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I·CONnect

Blog of the International Journal of Constitutional Law

What’s New in Public Law


–Mohamed Abdelaal, Assistant Professor, Alexandria University Faculty of Law

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 Supreme Court of the Netherlands ordered the government to reduce greenhouse emissions by 25 percent by the end of 2020. The Court noted that “every country is responsible for its part and can, therefore, be called to account for it.”
  2. The Constitutional Court of Ukraine declared a bill reducing the number of Ukrainian MPs to 300 constitutional.
  3. The High Court of Kenya will decide on whether to compel the President to swear in judicial appointments.
  4. The Constitutional Court of Austria ruled that reducing welfare money aimed at immigrants is unconstitutional.
  5. The Supreme Court of Poland warned that the government’s plans to overhaul the judicial system could force EU departure.
  6. The European Court of Justice held that airlines may be liable for harm caused by hot coffee to passengers.

In the News

  1. In Iraq, Kurdistan Regional Parliament Speaker calls for renewed efforts to draft regional constitution.
  2. Political parties in Nicaragua presented a broad proposal for electoral reforms.
  3. The Labour Committee in Romania’s Chamber of Deputies voted to abolish special pensions, with the exception of military ones.
  4. US House of Representatives impeaches President Donald Trump.
  5. The Ukrainian Parliament passed a bill that cancels prosecutorial immunity for lawmakers.
  6. The US Senate approved a bill to crack down on robocalls.
  7. The Constitutional Review Commission of Gambia concluded public consultations on the new draft Constitution.

New Scholarship

  1. Faraguna, Pietro, Populism and Constitutional Amendment, in Delledonne, Martinico, Monti, Pacini, Italian Populism and Constitutional Law,  (forthcoming 2020) (offering a conceptual map of the populist abuse of constitutional amendment on a theoretical level)
  2. Janeček, Václav, Ownership of Personal Data in the Internet of Things, 34 Computer Law & Security Review 1039-1052 (2018) (examining the traditional dividing line between personal and non-personal data and argues for a strict conceptual separation of personal data from personal information)
  3. Priel, Dan, Evidence-Based Jurisprudence: An Essay for Oxford, Analisi e Diritto (2020) (arguing that much contemporary jurisprudence takes a very narrow understanding of the subject matter, and gives priority, to the point of exclusivity, to one methodological approach — analytic philosophy — over all others)
  4. Tsai, Robert L., Considerations of History and Purpose in Constitutional Borrowing, 28 William & Mary Bill of Rights Journal (forthcoming 2019) (arguing that it is a judge’s responsibility to help foster an unruly constitutional culture where overlapping rights and values are ubiquitous rather than to be obsessed with maintaining a mythical notion of balance)
  5. Peterson, Farah, Constitutionalism in Unexpected Places, Virginia Law Review (forthcoming 2020) (discussing the point that before, during, and after the ratification of the federal Constitution of 1787, Americans believed that they were governed under an unwritten constitution)
  6. Twomey, Anne, Brexit, the Prerogative, the Courts and Article 9 of the Bill of Rights (2019) (considering the Brexit controversies in the United Kingdom from an Australian parliamentary perspective)
  7. Sigalet, Geoff, Webber, Grégoire and Dixon, Rosalind, Introduction: The ‘What’ and ‘Why’ of Constitutional Dialogue (2019) (exploring dialogue’s democratic significance, examines its relevance to the functioning and design of constitutional institutions, and covers constitutional dialogues from an international and transnational perspective)
  8. Odile Ammann, Domestic Courts and the Interpretation of International Law – Methods and Reasoning Based on the Swiss Example (Brill/Nijhoff 2019) (exploring the interpretation of international law in Swiss domestic courts)

