more generally.

First, he observed that the views of UN Treaty Bodies delivered in individual cases are not formally legally binding. Second, Engström proposed that the views delivered by the UN Treaty Bodies in individual complaints are not the primary function of these bodies, due to their broader compliance monitoring functions. Third, Engström argued that attaching binding status to the views of the UN Treaty Bodies may, in the long run, undermine the compliance monitoring functions of these bodies, which depend on the goodwill of the state parties to engage with their policy recommendations. In other words, the hardening of obligations may lead to a chilling effect on state co-operation with the UN Treaty Bodies.

In this post, my aim is to offer an alternative take on domestic hardening of views of UN Treaty Bodies.

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Published on September 14, 2018
Author:          Filed under: Analysis

Are Constitutional Democracies Really in Crisis?

Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School

It may seem churlish for one of the co-editors of the recently published Constitutional Democracies in Crisis? (with Mark Graber and Sanford Levinson) to raise questions about what readers might take to be the book’s basic conceptualization, that we are experiencing a widespread crisis for constitutional democracy. For me, though, the question mark at the end is as important as are the words that precede it. You should read the book as a whole to see whether we actually justify the question mark.

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Published on September 11, 2018
Author:          Filed under: Developments

What’s New in Public Law

Monica Cappelletti, School of Law and Government, Dublin City University (DCU), Ireland

In this weekly feature, I-CONnect publishes a curated reading list of developments in 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 public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email

Developments in Constitutional Courts

  1. The Federal Constitutional Court of Germany will conduct an oral hearing in November concerning the European Banking Union Regulations.
  2. The Constitutional Court of South Korea has declared unconstitutional the collection of DNA samples of criminals without their permission.
  3. The Constitutional Court of South Korea ruled that it is unconstitutional to deny college professors the right to form labor unions.
  4. The Constitutional Court of the Democratic Republic of Congo (DRC) has excluded Jean Pierre Bemba from the upcoming presidential election scheduled for 23 December 2018.
  5. The Constitutional Court of Guatemala reversed a Supreme Court decision to reinstate the Escobal mine’s licence and ordered that nearby communities be consulted.
  6. The Supreme Court of India decriminalized gay sex.
  7. The Supreme Court of Ireland will decide whether to hear abortion poll challenge appeal.
  8. The International Court of Justice begins hearing Mauritius claim that Britain forced territory exchange for independence.
  9. The European Court of Human Rights ruled that proceedings before the Armenian courts concerning the smuggling of enriched uranium were not fair because key witnesses were never heard.

In the News

  1. The Ukrainian Parliament published a constitutional reform bill concerning the strategic course for obtaining full membership of Ukraine in the EU and NATO.
  2. The Cambodian Parliament held its first session since the July vote.
  3. The Iraqi Parliament has met for the first time since elections in May.
  4. The Iranian Parliament drops plan to impeach education minister.
  5. The Irish Government decided to postpone the constitutional referendum on the ‘sexist’ constitutional reference to a woman’s place in the home.
  6. The Uganda Government withdrew Constitution (Amendment) Bill, 2017 that aimed at resolve the problem of delayed implementation of government infrastructure and investment projects due to disputes arising out of the compulsory land acquisition process.
  7. The Danish Government decided for medicinal cannabis subsidy for terminally ill patients.
  8. The Philippine President revokes amnesty of political opponent over historic attempted coup.
  9. The Mexican National Human Rights Commission is calling on federal authorities to investigate the allegedly illegal detention and torture of 17 people by marines.
  10. The UN Human Rights Council will hold its thirty-ninth regular session from 10 to 28 September 2018.

