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I·CONnect

Blog of the International Journal of Constitutional Law

What’s New in Public Law

Simon Drugda, PhD Candidate at the University of Copenhagen

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 contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The Court of Justice of the European Union (CJEU) delivers a ruling in the high-profile case Wightman and Others v Secretary of State for Exiting the EU; one day before the UK parliament votes on the Withdrawal Agreement.
  2. The Constitutional Court of the Russian Federation upheld a decision on the demarcation of border between the Republics of Ingushetia and Chechnya.
  3. The Constitutional Court of Zambia ruled that President Edgar Lungu can stand in presidential elections due in 2021 without breaching a constitutional two-term limit.
  4. The Constitutional Court of Turkey found that a lower court decision banning access to an online article about sexual abuse allegations violates freedom of press and expression.

In the News

  1. The National Green Tribunal (NGT) of India imposed a penalty of 500 million Indian Rupees on the state government of Karnataka for failing to protect lakes in its capital city of Bangalore.
  2. The Multinational Electoral Tribunal (OEP) of Bolivia decided to allow President Evo Morales to stand for a fourth term in office.
  3. Advocate General at the CJEU Campos Sánchez-Bordona authored an opinion finding that the UK can unilaterally revoke its notification of withdrawal from the EU.
  4. The Parliament of Lesotho adopted a constitutional amendment to allow dual citizenship.
  5. The President of Mexico proposed a constitutional amendment to end presidential immunity.
  6. A majority of Sudanese legislators support a constitutional amendment to extend presidential term limits.
  7. The lower house of the Parliament of Ireland approved a bill legalizing elective abortion in the first twelve weeks of pregnancy. The bill now moves to the upper legislative house for a debate.

New Scholarship

  1. Emre Turkut, Accommodating Security Imperatives v. Protecting Fundamental Rights: The Challenge of States of Emergency in the Context of Countering Terrorism in Turkey (forthcoming 2018) (providing an analysis of the state of emergency practices in the fight against terrorism in Turkey)
  2. Jaka Kukavica, National Consensus and the Eighth Amendment: Is There Something to be Learned from the United States Supreme Court, in Panos Kapotas and Vassilis P Tzevelekos (eds.), Building Consensus on European Consensus: Judicial Interpretation of Human Rights in Europe and Beyond (forthcoming 2019) (examining the consensus analysis of the US Supreme Court in its Eighth Amendment jurisprudence)
  3. Vladislava Stoyanova, The Disjunctive Structure of Positive Rights under the European Convention on Human Rights, Nordic Journal of International Law 3 (2018) (examining how the European Court of Human Rights deals with the disjunctive structure of positive rights and how it addresses alternative protective measures that could have been extended)
  4. Oliver Gerstenberg, Euroconstitutionalism and its Discontents (2018) (examining the question of social constitutionalism, especially with regard to its role in the contemporary European project)
  5. Frank Vibert, Making a 21st Century Constitution: Playing Fair in Modern Democracies (2018) (examining the ways in which constitutions may be made suitable for the the 21st century)

Call for Papers and Announcements

  1. The University of Aberdeen, in collaboration with the Horizon 2020 Marie Skłodowska-Curie program, invites applications for six Early Stage Researcher (PhD) positions for groundbreaking research on how political concepts emerge and are used in the world. The deadline for applications is January 20, 2019.
  2. The University of Illinois, University of Bologna, and Johns Hopkins Center for Constitutional Studies and Democratic Development invite submissions for the Fourth Illinois-Bologna conference on “Constitutional History: Comparative Perspectives,” to be held in Chicago on April 29- 30, 2019. The focus of the conference is on “Uses of History in Constitutional Adjudication.” The for paper proposals is December 15, 2018.
  3. Stanford Law School invites applications for its Twelfth International Junior Faculty Forum (IJFF). The deadline for abstract submission is February 15. 2019.
  4. The Indian Journal of Constitutional & Administrative Law (IJCAL) invites submissions of papers for its third volume. The deadline for submissions is December 31, 2018.
  5. The Portsmouth Law School at the University of Portsmouth and the European University Institute (EUI) invite submissions for an international conference on “Corruption Democracy and Human Rights: Exploring new avenues in the fight against corruption,” to be held in Florence, on June 20-21, 2019. The deadline for submission of abstracts is February 26, 2019.
  6. Odile Ammann convenes a workshop on “Lobbying and Domestic Lawmaking Processes: Do Lobbies Strengthen or Undermine Dignity, Democracy and Diversity?” at the 29th World Congress of the International Association for Philosophy of Law and Social Philosophy at the University of Lucerne, Switzerland, to be held on July 7-13, 2019. Researchers interested in participating in this workshop can send a short abstract to ammann@rwi.uzh.ch by March 1, 2019.

