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I·CONnect

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

Constitutions and the Politics of Recognition: Some Australian Observations

Dylan Lino, PhD Candidate, Melbourne Law School; Visiting Researcher, Harvard Law School

Constitutions are a major site of contestation in what Charles Taylor has influentially termed the ‘politics of recognition’. As marginalised groups struggle to have their identities properly respected within public institutions, attention frequently turns to the contents of constitutions and the ways in which they reflect the concerns of dominant groups and exclude those of subordinated groups. In this post, I consider recent developments from Australia where efforts have been made to recognise Australia’s Indigenous peoples, the Aboriginal and Torres Strait Islander peoples, within State and Federal constitutions. These developments help to show that, when it comes to the politics of recognition, there are two pertinent dimensions of constitutions: a constitutional dimension and an expressive dimension. The Australian developments also underscore problems that result from privileging the expressive at the expense of the constitutional. (This post is based on a longer, more detailed paper, which can be found here.)

I’ll start with an overview of what I’m calling the constitutional and expressive dimensions of constitutions. The constitutional dimension concerns constitutions’ role in establishing, channeling and limiting the basic power of the state. They typically create major governmental institutions such as legislatures, executives and courts; define those institutions’ powers and interrelations; delineate important aspects of the relationship between the state and citizens, including guarantees of basic rights; and for federal systems, set out the respective powers, rights and duties of the different orders of government. The constitutional dimension of a constitution is its primary function, its main reason for being.

The expressive dimension of constitutions concerns their role in expressing values, attitudes, histories and identities. Such an expressive quality may be designed self-consciously, as is often the case for constitutional preambles, but it will also be implicit within ordinary constitutional provisions and structures. The choice to set up a polity in a particular way – through a federal structure, for instance – inevitably expresses factual and normative beliefs possessed by the constitutional drafters. Constitutions, as against other laws, have a distinctive capacity to express what is of basic importance to the polity. This stems from the constitutional role they play (described above), as well as the formal entrenchment, legal supremacy and democratic pedigree that typically accompany them. The expressive dimension of constitutions concerns their place as reflections of and influences upon the polity’s identity.

What significance do these two dimensions have for the politics of recognition?

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Published on July 30, 2014
Author:          Filed under: Analysis
 

What’s New in Comparative Public Law

Angelique Devaux, French Licensed Attorney (Notaire)

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. In Turkey, the Constitutional Court has found that the rights of the family of journalist Hrant Dink, who was assassinated in 2007, have been violated because the murder investigation had not been conducted effectively.
  2. The Croatian Constitutional Court rules against minority shareholders.
  3. Spain’s Constitutional Court has thrown out a law against hydraulic fracturing for shale gas and oil in the northern region of Cantabria, stating that the matter is up to the central government.
  4. A federal appeals court upheld a Florida “Docs vs. Glocks” law restricting what doctors can tell patients about gun ownership.
  5. A federal judge ruled that the Colorado ban on same-sex marriage is unconstitutional.
  6. Georgia‘s Attorney General says that gay marriage ban is constitutional.
  7. South Korea’s Constitutional Court ruled that the current ban on dual citizenship is constitutional.

In the news

  1. In France, a former local election candidate from France’s far-right National Front was sentenced to nine months in prison for comparing the country’s black Justice Minister Christiane Taubira to a monkey.
  2. In Italy, an appeals court acquitted former prime minister Silvio Berlusconi of paying for sex with a minor and abuse of power charges in a surprise ruling that overturned a guilty verdict handed down by a lower court last year.
  3. In New York, the State Appellate Division found that a Long Island father’s spanking of 8 year-old boy “was reasonable use of force.”
  4. The council of the EU adopted the proposal for a regulation on electronic identification and trust services for electronic transactions in the internal market.
  5. Thailand’s King Bhumibol Adulyadej announced his support for an interim constitution that would grant extensive authority to the National Council for Peace and Order, the military junta currently in power.
  6. In the United States, a date has been set for oral arguments in a federal appellate court on same-sex marriage bans in Indiana and Wisconsin.