New Scholarship

  1. Grainne de Burca, Shaming Human Rights, International Journal of Constitutional Law (forthcoming) (reviewing Samuel Moyn, Not Enough: Human Rights in an Unequal World (Harvard University Press, 2018))
  2. Marta Baretta, Olurotimi Osha, St John Howard-Brown, Victoria Deliege, and Victor Freire, An investigation of the right to life according to the ECHR regime: putative asbestos case (2018) Diritti Comparati, Working Paper 3 (analyzing the application of article 2 ECHR in historical cases of the Court)
  3. Shai Dothan, The Three Traditional Approaches to Treaty Interpretation: A Current Application to the European Court of Human Rights (2018) iCourts Working Paper Series (examining how the European Court of Human Rights has developed its own version of the rules of treaty interpretation, combining the three traditional approaches – the textual approach, the subjective approach, and the teleological approach)
  4. Adoración Galera Victoria, The displacement of social Europe. The Spanish case (2018) 2 Diritti Comparati (analyzing the European Social Model and exploring the effects of anti-crisis measures adopted in Spain and the resulting loss of social rights)
  5. Janneke Gerards, Margin of Appreciation and Incrementalism in the Case Law of the European Court of Human Rights (2018) Human Rights Law Review (analyzing the application of margin of appreciation doctrine by the ECtHR and demonstrating how the Court has used this doctrine as an instrument to reconcile European protection of fundamental rights and national diversity)
  6. Ursula Kilkelly, Ton Liefaard, International Human Rights of Children (2018) (exploring the meaning and implementation of international children’s rights law, as laid down in the United Nations Convention on the Rights of the Child and related international and regional human rights instruments)
  7. Catarina Santos Botelho, Constitutional Narcissism on the Couch of Psychoanalysis: Constitutional Unamendability in Portugal and Spain, in Lech Garlicki and Yaniv Roznai (eds), European Journal of Law Reform – Special issue on European Perspectives on Constitutional Unamendability (forthcoming 2019) (comparing the Portuguese Constitution, which has the longest unamendable clause in the world, with the silence of the Spanish Constitution regarding the language of eternity)
  8. Andreas von Staden, Strategies of Compliance with the European Court of Human Rights. Rational Choice Within Normative Constraints (2018) (exploring the nature of human rights challenges in two enduring liberal democracies—Germany and the United Kingdom. The cross-national overview of compliance illustrates a strong correlation between the quality of a country’s democracy and the rate at which judgments have met compliance and details how governments, legislators, and domestic judges responded to the court’s demands for either financial compensation or changes to laws, policies, and practices)
  9. The Democratic Decay Resource (DEM-DEC) released the second monthly update of its bibliography on democratic decay (September 2018), containing new research worldwide from August 2018; key items from earlier in 2018 and late 2017; a significant list of items suggested by DEM-DEC users; and forthcoming research. A post introducing the Update was published on Verfassungsblog on 4 September.

Calls for Papers and Announcements

  1. The IV International Congress “Perspectives of contemporary constitutionalism. On the occasion of the 70th anniversary of the Italian Constitution and the 40th Anniversary of the Spanish Constitution” that will be held in Murcia (Spain) on 28-30 November 2018, invites submissions of abstract of paper. The deadline for the submission is September 24, 2018.
  2. The Asian Law Institute (ASLI) at the National University of Singapore will host the 16th ASLI Conference in Singapore on 11 and 12 June 2019. The ASLI invites submissions of abstract of paper by December 3, 2018.
  3. The European Research Council Project “Transnational Private-Public Arbitration as Global Regulatory Governance: Exploring The Lex Mercatoria Publica” at the Amsterdam Center of International Law issued a call for papers for a workshop on “Engaging with Domestic Law in International Adjudication: Factfinding or Transnational Law-Making?” to take place February 27-March 1, 2019, at the University of Amsterdam. The deadline for the submission is September 15, 2018.
  4. The Research Area “Migration and Diversity” of the WZB Berlin Social Science Center invites submissions for a multi-disciplinary conference on minority and majority rights. The deadline for the submissions is October 1, 2018.
  5. Centre for Law and Culture St Mary’s University, Twickenham with the University of Westminster and GSM London will host the Conference “Race: Why can’t the law effect genuine equality?”. Submissions of abstract of paper are welcomed by September, 28 2018.
  6. The City College of New York invites submissions for its “Critical Perspective on Human Rights2 Conference that will be held on March 13-15, 2019. Proposal of abstract should be submitted by October 31, 2018.
  7. I-Courts in Copenhagen issues a call for papers for its Interdisciplinary Conference “Who is afraid of the International Criminal Courts” that will be held on January 25-27, 2019. The deadline for the submissions is September 15, 2018.
  8. The Journal of Constitutional Law, issued by the Constitutional Court of Georgia, welcomes contributions for its next volume. The deadline for the submissions is October 1, 2018.
  9. The Journal of Internal Displacement and Internal Displacement Monitoring Centre welcomes manuscripts for the call on ‘Getting to 2030: The Future of Internal Displacement and Sustainable Development’ (Special Issue January 2019). The deadline for the submission is November 8, 2018.