Elsewhere Online

  1. Lorne Neudorf, Scrutinising Legislative Reform Orders: The Case of the Horserace Betting Levy, UK Constitutional Law Association
  2. Chloé Brière, The Advocate-General Opinion in Wightman: Article 50 Notification to Withdraw from the European Union is Unilaterally Revocable, European Law Blog
  3. Piotr Bogdanowicz and Maciej Taborowski, Why the EU Commission and the Polish Supreme Court Should not Withdraw their Cases from Luxembourg, Verfassungsblog
  4. Mark Elliott, Civil legal aid as a constitutional imperative: A response to Lord Sumption, Public Law for Everyone
  5. Susan Rose-Ackerman and Lena Riemer, What’s Really Wrong with the Census, Balkinization
  6. Roy Ulrich, A Progressive Call for a Constitutional Convention, JURIST
  7. Anne Peters and Raffaela Kunz, Voting down international law? Lessons from Switzerland for compensatory constitutionalism, Völkerrechtsblog
  8. Giovanni Di Cosimo, The transformations of Italian parties, IACL-AIDC Blog
  9. Pierre de Vos, Supreme Court of Appeal gets the law very wrong in a hate speech judgment, Constitutionally Speaking
  10. Gabrielle Appleby, Another Stop on the Road to Meaningful Constitutional Recognition, AUSPUBLAW
  11. Mariyam Zulfa, Constitutional reform in Maldives: Towards a parliamentary system of government and decentralization?, ConstitutionNet
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Published on December 10, 2018
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I-CONnect Symposium: The Italian Constitutional Court on Assisted Suicide—Court Order no. 207 of 2018: A Particular “Species” of the German Incompatibility Ruling?

[Editor’s Note: This is the final Part of our I-CONnect symposium on the Italian Constitutional Court’s recent judgment on assisted suicide. The Introduction is available here, Part I is available here, and Part II is available here.]


Nannerel Fiano, P.h.D. Candidate in Constitutional Law, University of Milan.

With its historic Decree 207 of 2018 concerning the notorious Cappato case, the Constitutional Court got involved in a widely debated subject – not only by experts in constitutional doctrine – namely the so-called “assisted suicide”.

When constitutional judges were called upon to rule on the legitimacy of art. 580 of the Criminal Code, they proclaimed it illegitimate, thus paving the way for significant modifications (nothing short of revolutionary) of the body of law that regulates the so-called “end of life”. But there is more.

The “revolution” involves other levels too, since the Constitutional Court has introduced a new development “strategy” for the constitutional process by activating “powers of process management,”[1] which brings it closer to the German experience of the Bundesverfassungsgericht.

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Published on December 8, 2018
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Nine Good Reads and One Viewing

J. H. H. Weiler, New York University School of Law; Co-Editor-in-Chief, I·CON

For the first time I have managed to post my Good Reads online before Christmas. I publish my pick from some of the books that have come my way during this past year. These are not book reviews in the classical and rigorous sense of the word, for which you should turn to our Book Review section. I do not attempt to analyze or critique, but rather to explain why the books appealed to me and why I think you, too, may find them well worth reading.