New scholarship

  1. Ying Chen, Trade, Food Security, and Human Rights, The Rules for International Trade in Agricultural Products and the Evolving World Food Crisis (Ashgate) (Examining EU and US agricultural policies and World Trade Organization negotiations in agriculture, the author argues how they affect the international agricultural trade, claiming that current food insecurity is the result of inequitable food distribution and trade practices.)
  2. Bruno Rodrigues de Almeida, The “Shakespearean Rose” Blossoms Down the Equator: Reflection upon the impact of Brazilian Supreme Court’s Decision Recognizing the Constitutionality of Same-Sex Civil Unions, Panorama of Brazilian Law. Vol.1, No 1 (2013) (This article discusses the Brazilian Supreme Court’s Decision of May 5th, 2011 that allows civil unions between two people regardless their gender, thus admitting same-sex partnerships as a legitimate type of family entitled to special protection provided by article 226 of current Brazilian Political Charter.)
  3. Frank Emmert and Siniša Petrović, The Past, Present, and Future of EU Enlargement, 37 Fordham International Law Journal (2014) (This article shows how individual Member States, or rather individual leaders of those Member States, via the unanimity requirement of the Council, were able to impose the views on enlargement in the early years, showing that this power has shifted noticeably to the Commission as the number of Member States has grown.)
  4. Antonios E. Kouroutakis, Judges and Policy Making Authority in the United States and the European Union, 8 ICL Journal 186 (2014) (The main target of the article is to identify the judicial activism exercised by the US Supreme Court and the European Court of Justice and to seek to understand its place, function and need in the legal order.)
  5. Ronald A. Brand, Cooperation in Legal Education and Legal Reform, 74 University of Pittsburgh Law Review (2013) (This contribution traces that partnership between the University of Pittsburgh School of Law and the University of Pristina School of Law in Kosovo, and draws lessons from that cooperation and its resulting impact on developments in Kosovo, for both legal educators in the United States and for legal educators and government officials in Kosovo.)

Call for Papers

  1. The Kentucky Law Journal has issued a call for papers in the areas of intellectual property or internet law with deadline on Sept. 1, 2014.
  2. The Editorial board of The Business Lawyer is soliciting submissions of articles and essays for Volume 70.
  3. The Searle Center on Law, Regulation, and Economic Growth has issued a call for original research papers to be presented at the Sixth Annual Conference on Internet Search and Innovation, to be held at the Northwestern University School of Law in Chicago, IL, on June 4 and 5, 2015.
  4. The Maastricht Centre for Human Rights welcomes papers and suggestions for panels for its conference on Denialism and Human Rights to be held in Maastricht, The Netherlands on January 22-23, 2015.
  5. The European Conference on Politics, Economics and Law call for papers for its conference to be held in Brighton, East Sussex, United Kingdom, on July 2-5, 2015.

Elsewhere on Blogs

  1. Helene Landemore, The Icelandic experience challenges the view that constitutional process must be exclusionary and secretive, Democratic Audit
  2. Mark Elliot, Human rights reform and the role of the Strasbourg Court, UK Constitutional Law Blog
  3. V. Venkatesan, Macauley Revisited, Law and Other Things
  4. Joe Cochrane, A Child of the Slum Rises as President of Indonesia, The New York Times
  5. Irshad Rashid, India: Snaring Dissent  is Undemocratic, Constitution Net
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Published on July 28, 2014
Author:          Filed under: Developments
 

The Scholars Who Bring You “What’s New in Comparative Public Law”

Richard Albert, Boston College Law School

Since January, I-CONnect has published a weekly roundup of news in the world of comparative public law.

“What’s New in Comparative Public Law” is a curated reading list of developments in the field. The weekly roundup includes a selection of links to news, high court decisions, new or recent scholarly books and articles, calls for papers, and blog posts from around the comparative law blogosphere. This new feature has become a must-read for scholars interested in comparative public law.