Call for Papers and Announcements

  1. The International Society of Public Law welcomes submissions for the Annual Conference at the University of Wroclaw in Poland on July 9-11, 2020.
  2. The online platform Democratic Decay & Renewal (DEM-DEC) released its latest Global Research Update (November-December 2019 – available here), containing new research worldwide from late October to late December 2019; items suggested by DEM-DEC users; a list of forthcoming research; and new additions to the Resources Database. The Update Editorial was published on the IACL-AIDC Blog on Thursday 19 December, and will shortly be published on Verfassungsblog.
  3. The Athens Public International Law Center of the National and Kapodistrian University of Athens School of Law has issued a call for papers for a colloquium on “International Investment Law & State Capitalism,” which will take place October 15-16, 2020, in Athens.
  4. The ESIL Interest Group History of International Law will host a pre-conference workshop on “The Founding of Solidarity in the International Community” for graduate and Ph.D. students as well as early-career scholars at the 2020 ESIL Research Forum at the University of Catania.
  5. The Indian Contemporary Law Review (ICLR) invites manuscripts for its Volume 1, Issue 4.
  6. The American Constitution Society is pleased to announce the Thirteenth Annual Richard D. Cudahy Writing Competition on Regulatory and Administrative Law.
  7. A call for applications has been issued to the Winter Seminar 2020 on freedom and security.
  8. HKU Law is now taking applications for its two-year Global Academic Fellows program. The aim of the fellowship is to provide aspiring law professors time and resources to focus on preparing to enter the international teaching market. Apply here and submit any questions to the Director at jkroncke@hku.hk.

Elsewhere Online

  1. David R. Cameron, Blue wave knocks down the red wall and UK will leave EU on Jan. 31, Yale MacMillan Center
  2. Benjamin G. Davis, A Perfect Impeachment of Presidential Crime: Emmitt Till Justice or Nuremberg Justice?, Jurist
  3. Jennifer Koshan and Linda McKay-Panos, The Alberta Inquiry and Freedom of Expression, ABlawg
  4. Dan Harris, Why China Chaos and Crackdowns Will Make 2020 the Best Year Ever for International Business Lawyers, China Law Blog
  5. US Supreme Court Could Limit Job Bias Lawsuits Against Churches, Voice of America
  6. Emre Turkut, Osman Kavala v. Turkey: Unravelling the Matryoshka Dolls, Strasbourg Observers
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Published on December 23, 2019
Author:          Filed under: Developments
 

Book Review: Martina Trettel on “The Cambridge Handbook of Deliberative Constitutionalism”


[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Martina Trettel reviews The Cambridge Handbook of Deliberative Constitutionalism (Ron Levy et al., eds., Cambridge 2018)


–Martina Trettel, Senior Researcher, Institute for Comparative Federalism

The recently published Cambridge Handbook of Deliberative Constitutionalism (edited by Ron Levy, Hoi Kong, Graeme Orr, and Jeff King), with its twenty-six chapters, provides a comprehensive overview on one particular aspect of deliberative democracy, i.e. the one that comes across constitutionalism and constitution-making.

Despite being a quite new phenomena, “deliberative constitutionalism” has recently gained considerable attention from scholars around the world. Also given the quick proliferation of deliberative democratic practices employed for reforming constitutions, the topic has been studied from diverging disciplinary angles and through different methodological and terminological approaches. The book intends to convey all these contributions, offering a broad perspective on how deliberative democracy and constitutionalism interact, by means of what the editors describe as a work of “fusion and creation” (p. 1).

The book brilliantly achieves its purpose, melting the vast field of constitutionalism and the more recent studies on deliberative democracy, at the same time creating the general framework where to accommodate past and future analyses on “deliberative constitutionalism”.