Marcel Reich-Ranicki, The Author of Himself: The Life of Marcel Reich-Ranicki (Princeton University Press, 2001)

My German readers will be shaking their head in some wonderment: Marcel Reich-Ranicki? Him again? An autobiography from 1999 of a person who died in 2013? Did he not speak enough about he, him and himself during his lifetime so as to last a few lifetimes? My non-German speakers will be shaking their heads with a different wonderment: Marcel Reich who?

But then, consider that when published this book was the no. 1 best-selling book in Germany for 52 weeks. Must be something there, no?

There is. This was my best read of non-fiction in 2018. It is a totally improbable life written by a wordsmith of great talent (I use this expression as praise), the combination of which makes it “unputdownable.” If you have any interest in the world of German letters, or in the world of letters at all, you should not, as I had done, let it collect dust on the shelves of your library. There are plenty of second-hand copies on Amazon and other used books sites.

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Published on December 7, 2018
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I-CONnect Symposium: The Italian Constitutional Court on Assisted Suicide—Assisted Suicide: Crime or Right?

[Editor’s Note: This is Part II of our I-CONnect symposium on the Italian Constitutional Court’s recent judgment on assisted suicide. The Introduction is available here and Part I is available here.]


Davide Paris, Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg.

From a judgment on assisted suicide to a judgment on the refusal of treatment

The reasoning of the Court in the “Cappato-order” can be summarized as follows.

1) The State can criminalize the conduct of those assisting suicide because such criminalization can be justified as a form of protection of the right to life, in particular that of vulnerable people;

2) However, when a conscious patient is kept alive through life-sustaining treatments and suffers from an irreversible disease that causes unbearable physical or psychological pain, the help of others can be seen as “the only way to escape an artificial prolonging of life”;

3) Since the recent law on informed consent (n. 219 of 22 December 2017) provides the right to refuse life-sustaining treatment and obtain deep sedation until death supervenes, the legislature cannot deny patients in the aforementioned conditions the right to help in accelerating this process. It is therefore the duty of the legislature to complement law 219/2017 with a medical process allowing the patients to obtain assisted suicide.

While the question of constitutionality arose in a criminal proceeding against a person who helped another to go abroad to undergo assisted suicide that is prohibited in Italy, the Court ultimately states that such a practice must be allowed in Italy as well. Thus, the reasoning of the Court shifts the focus from a provision of the criminal code, as far as it criminalizes a specific form of assisted suicide, to the recent law on informed consent, as far as it does not provide for a specific form of assisted suicide. Rather than on the constitutionality of the provision of the criminal code criminalizing assisted suicide, the Court’s decision turns on the rationality of the recent law on informed consent. A quick look to the latter is therefore necessary to assess the impact of the Court’s decision.

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Published on December 7, 2018
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I-CONnect Symposium: The Italian Constitutional Court on Assisted Suicide—The Italian Constitutional Court and the Recent Decision on Assisted Suicide: The Guardian of the Constitution or the “Guardian” of the Parliament?

[Editor’s Note: This is Part I of our I-CONnect symposium on the Italian Constitutional Court’s recent judgment on assisted suicide. The Introduction is available here.]


Benedetta Vimercati, Research Fellow in Constitutional Law, University of Milan

As soon as the press release announcing the Italian Constitutional Court’s decision on assisted suicide had been made available, certain spur of the moment comments arose depicting the Court as a modern Pontius Pilate. The latter washed his hands of the matter, leaving the verdict to the crowd. The Italian Constitutional Court essentially set itself up to be in the same position, choosing to not decide placing the decision in the hands of the Parliament’s Chambers.

But, is this unquestionably true?

Undoubtedly, most scholars never would have expected this solution, which is unusual both substantively and procedurally. This outcome is probably the result of a disagreement within the constitutional judges. But we can only suppose this disagreement due to the fact that the Italian constitutional system asks for the unity of the judicial decision, the collegiality and unity of the panel (not providing, for example, for dissenting opinions).