The weekly roundup is brought to you by five scholars who operate on a rotating schedule. Our community of readers owes them a debt of gratitude for the care they take in preparing “What’s New in Comparative Public Law” every week.

Below, I introduce each of them to you.

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Published on July 25, 2014
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Mandates, Manifestos & Coalitions: UK Party Politics after 2010

Tom Quinn, Essex University

[Cross-posted from UK Constitutional Law Blog]

One of the most important assumptions underlying this view of British politics since 1945 was that governments were given mandates by voters in elections. That followed from the fact that they were directly elected by voters, as there were no post-election coalition negotiations to intervene between voters’ choices and government formation. Mandates followed from voter endorsement of governing parties’ manifestos. The winning party was assumed to have a mandate to implement its manifesto in office.

The hung parliament of 2010 and the subsequent coalition government challenged these assumptions. If no party enjoyed a parliamentary majority, what sense did it make to speak of mandates? What was the role of manifestos if no party possessed a majority to implement one in full? What was the legitimacy of coalition agreements if they have never been put to the electorate? Ultimately, is it necessary to rethink the relationship between voters, parties and governments in the UK political system?

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Published on July 23, 2014
Author:          Filed under: Analysis
 

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.

Announcement from I-CONnect

I-CONnect welcomes submissions from senior and junior scholars, including graduate students, on any subject of comparative public law ranging from 750 to 1000 words, though contributors may make longer or shorter submissions. Submissions will be acknowledged within one day, and often within minutes. Submissions or inquiries about potential submissions may be sent by email to contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. Turkey’s Constitutional Court halts legislation exempting companies from environmental obligations.
  2. Hungary’s Constitutional Court rejects E-PM appeal for referendum on Paks Nuclear Plant Expansion.
  3. US federal appeals court denies Utah’s request to halt same-sex marriage licenses.
  4. Colorado Supreme Court orders Denver to stop issuing gay marriage licenses.
  5. Oklahoma same-sex marriages ruled constitutional for second time.

In the News

  1. Indonesia remains vigilant as Constitutional Court may decide results of election.
  2. Turkish opposition appeals to Constitutional Court regarding intelligence activity.
  3. Indonesia Constitutional Court may pick new president.
  4. Singapore’s Government retains authority to amend the Constitution without a vote.
  5. Utah asks Supreme Court to stay ruling on recognizing same-sex marriage.
  6. US federal judge strikes down California death penalty.

New Scholarship

  1. David S. Law, Judicial Comparativism and Judicial Diplomacy, University of Pennsylvania L Rev (forthcoming) (explores how the Japanese Supreme Court, the Korean Constitutional Court, and the Taiwanese Constitutional Court engaged in the concept comparativism, and to what extent the outcome highlights the crucial role of institutional and resource constraints in shaping judicial behavior but also poses an unexpected challenge to traditional conceptions of the role and function of constitutional courts; and arguing also that engaging in comparativism reveals the hidden phenomenon of judicial diplomacy)
  2. Michael J. Perry, David C. Baum Memorial Lecture: Why Excluding Same-Sex Couples from Civil Marriage Violates the Constitutional Law of the United States, University of Illinois L Rev (forthcoming 2014) (arguing that the exclusion policy  — excluding same-sex couples from civil marriage — violates the right to moral and religious freedom)
  3. Melissa F. Wasserman, Deference Asymmetries: Distortions in the Evolution of Regulatory Law, 93 Texas L Rev (forthcoming 2015) (explaining how deference asymmetries could potentially function as a one-way ratchet and that it is not isolated to a few areas of regulation but instead a surprising number of agencies that regulate fields ranging from the environment, to patent law, to disability benefits face asymmetric deference with respect to their decision making.)
  4. Nancy Leong & Aaron Belzer, Enforcing Rights, 62 UCLA L Rev (2015) (arguing that constitutional litigants should not be treated differently from others by by exposing the pervasive yet underexamined phenomenon of courts limiting constitutional litigants to a single remedial avenue as well as demonstrating that this judicial practice of limiting remedial avenues in constitutional settings lacks justification)
  5. Erin F. Delaney, Judiciary Rising: Constitutional Change in the United Kingdom, 108(2) Northwestern University L Rev (forthcoming 2014) (assessing the cumulative force of the many recent constitutional changes, and illuminates the role of human rights and devolution in the growing influence of the U.K. Supreme Court citing the U.S. literature on federalism and judicial power)