Elsewhere Online

  1. Idris Fassassi, Removing ‘Race’ and Adding ‘Gender’ to the French Constitution: On Constitutional Redundancy and Symbols, Constitionnet
  2. Helena Guimarães de Oliveira, My Body, the Majority’s Choice? A Comparative Overview of Abortion Laws in Ireland and Argentina, Verfassungsblog
  3. Sreang Heng, Elections under oppression in Cambodia: a predictable outcome?, Yale Macmillian Centre
  4. Thomas Hochmann, Shedding Light or Shooting in the Dark – How to define Fake News?, Verfassungsblog
  5. Grant Hooper, Minister for Immigration and Border Protection v SZVFW: The High Court on Unreasonableness and The Role of Judicial Review, AUSPUBLAW
  6. Zann Isacson, Combating Terrorism Online: Possible Actors and Their Roles, Lawfare Blog
  7. Katalin Kelemen, The Agreement on a Unified Patent Court cannot be ratified by Hungary, the Constitutional Court says, DirittiComparati
  8. Raffaela Kunz, A further “constitutionalization” to the detriment of the individual?, Volkerrechtsblog
  9. Jordi Nieva-Fenoll, Spanish Jurisdiction at Stake: Puigdemont’s Judge to be Judged by a Belgian Court?, Verfassungsblog
  10. Jan Przerwa, The Pisciotti case: how can free movement rights impact EU citizen extradition to a third country?, European law blog
  11. Mario Savino, The Diciotti Affair: beyond the Populist Farce, Verfassungsblog
  12. Johan Sigholm, I Wrote About Russian Election Interference. Then I Was Trolled Online, Lawfare Blog
  13. Sebastian Spitra, The politics of cultural heritage protection in international law, Volkerrechtsblog
  14. Sophie Starrenburg, Cultural heritage protection: a truly “global” legal problem?, Volkerrechtsblog
  15. Joe Tomlinson and Katy Sheridan, Judicial Review, Evidence, and Systemic Unfairness in the UK, IACL-AIDC Blog
  16. Sam Wice, Proposed Reform of House Rules Would Not Be Enforceable, Blog of the Yale Journal of Regulation
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Published on September 10, 2018
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Samuel Moyn in Bogotá: Not Enough and Domestic Constitutional Histories

Jorge González-Jácome, Universidad de los Andes (Bogotá)

The recent publication of Samuel Moyn’s Not Enough has triggered an important debate among human rights and international law scholars. The book focuses on the discussion about the relationship between the human rights revolution of the 1970s and the more or less simultaneous rise of neoliberalism and its diffusion around the world as a paradigmatic economic model. Moyn steers away from Marxist explanations and rejects the idea that legal ideals embedded in human rights are a mere reflection of the socioeconomic structure of the world. Instead, he shows that there were a set of complex processes revolving around the rise and fall of the welfare state in the global north and south. The book mainly underscores the formation of international law since the end of World War II within the framework of a tension between ideals of sufficiency, ensuring that everyone has a minimum of the good things in life, and equality, aiming towards redistributing goods for the purpose of breaching gaps between the wealthy and the poor. Moyn’s reconstruction is a suggestive revision of the relationship between welfarism, neoliberalism, and individual rights. The main legal character of Not Enough is international law. Although constitutional law briefly appears -namely through a sound criticism of the redistributive power of social and economic rights adjudication-, I would like to argue that the book is also a provocative invitation to rethink domestic constitutional histories.