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Published on December 22, 2019
Author:          Filed under: Reviews
 

Towards an Anti-Bully Theory of Judicial Review

Yaniv Roznai, Harry Radzyner Law School, Interdisciplinary Center (IDC) Herzliya *

In an environment of democratic erosion, courts are under political pressure. Populist projects of constitutional change modify the rules for appointment and jurisdiction of bodies like constitutional courts in an attempt to weaken their independence, pack them and even capture them. Often, courts are threatened in ways that makes it difficult for them to ‘do their job’ without being worried about possible overrides and political backlash. For example, in 2015, reacting to a judicial decision not to his liking, a Member of Knesset from the Jewish Home Party of the governing coalition, Motti Yogev, was interviewed on Television and said “A D9 [bulldozer] shovel should be used against the High Court… We, as the legislators, will make sure to restrain the judicial rule in this country – the tail that wags the dog.”[1] In the UK, after the abovementioned Cherry/Miller 2 case, Tory MP Desmond Swayne was interviewed on Television and after claiming that the Supreme Court “well overstepped the mark” in its prorogation judgement, continued to claim that “We should have a commitment to abolish the Supreme Court”.[2] Should judges take into consideration such a possible political ‘backlash’ when they adjudicate?

There is no doubt that judges worry about possible political ‘retaliation’ in reaction to their rulings. Judges, as the literature on judicial behavior suggests, consider the attitudes of other actors in a strategic manner. Should – and if so, to what extent – courts consider the political ramifications of their decisions (the ‘political backlash’) concerning sensitive issues that are crucial for the democratic order? Is it better for them hunker down in order to survive, or instead to confront the political branches in order to try and save democracy while risking retaliation or even their own destruction?

In order to analyze these questions, I use the analogy of anti-bullying tactics to evaluate the different models of judicial reactions to political pressure. One of the best ways to deal with bullying is to avoid it. Courts often have tools to control their dockets, but assuming a court cannot avoid the case, and must make a decision, there are three main possible models: The first model is confrontation. Researchers from social psychology demonstrate how this may be the harshest scenario for someone dealing with a bully; it usually makes things worse. As bullying researcher Marano says, “fighting back is the worst defense”, as the bully is usual stronger and bigger.[3] It may possibly just bring an escalation that the judiciary is likely to lose.

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Published on December 21, 2019
Author:          Filed under: Analysis
 

50-day Silence Period on Publication of Opinion Polls Before Election in Slovakia


Simon Drugda, PhD Candidate at the University of Copenhagen

The Slovak Parliament recently passed a legislative rider to extend the length of the silence period, which prohibits publication of opinion polls before an election. Slovak electoral rules had previously prohibited political campaigning and the publication of opinion polls 14 days before an election taking place. The new legislation makes the Slovak moratorium “third-longest in the world after Cameroon and Tunisia,” according to the Slovak Academy of Sciences.[1]

The legislative change was widely criticized as unconstitutional, not least because legislative riders that are materially unrelated to the proposed law are prohibited by Article 93(3) of Standing Orders of the Parliament. The President of the Republic, therefore, decided to veto the extension on the grounds that the extended silence period disproportionately infringes the information rights of citizens and media. The President also declared that she would challenge the legislation in court and request an interim injunction against its effect if the Parliament were to overturn her veto.

The presidential veto has only a suspensive effect in law and can be overturned by a simple majority of all MPs (76 out of 150) pursuant to Article 84.3 of the Constitution. On November 26, the Parliament overturned the veto against expectations of most legal scholars and political observers. The Parliament has to publish the new electoral rule in the official gazette, which will enable the President to challenge the legislation at the Constitutional Court.

This contribution first explores comparative case-law on the extension of the silence period and then critically examines the constitutionality of the 50-day silence period in the Slovak law. This is not a difficult case in substance. The Slovak Constitution, as well as the European Convention of Human Rights, only allow the limitation of information rights if the restrictive measure pursues a legitimate aim, is necessary, and proportionate. The 50-day silence period fails to meet all of these criteria and is thus clearly unconstitutional.

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Published on December 20, 2019
Author:          Filed under: Analysis
 

Book Review: Patrícia Jerónimo on “Legal Transplants in East Asia and Oceania” (Vito Breda ed.)