New Scholarship in Ius Publicum Network Review

Articles

  1. José Esteve Pardo, La extensión del derecho público. Una reacción necesaria.
  2. Daniel Gordon &  Gabriella M. Racca, Integrity Challenges in the EU and U.S. Procurement Systems
  3. Jorge García-Andrade Gómez, La adopción de la estabilidad presupuestaria en la Constitución española
  4. Fabio Saitta, Towards a due process of eminent domain

Reports

  1. Hilde Caroli Casavola, Public procurement and globalization [Public Contracts (Italy)]
  2. Melania D’Angelosante, State Failures and the “Inclusive Subsidiarity” of the Market in Healthcare at the Time of the Economic Recession [Public Law and Economics (Competition and Regulation) and Public Utilities (Italy)]
  3. Maria Grazia Della Scala, State-Owned Enterprises: “Companies – Enterprises” and Public Entities Organized as Companies. A Review of Applicable Rules [Public Law and Economics (Competition and Regulation) and Public Utilities (Italy)]
  4. Maxime Boul, Droit public de la économie et sevices publics – Apport – 2012 [Public Law and Economics (Competition and Regulation) and Public Utilities (France)]
  5. M. Bertrand Sergues, Droit administratif et droit constitutionnel Apports de la période 2012 juin 2013 [European Law, Comparative Law, Constitutional Law and International Law - Human Rights (France)]
  6. Salomé Gottot, Droit administratif et droit de la Union Europeenne Apport de l’annee 2012 [European Law, Comparative Law, Constitutional Law and International Law - Human Rights (France)]

Call for Papers

  1. The Amity Society for International Law (ASIL), Amity Law School Delhi invite papers from students, experts, lawyers, academicians from India and abroad for the annual International Conference on Public International Law & Inauguration of  ILSA Chapter to be held on October 11-12, 2014 at Amity Law School Delhi, Delhi, India.
  2. The Lisbon Centre for Research in Public Law has issued a call for papers for its “Lisbon International Workshop on Global Administrative Law”, schedules to take place on November 28th at the University of Lisbon School of Law. (Abstracts should be submitted by August 1st, 2014).
  3. The Batumi International Conference on Law and Politics (BICLP 2014) invites submissions for its annual conference to be held in Batumi, Georgia on August 23-24, 2014.
  4. The Editorial Board of Comparative Constitutional Law & Administrative Law Quarterly (CALQ) invites submissions for Vol. 2 No. 1 from legal academicians, professionals and students.
  5. The International Journal of Law and Legal Jurisprudence Studies (IJLLJ) welcomes submissions for Volume 1 Issue 4.

Elsewhere on Blogs

  1. Greg Weiner, Defining Impeachment Up, Liberty Law Blog
  2. Steven D. Schwinn, Second Circuit Says Required Urine Test Substantially Burdens Religious Freedom, Constitutional Law Prof Blog
  3. Laura Meckler, Obama to Bar Contractors from Discriminating Against Gay Workers, WSJ Law Blog
  4. Rick Hasen, Could southern black voters save the Senate for Democrats?, Election Law Blog
  5. Sheila Smith, Reinterpreting Japan’s Constitution, ConstitutionNet
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Published on July 21, 2014
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Direct Democracy and Constitutional Change: Institutional Learning from State Laboratories in the USA