One of the key questions of Moyn’s work is about the changing relevance of human rights after the Universal Declaration of 1948. Our contemporary notions of international human rights norms emerged only in the 1970s, when activists, non-governmental organizations and, finally, international apparatuses used a set of ideals to pierce the veil of national sovereignty in order to name and shame state actions. One question that emerges in this historical revision is about the meaning of human rights after its promulgation in the late 1940s. In Not Enough, Moyn argues that the role of rights before the 1970s has to be assessed against the framework of the rise of the welfare state and decolonization, while their relevance after that period has to be understood through considering the neoliberal background that accompanied their ascent. Within this framework, our contemporary consciousness about rights, including constitutional rights, underscores their role in accompanying the rise of neoliberalism and operating to remedy some of the most gruesome effects of market policies. For example, domestic adjudication of social and economic rights leads Constitutional Courts to protect individuals against big banks during economic crises, thereby softening the rules for collecting debts in order to protect the right to adequate housing. Courts may invoke the right to health and order medical treatments to patients with serious illnesses and they may also seek to construct concepts of human dignity for the sake of protecting those who cannot work and still need a basic set of entitlements that cannot be provided according to market logics.

Even more poignantly, Moyn argues that constitutional rights adjudication has been powerless even for fulfilling the aim of sufficiency. Building on the work of David Landau and Helena Alviar in Colombia, he stresses that “social rights adjudication functioned far better to maintain the middle class against the stripping of privileges than it did to succor the most miserable. To identify the claims of and offer remedies to the truly indigent, the internationally developed concept of a ‘minimum core’ to each social right proved of less use than many originally hoped.”[1] This argument raises a question about the alleged transformations that democratic transitions achieved in the global south, especially in the poster children of socioeconomic rights adjudication – namely India, South Africa and Colombia.

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Published on September 7, 2018
Author:          Filed under: Analysis

Does the President Have the Power to Call a Constitutional Referendum in Peru?

Maria Bertel, Elise-Richter-Fellow (FWF), University of Innsbruck; Postdoctoral Research Fellow, Central European University[*]

On July 28, Peru celebrated 197 years of independence. On the occasion of this national holiday, the President of Perú, Martin Vizcarra, delivered the President’s Annual Address to the Nation. This was the first time the former Vice-President has given this address since he took power from the elected president Pedro Pablo Kuczynski (PPK), who stepped aside because of his involvement in the “Odebrecht case,”[1] a corruption scandal hitting the whole continent.

President Vizcarra proposed reforms of the judicial and legislative branches. His speech came after several marches of protest against the biggest corruption scandal in Peru in 18 years, which has already led to the resignation of the President of the Supreme Court as well as other officials.[2] President Vizcarra pointed out the crucial role of the citizens in these reforms and announced that they would be submitted to a referendum. The announced referendum would not only encompass the reform of the judiciary (Articles 155 and 156 of the Peruvian Constitution), but also the question whether a one term limit should be placed on members of Congress, whether a second parliamentary chamber should be introduced, and how private financing of parties should be regulated.[3] The reforms of the judiciary consist mainly in a new appointment procedure of the National Council of Judges and new criteria for the members of the National Council of Judges. In the future, a so-called Special Commission, consisting of the President of the Supreme Court, the Attorney General, the President of the Constitutional Court, the National Ombudsman and the Comptroller General shall be responsible for the appointment of the Members of the National Council of Judges. This appointment procedure shall be preceded by a merit-based competition.[4] The new criteria for the members of the Council are amongst others more than 30 years of work experience as a lawyer and not having a criminal or judicial record.[5] The emphasis of all proposed reforms is put on combatting corruption: Rules for the private financing of parties aim at more transparency and are more restrictive[6], the (re-)introduction of the second chamber is meant to help improve the quality of laws,[7] and the one term limit for members of Congress to impede cronyism[8].

President Vizcarra’s speech started an important debate about whether the President of the Republic could call the referendum at all.[9] This is of special interest in a comparative Latin-American perspective, since referenda have been often used by presidents in the region to increase their own powers and carry out important constitutional changes.

The question needs a caveat, because it is ambiguous: Seen from a positivist perspective, the President might not have the power to call a referendum. However, the President could always try to bypass the legislature, as the French[10] and Argentinian examples show.[11]

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Published on September 6, 2018
Author:          Filed under: Developments