[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Patrícia Jerónimo reviews Legal Transplants in East Asia and Oceania (Vito Breda ed., Cambridge University Press 2019)]


—Patrícia Jerónimo, Director of the Research Centre for Justice and Governance (JusGov), University of Minho

The debate about the feasibility of legal transplants may seem to be a thing of the past, but the interest in observing the achievements and perils of ongoing processes of legal transplantation is clearly alive and well, as attested by this collection of essays edited by Vito Breda. Organised in three parts and twelve thematic chapters, the book combines a stimulating review of the theoretical framework with illustrations of foreign-inspired legal reforms in countries such as Australia, China, Japan and Myanmar. The range and depth of the analysis make the book a must-read for comparative law scholars and students all over the world.

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Published on December 19, 2019
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Call for Papers–2020 ICON•S Conference–July 9-11, 2020–Wrocław, Poland


ICON·S | The International Society of Public Law looks forward to welcoming you to the Annual Conference at the University of Wrocław in Poland on July 9-11, 2020. This will be the seventh Annual Conference of ICON·S, following the six Annual Conferences (Florence 2014, New York 2015, Berlin 2016, Copenhagen 2017, Hong Kong 2018, Santiago 2019) which have been overwhelmingly successful, thanks to the support of our Members.

We express our thanks and gratitude to our colleague and friend, Wojciech Sadurski, a member of the ICON·S Council, for his assistance in bringing our Annual Conference to Wrocław.

2020 Conference Theme

ICON·S invites submissions for the 2020 Annual Conference on “Public Law, (Dis)trust and DissentAPPLY NOW AND SUBMIT YOUR PROPOSAL

Trust is fundamental to the operation of public law and public institutions, and to public law values. For public law to function, citizens must have faith in courts and other government institutions. Trust is also closely connected to public law values such as openness and transparency: without transparency, there can be little trust in government. But without trust, governments will often hesitate to operate in an open and transparent way. Trust likewise underpins norms of debate and deliberation, essential to both public law and political democracy.

But trust – both among citizens and between citizens and public law institutions – is at an all-time low in many constitutional democracies worldwide. Long-respected international institutions, such as the EU and UN, no longer enjoy the same levels of trust as in earlier periods among many citizens and governments. Technological change is fundamentally challenging citizens’ trust in the administrative state. And citizens’ trust in democratic institutions, and in the democratic process, has eroded in many countries, in part due to a fall in trust among citizens themselves.

How, then, can we hope to trust in public law and institutions, while simultaneously reaffirming our commitment to public law values such as democracy and the rule of law? How can we reshape international organizations, regulate or channel new technologies, or overcome citizen distrust in ways that rebuild public law, institutions and values? Moreover, which public law institutions and values are needed most in today’s contexts?

These questions have global relevance and significance, yet also special significance for many divided societies, and societies facing new forms of populist challenge and politics.

Questioning the past is also essential to understand how to move forward. Hence the 2020 Annual Conference invites participants to engage as much with historical perspectives on these questions, as with contemporary ones.

Another important set of questions concerns the relationship between trust, distrust and norms of political and legal debate, dialogue and dissent. Does dissent, for example, undermine trust or promote it? Are there differences in this context between legal or judicial dissent and political dissent? And are there limits to when trust is warranted, or where trust should in fact give way to distrust and dissent?

The 2020 Annual Conference will offer a forum to discuss and debate these and related issues, bringing together leading scholars, political leaders and jurists from around the world.

We are pleased to announce that the 2020 Opening Keynote Lecture will be delivered by Koen Lenaerts, President of the Court of Justice of the European Union.