Jurgen Goossens, Ph.D. Candidate Ghent University, LL.M. Yale Law School

Although the federal constitutional amendment procedure in Article V of the U.S. Constitution has not been altered since its adoption 226 years ago, constitutional tradition in the 50 states has substantially evolved. For instance, popular referenda were unknown in 1787, but are now ubiquitous in state constitutionalism. Over time, a strong tradition of direct democracy and majoritarian voting rules has emerged in almost all states. Nevertheless, scholars have often neglected the rich source of state experiments with amendment procedures in the U.S. and usually only refer to Switzerland as the prime example of direct democracy and (constitutional) referenda.

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Published on July 18, 2014
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The Italian Senate Under Reform: From Disguised Unicameralism to a True Regional Second Chamber?

Antonia Baraggia, University of Milan

After the recent attempts to reform the Irish and the Canadian Senates, the Italian second chamber is also undergoing a process of profound transformation.

The issue of reforming the Italian second chamber is not a recent development. The Italian Senate has been the subject of debate since the Constitutional Assembly gathered to design the Italian Constitution, which came into force in 1948. The solution adopted by the Founding Fathers was controversial insofar as it departed from the conventional model of bicameralism since it was more of a “disguised” unicameralism than a true bicameralism.

Italian bicameralism is generally known as “perfect bicameralism”, since the second chamber (the Senate) has exactly the same powers and functions of the first chamber (Chamber of Deputies), both in the legislative process and in the relationship with the government (e.g. the vote of confidence). Moreover, the Italian Senate represents the same electorate of the first chamber. Even though originally it had been conceived of as the chamber representative of the regions, as in all federal/regional states, it has not in reality assumed these functions, but has rather represented the whole citizenry (despite the fact that the electoral system of the Senate differs from that one of the first chamber).

In light of this kind of undifferentiated bicameralism, what Bentham affirmed regarding second chambers  is certainly true for the Italian case: if a second chamber offers nothing different from the first, then it is redundant and every cost incurred in its establishment and maintenance is wasted.

Facing the emergence of the limits of a perfect bicameralism, there have been several attempts to reform the Italian Senate, most notably in 1997 with the D’Alema Committe, in 2005 with the Center-Right Reform, and in 2007 with the Violante Project. All of these efforts were intended to transform the Second chamber into a “federal” one, representative of the regional character of the country, but until now none of these efforts have succeeded.

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Published on July 16, 2014
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What’s New in Comparative Public Law

Rohan Alva, Jindal Global Law School

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. The Supreme Court of India ruled that ‘fatwas’ issued by ‘Shariat Courts’ are legally unenforceable, especially when they are issued against individuals who have not asked for such an intervention, and when the declarations may result in the infraction of rights. The Supreme Court, however, declined to order the closure of ‘Shariat Courts’ in India.
  2. The European Court of Justice reversed Germany’s decision to deny a visa to an applicant, who wished to join her husband residing in Germany, on grounds of the applicant’s inability to exhibit knowledge of the German language. In the process of impugning the German legislation of 2007 which authorized such visa denials, the Court affirmed that rejections of requests for visas must be case specific and the absence of a knowledge of the language alone should not be grounds for rejection.
  3. The Hungarian Constitutional Court declined to entertain a petition, filed by a member of the political opposition, which questioned the ‘Paks Russian loan deal’ not being subjected to a referendum.
  4. A District Court judge in Colorado, U.S.A., invalidated a state ban on same-sex marriage, considering the definition of marriage in purely heterosexual terms as insufficiently connected to any ‘government interest’.
  5. The Constitutional Court of Turkey has suspended the implementation of a legislation which saved certain corporations from submitting an ‘environmental impact assessment report’ in respect of certain contentious ‘gigantic projects’.