Unraveling the knot of this highly sensitive issue, the Court delivered a verdict which provides food for thought and in particular two points regarding the content of the decision need to be looked at closely.

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Published on December 6, 2018
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Introduction to I-CONnect Symposium–The Italian Constitutional Court on Assisted Suicide

[Editor’s Note: I-CONnect is pleased to feature a special symposium on the Italian Constitutional Court’s recent judgment on assisted suicide. The symposium will feature four parts, including this Introduction. We are very grateful to Antonia Baraggia for convening this symposium for the benefit of the I-CONnect community.]


Antonia Baraggia, Assistant Professor of Comparative Constitutional law, University of Milan

End of life decisions push legal systems and the institutional actors involved in ruling on its legality into a grey area where the foundations of constitutional order – the right to life on one side and liberty (or self-determination) on the other – radically clash. This is what the case law on assisted suicide in Canada, the UK, France, Colombia and the ECHR – just to mention the most famous jurisdictions called to rule on the topic – has shown. And this what we are witnessing now in Italy where recently the Constitutional Court (ICC) was pushed to cross the threshold of the controversial issue of assisted suicide: indeed, on October 24 2018, the ICC ruled on the constitutionality of art. 580 of the Criminal Code, which considers “assisted suicide” a criminal offence punishable with from 5 to 10 years of prison as well as the “instigation” to suicide.

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Published on December 5, 2018
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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 contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The Constitutional Court of Moldova declared the unconstitutionality of certain provisions of the Criminal Code and Criminal Procedure Code, that bar access to case-files, during pre-trial investigation, to the victim of torture, civil party, suspect, the accused person, and to the party incurring civil liability.
  2. The Constitutional Court of Moldova held that some articles of the Contravention Code on the nullity of the administrative notice of violation of offences, such as injury of physical integrity or domestic violence, are unconstitutional since they prevent the authorities from meeting their positive procedural duties under Articles 3 and 8 of the European Convention of Human Rights.
  3. The Federal Constitutional Court of Germany declared void a statutory provision on civil and judicial service remuneration in the Land Baden-Württemberg providing for a lowering of the remuneration level in certain remuneration grades for civil servants and judges during the first three years of service.
  4. The Spanish Constitutional Court accepted for consideration the appeal against the anti-monarchy motion passed by the Catalan Parliament in October.
  5. The Constitutional Court of Russia has begun to consider the issue on the Chechen-Ingush border.
  6. The South African Constitutional Court heard arguments regarding the constitutionality of the use of corporal punishment in the home.

In the News

  1. The Libyan House of Representatives adopted a constitutional amendment and approved the formula for restructuring the Presidency Council (PC).
  2. The Kuwait’s National Assembly debated the constitutionality of questioning of the Prime Minister.
  3. The Philippines Parliament resumed plenary debates on a draft charter prepared by Speaker Gloria Macapagal-Arroyo that is separate from the federalism proposal of a consultative committee that President Duterte had created.
  4. The South Sudan National Constitution and Amendment Committee approved the Constitutional Amendment Bill to incorporate the peace agreement into the constitution.
  5. The Swiss Referendum to put the Swiss Constitution above international law has been rejected by voters.
  6. The Presidential decree in Ukraine allows suspension of constitutional rights during martial law.
  7. The Bulgarian President referred to the Constitutional Court with a request to declare certain provisions of the Law on Amendments and Supplements to the Corporate Income Tax Act as unconstitutional and non-conforming to international treaties.
  8. The Pakistan cabinet discussed changing province’s status in accordance with constitution.
  9. The Ethiopian Prime Minister discussed the electoral reform with the opposition.
  10. The Irish Government is going to ratify the two Status of Forces Agreements, otherwise known as SOFAs.
  11. The Cayman Islands pushes for constitutional reform to promote autonomy from United Kingdom.
  12. The Peoples Democratic Party (PDP) in Edo State called on President Muhammadu Buhari to sign the amended Electoral Act into law in Nigeria. 