New Scholarship

  1. Derek O’ Brien, The Constitutional Systems of the Commonwealth Caribbean: A Contextual Analysis (Hart Publishing, 2014) (investigating the positive role that the architecture of the constitutions in the different Caribbean nations has had in fostering an environment of political peace in the aftermath of colonialism, and evaluating the pace and scope of “constitutional reform” in the Caribbean)
  2. Laurence Tribe and Joshua Matz, Uncertain Justice: The  Roberts Court and the Constitution (Henry Holt and Co., 2014) (surveying a host of decisions delivered by the U.S. Supreme Court under the leadership of Chief Justice John Roberts, and evaluating the transformative impact of these decisions on American society)
  3. Jiunn-rong Yeh and Wen-Chen Chang (editors), Asian Courts in Context (Cambridge University Press, 2014, forthcoming) (collecting essays in which the different authors assess the performance of the judiciary in over a dozen Asian nations; trace the points of contrast between Asian and non-Asian courts; and, review the factors, unique to each nation, which have had an influence upon the path that each nation’s judiciary has embarked upon)
  4. Gretchen Helmke and Julio Rios-Figueroa (editors), Courts in Latin America (Cambridge University Press, 2014) (a compilation of essays in which the authors measure the performance of Latin American constitutional courts, and critically analyse the points of divergence between the manner in which the different courts have discharged their judicial functions)
  5. Lucy A. Williams, The Right to Housing in South Africa: An Evolving Jurisprudence, 45 Columbia Human Rights Law Review 816 (2014) (seeking to provide a holistic account of the onward developments that have taken place in South Africa with regard to housing rights, and closely analysing the “three aspects” which have governed recent judicial decisions)
  6. Richard Albert, Constructive Unamendability in Canada and the United States, 67 Supreme Court Law Review (forthcoming 2014) (classifying the many forms of unamendability, developing the concept of constructive unamendability, and illustrating that the Senate in both Canada and the United is constructively unamendable).

In the News

  1. I-CONnect and IUS Publicum Network Review have entered into a partnership to deepen the study of comparative public law and to enhance its online coverage. The IUS Publicum Network Review is a network of the national leading public and administrative law journals in Europe, whose aim is to track and interpret the evolution of public law in each country involved, pointing out its influences on the construction of an administrative and public European law and its connections with other legal cultures.
  2. Elections have recently been conducted in Indonesia in order to choose the nation’s next president. Reports suggest that the presidential candidate Joko Widodo might have garnered a lead, even as other reports suggest that the finality of the result of the elections might be delayed if challenged in the Indonesian Constitutional Court.
  3. The Lok Sabha of the Indian Parliament has passed the Andhra Pradesh Reorganisation (Amendment) Bill, which would effect a transfer of certain districts from the newly created state of Telangana to Andhra Pradesh. Opponents of the Bill have raised a question of constitutional propriety as to whether a state’s border can be changed, by Parliament, without following the consultation process outlined in Article 3 of the Indian Constitution.
  4. Abdullah Abdullah and Ashraf Ghani, the Afghan presidential candidates, have mutually consented to an authentication exercise to be undertaken of the nearly eight million votes that were polled. The election fell into controversy over allegations of ‘electoral fraud’ having been practiced.
  5. The English Prime Minister, David Cameron, has announced that his government has received multi-partisan support to introduce ‘emergency legislation’ aimed at easing the ability of law protection agencies ‘to access phone and internet records’.
  6. Dominica’s Parliament passed a formal constitutional amendment in order to place the Caribbean Court of Justice at the apex, for the purposes of appeals which emerge from Dominca. As a consequence of the amendment, the Judicial Committee of the Privy Council will cease to serve as the last court for appeals from Dominica.