New Scholarship

  1. Gyan Basnet, The Human Right to Development and Freedom from Poverty (2018) (examining the conceptual and practical implications of transforming the right to development from a political aspiration into a possible vehicle for the alleviation of poverty and its eventual eradication)
  2. Uladzislau Belavusau and Kristin Henrard, EU Anti-Discrimination Law beyond Gender (2018) (setting out to capture the striking developments and shortcomings that have taken place in the interpretation of relevant EU secondary law in the anti-discrimination field)
  3. Graham Butler, Implementing a Complete System of Legal Remedies in EU Foreign Affairs Law, (2018) 24 (3) Columbia Journal of European Law, p. 637–676 (analysing how a ‘complete system of legal remedies’, a thirty-year-old doctrine of European Union law from the Les Vert case, continues to shape the manner in which judicial review is conducted in EU foreign affairs law, and to broaden our understanding of how the Court continues to add pieces to the puzzle of EU foreign affairs law)
  4. Michael Dafel, The Constitutional Rebuilding of the South African Private Law (2018) (comparing how the judiciary and legislature give effect to constitutional rights within private law)
  5. Oran Doyle,The Constitution of Ireland: A Contextual Analysis (2018) (providing a critical analysis of Ireland’s Constitution, how it has developed, and future directions)
  6. Penny Green and Tony Ward, State Crime and Civil Activism (2018) (exploring the work of NGOs challenging state violence and corruption in six countries – Colombia, Tunisia, Kenya, Turkey, Myanmar and Papua New Guinea)
  7. Alexander Horne and Andrew Le Sueur, Parliament: Legislation and Accountability (2018) (providing a critical assessment of the UK Parliament’s two main constitutional roles-as a legislature and as the preeminent institution for calling government to account)
  8. Genevieve Lennon, Colin King, and Carole McCartney, Counter-terrorism, Constitutionalism and Miscarriages of Justice (2018) (exploring Professor Walker’s influence from three perspectives: historical reflection upon the development of the law and policy in relation to counter-terrorism and miscarriages of justice since the 1970s; critical analysis of the current law and policy; and future trajectory)
  9. Bronwen Manby, Citizenship in Africa: the Law of Belonging (2018) (providing a comprehensive exploration of nationality laws in Africa, placing them in their theoretical and historical context)
  10. Kálmán Pócza, Constitutional Politics and the Judiciary. Decision-making in Central and Eastern Europe (2018) (applying an innovative research methodology to quantify the impact and effect of court’s decisions on legislation and legislators, and measure the strength of judicial decisions in six CEE countries)

Calls for Papers and Announcements

  1. The Warwick University (UK) organises the Conference “White Slavery in Transnational and International Context, 1880-1950” in June 21, 2019, and welcomes paper, poster and creative presentations for a one day interdisciplinary event. The deadline for the submission is January 31, 2019.
  2. The Portsmouth Law School at the University of Portsmouth and the European University Institute (EUI) organise a 2-day international conference on “Corruption Democracy and Human Rights: Exploring new avenues in the fight against corruption”. The conference will be hosted by the EUI in Florence on 20th and 21st of June 2019. The organisers welcome submissions of abstract of paper by February 26, 2019.
  3. The ESIL Interest Groups on International Environmental Law and International Bio Law organise an IG event on the occasion of the ESIL Research Forum in Göttingen on Wednesday 3 April 2019, and the topic is  ‘Sound Science-Based Regulation in the Post-Truth Era: Domestic and International Rule of Law Under Fire’. ESIL invites submissions of paper by December 30, 2018.
  4. The Fourth Illinois-Bologna conference on “Constitutional History: Comparative Perspectives” will be held in Chicago on April 29- 30, 2019. The deadline for the call for papers is December 15, 2018.
  5. The 12th Annual Toronto Group Conference, hosted by the Osgoode Hall Law School and the Faculty of Law at the University of Toronto, will be held at the University of Toronto Faculty of Law on March 28th and 29th, 2019. The theme is “Resistance to International Law and the Global Legal Order”. The organisers welcome abstract of paper by December 14, 2018.
  6. The 20th International Roundtable for the Semiotics of Law (IRSL 2019), hosted by Instituto Jurídico da Faculdade de Direito da Universidade de Coimbra (UCILeR – University of Coimbra Institute for Legal Research), Portugal, will take place from 23-25 May 2019. The organisers invite submissions of abstracts by January 15, 2019.
  7. The Rule of Law for Development Institute at Loyola University Chicago School of Law will convene a conference on “Rule of Law in the 2030 Sustainable Development Agenda” to be held at Loyola’s Rome, Italy campus on 1-2 February 2019. The organisers welcome abstract of papers by December 7, 2018.
  8. The Czech peer-reviewed journal Acta Universitatis Carolinea Studia Territorialia welcomes papers for the special issues on International Organizations throughout the 20th and 21st Centuries: Successes, Failures, Transformations, and Challenges. The deadline for the abstract submissions is January 15, 2019.
  9. The Southern Illinois Law Journal invites proposals at the upcoming annual symposium, which will focus on public health surveillance. Accepted presenters will have the opportunity to participate on an interdisciplinary panel of scholars, and to have their papers published in a special symposium issue of the journal. The deadline for the proposals is December 20, 2018.
  10. The Indian Journal of Constitutional & Administrative Law (IJCAL) welcomes submissions of papers for the third volume by December 31, 2018. 

Elsewhere Online

  1. Elisabeth Baier, A power struggle or something more? The current disqualification saga at the United Nations International Residual Mechanism for Criminal Tribunals, Volkerrechtsblog
  2. Cillian Bracken, Episode 5 of the Celmer Saga – The Irish High Court Holds Back, Verfassungsblog
  3. Eoin Carolan, Ireland’s Citizens’ Assembly on Abortion as a Model for Democratic Change?: Reflections on Hope, Hype and the Practical Challenges of Sortition, IACL-AIDC Blog
  4. Fiona de Londras, The Citizens’ Assembly and the Disciplining of Activist Demands, IACL-AIDC Blog
  5. Mireia Grau Creus, Catalonia – Look at the Big Picture: The Alternative to There-is-no-Alternative, IACL-AIDC Blog
  6. Thorvaldur Gylfason, Iceland’s Ongoing Constitutional Fight, Verfassungsblog
  7. Karl Kössler, Streamlining Austria’s federation: Comprehensive reform after nearly a century?, Constitutionnet
  8. Dmitry Kurnosov, All Bark and no Bite? A Domestic Perspective on a Possible Russian Withdrawal from the Council of Europe, Verfassungsblog
  9. Pin Lean Lau, Affirmative Action in Malaysia: Constitutional Conflict with the ICERD?, Verfassungsblog
  10. Derek O’Brien, The End of the Caribbean Court of Justice? On failed constitutional referendums in Grenada, and Antigua and Barbuda, Constitutionnet
  11. Sarah Progin-Theuerkauf, Case C-713/17 Ayubi: A refugee is a refugee is a refugee (even with temporary right of residence), European Law Blog
  12. Argelia Queralt Jiménez, One Year After the (Symbolic) Unilateral Declaration of Independence in Catalonia: Some Facts and Figures, IACL-AIDC Blog
  13. Dana Schmalz, Will the ECtHR Shake up the European Asylum System?, Verfassungsblog
  14. Ben Ye, Can once valid legislation ‘become’ invalid? A case study of the High Court’s (now-lost) Nauru jurisdiction, AUSPUBLAW
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Published on December 3, 2018
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The Ground-Breaking Advisory Opinion OC-23/17 of the Inter-American Court of Human Rights: Healthy Environment and Human Rights

–Domenico Giannino, Lecturer in International Law, INSEEC University (London).