Elsewhere on the Web

  1. Padraig Reidy, Has Ireland reintroduced criminal libel? Index on Censorship
  2. Joan Vennochi, Supreme Court’s Firsts Amendment hypocrisy, The Boston Globe
  3. Andrew Wheelhouse, The Zulu Case: Threats to Squatters’ Rights in South Africa, Oxford Human Rights Hub
  4. Apoorva Mandhani, While LGBT community celebrates the 5th anniversary of the historic Delhi HC judgment, the road ahead still remains unclear, Live Law
  5. Nicholas Watt, Former archbishop lends his support to campaign to legalise right to die, The Guardian

Call for Papers/Conferences

  1. Submissions are invited for the second issue of the Journal on Environment Law, Policy and Development. Authors must submit their papers to the journal by the 31st of October, 2014. The second issue is scheduled to be released in January, 2015.
  2. The Faculty of Law at the University of Ghana is hosting a conference on ‘Traditions, Borrowings, Innovations, & Impositions: Law in the Post-Colony and in Empire’ to be held from the 2nd to the 4th of July, 2015. Abstracts are to be submitted by the 1st of December, 2014.
  3. A call for papers has been issued by the Law Department of London School of Economics and Political Science for a conference on ‘De-juridification: Appearance and disappearance of law at a time of crisis’ which will be held on the 25th and 26th of October, 2014. Abstracts of papers are due by the 1st of August, 2014.
  4. Papers are called for by the Research in Social Movements, Conflicts and Change for its 38th Volume. Authors are to submit their manuscripts by the 7th of September, 2014.
  5. The New York Law School is organizing a conference on ‘Twenty Years of South African Constitutionalism’ from the 13th to the 16th of November, 2014. Abstracts along with a CV are should be sent in by the 15th of July, 2014.
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Published on July 14, 2014
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A Comment on the European Court of Human Right’s Judgment in S.A.S. v. France

Antonios KouroutakisOxford University

[Editor's Note: This is the second of two scholarly perspectives published on I-CONnect this week this week on S.A.S. v. France. The first was published here on Wednesday, July 9.]

How to balance individual rights with the state intervention to accommodate the interests of the society as whole is an inherently difficult question. This issue increasingly dominated the French agenda as the relatively recent phenomenon of wearing the scarf and hijab in France was seen as incompatible with the secular character of the French Republic.

In 2004 French Republic passed a law banning all conspicuous religious symbols in French public primary and secondary schools[1] which in practice targeted Muslims. In 2010 another law was passed banning the wearing in public of clothing designed to conceal one’s face which mainly affected Muslim women who wish to wear the full-face veil.[2]

The issues are of particular importance in the context of the state interest to reconcile expressions of personal faith with secular law and constitutional norms. The compatibility of the Law prohibiting the wearing of burqa and niqab in public places with the freedom of religion[3] and the right to privacy[4] was challenged before the European Court of Human Rights (the Court). A priori, any limitation to the right to privacy and the freedom to manifest one’s religion shall be based on a variety of grounds prescribed in the text of the Convention.[5]

On July 1st 2014, the Court with a groundbreaking decision set a new balance between the individual right (right to privacy and freedom of religion) and the rights and freedoms of others.

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Published on July 11, 2014
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The Burka Ban before the European Court of Human Rights: A Comment on S.A.S. v. France

Ioanna Tourkochoriti, Fellow, The Walker Institute for Area Studies and The Rule of Law Collaborative, University of South Carolina

[Editor's Note: This is the first of two scholarly perspectives that I-CONnect will publish this week on S.A.S. v. France. The second will be published on Friday, July 11.]

In S.A.S. v. France[1], the European Court of Human Rights examined whether the French Law of October 11th 2010 banning the full covering of the face (the law widely known as aiming to ban the wearing of the burka) is compatible with the European Convention of Human Rights (ECHR).

Although the Court recognizes many essential aspects of the right to freedom of religion in European Societies (which are becoming all the more multicultural), the ruling is disappointing as it concedes too much to the “margin of appreciation” of the state to define “the minimum requirements of the life in society” in a way that overlooks the need to protect individual liberties and the principle of equal respect, which must be afforded to every participant in such a society.

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