Contemporary processes of environmental degradation require the creation of innovative legal tools with the objective of preserving those resources that are intrinsically essential for the life of human beings.

The Inter-American Court of Human Rights Advisory Opinion OC-23/17 – issued in November 2017 at the request of the Republic of Colombia – adopts an innovative jurisdictional approach, recognising the right to a healthy environment as a fundamental right to the existence of humankind. Once more the Court has been the forerunner of an original interpretation of the American Convention of Human Rights, with the aim of guaranteeing the strongest protection possible to the conventional rights.

Leaving aside the consequences this opinion may have for the requesting State, it is worthwhile to analyse not only the relationship between environmental protection and human rights but also the substantial and procedural guidelines, concerning environmental responsibilities, for (potentially) all the member States.

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Published on December 2, 2018
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A Proposal for Gender Parity on Slovakia’s Constitutional Court

Šimon Drugda, PhD Candidate at the University of Copenhagen

The chairman of the Slovak National Council (NaCo) has formally initiated the process to select replacements for nine Constitutional Court (CC) judges who will finish their term in mid-February next year.

The schedule is tight. All nominations must be made to the NaCo by January 7. Members of Parliament must then choose twice the number of candidates for each vacancy, in this case a total of 18 selections. President Andrej Kiska must then pick nine judges based on their merit and high moral character to start working on February 18th.

The President will look “only for merit and moral character” in a CC judge.[1] But should he consider diversity considerations as separate criteria for an appointment? Diversity comes in many forms. In this post, I wish to focus on one in particular: gender. There is currently a disproportionate over-representation of men on the CC in contrast to the demographics of the professional judiciary.

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Published on November 30, 2018
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Constitutional Chaos in Sri Lanka: Constitutional Retrogression or Working Out of its Constitutional Salvation?

Jaclyn L. Neo, National University of Singapore Faculty of Law

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]

The current constitutional chaos in Sri Lanka throws up important questions about constitutional design, constitutional resilience, and constitutional culture. The present crisis was triggered when on 26 October 2018, the Sri Lankan President Maithripala Sirisena purported to sack Prime Minister Ranil Wickremesinghe and replaced him with Mahinda Rajapaksa as the new premier of Sri Lanka. Rajapaksa was a two-term president considered a hero by much of the island’s Sinhalese majority for ending a 37-year civil war. He has also been accused of grave human rights abuses during his tenure. In 2015, he lost his presidential bid when now President Sirisena teamed up with then opposition leader Wickremesinghe to put himself forward as a unity candidate against Rajapaksa and to bring to an end blatant corruption and abuse of power under Rajapaksa’s regime. Sirisena later appointed Wickremesinghe as prime minister, after Wickremesinghe’s party (UNP) won most seats (but fell short of a majority) in the 2015 parliamentary elections and formed a national unity government with Sirisena’s party (SLFP).

As is probably to be expected, Prime Minister Wickremesinghe refused to accept his sacking and continued to occupy his official residence. President Sirisena then sought to prorogue, then dissolve parliament on 9 November 2018, five days before it was due to reconvene, and sought to call for a general election on 5 January 2019. The dissolution was likely to avoid a vote of no confidence against Rajapaksa. However, following a petition by three political parties, including Wickremesinghe’s United National Party (UNP), the Supreme Court issued an interim order suspending the dissolution. Parliament reconvened and on 14 November 2018, passed a vote of no confidence against Rajapaksa. Without the confidence of a majority in Sri Lanka, Rajapaksa does not satisfy the constitutional prescription for the premiership. However, he has refused to go away and his supporters disrupted parliamentary proceedings even as a second vote of no confidence was put forward. Important questions have arisen about the constitutionality of events in Sri Lanka and addressing these issues allow us to examine broader issues about the importance of design (or not), democratic resilience, as well as the role of constitutional culture in preserving the constitutional order. Here, I discuss two such issues arising from the current political conundrum.

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Published on November 29, 2018
Author:          Filed under: Developments