Additional plenary speakers will include:

  1. Adam Bodnar, Assistant Professor, University of Warsaw, Polish Ombudsman
  2. Daniela Caruso, Jean Monnet European Union Professor, Boston University
  3. Siri Gloppen, Director of the Centre on Law and Social Transformation and Professor, University of Bergen
  4. Fleur Johns, Professor, Faculty of Law, University of New South Wales
  5. Gerald Knaus, Chairman of the European Stability Initiative, Berlin
  6. Sanford Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair and Professor of Government, The University of Texas at Austin
  7. Bilyana Petkova, Assistant Professor, Faculty of Law, Maastricht University
  8. Shalini Randeria, Rector of the Institute for Human Sciences, Vienna
  9. Maciej Szpunar, First Advocate General, Court of Justice of the European Union

Papers and Panels

At the heart of the Conference are concurrent sessions which take place over the Annual Conference’s three days. These concurrent sessions consist of the papers and panels selected through this Call.

ICON·S particularly welcomes proposals for fully-formed panels, but also accepts individual papers dealing with any aspect of the Annual Conference’s themes.

Paper and panel proposals may focus on any theoretical, historical, comparative, empirical, jurisprudential, ethical, behavioral, ethnographic, philosophical or practical, policy-oriented perspective related to public law, including administrative law, constitutional law, international law, criminal law, immigration and citizenship law and human rights and may address domestic, subnational, national, regional, transnational, supranational, international and global aspects of public law. Paper and panel proposals may be related to or distinct from the overarching themes of the conference.

We strongly encourage the submission of fully-formed panels. Panel proposals should include at least three and no more than six papers by scholars who have agreed in advance to participate, and panels must be formed in accordance with the Society’s commitment to gender balance.

This year ICON·S will include two new additions to the program: Fora; and Working Groups.

New Addition: Fora

A Forum is a new format at the Conference, consisting of a scholarly gathering of at least twelve (12) persons who commit to discussing a scholarly subject chosen by the convener of the forum. Fora will last the same duration as a panel and will be scheduled in the same time slot as ordinary panels.

Fora will differ from ordinary panels in two respects: (1) there will be no presentation of papers; and (2) the convener of the forum will assign materials to be read in advance. The assigned materials may be a book, a set of papers, or something otherwise thought useful to the conversation on the subject of the forum. The convener will be responsible for circulating assigned materials prior to the conference.

To submit a proposal for a Forum, a convener must submit the following information:

  1. The full name, email address and institutional affiliation of the convener
  2. The title of the Forum
  3. An abstract of the Forum topic no longer than 250 words
  4. A reading list for the Forum. Please note that the reading list should conform to OSCOLA citation rules or another common citation system, to allow for easy accessibility
  5. The full name, email address, and institutional affiliation for each participant
  6. Confirmation that the Forum contains at least twelve (12) persons who have committed to participating in the program and who reflect the values of equality, diversity, and inclusion that are embedded within the history, tradition, and Mission of ICON·S

For the purpose of receiving inquiries and sharing reading materials and/or an outline of the agenda with any member interested in attending or joining the Forum, the convener must approve publicizing their email address.

New Addition: Working Groups

Similarly, a Working Group consists of a group of scholars hoping to build deeper connections with a view to future collaboration on research and engagement connected to the mission of ICON·S. Working Group meetings will last the same duration as a panel and will be scheduled in the same time slot as ordinary panels.

Working group meetings will differ from ordinary panels in the following respects: (1) there will be no presentation of papers; and (2) the convenor will create an agenda to discuss possible future collaboration among members. The key aim of a working group is to enhance the capacity of ICON·S to serve as a forum for supporting cross-national and inter-disciplinary research, following a recommendation to this effect by a sub-committee of the Council led by Tom Ginsburg. Working groups may be big or small, and may focus on any subject in public law.

To submit a proposal for a Working Group, a convener must submit the following information:

  1. The full name, email address and institutional affiliation of the convener
  2. The title of the Working Group
  3. A description of the purpose of the Working Group no longer than 250 words
  4. A proposed agenda for the Working Group discussion

For the purpose of receiving inquiries with any member interested in attending or joining the Working Group, the convener must approve the publication of their email address.

Please Note
Please kindly note that each participant can present no more than 2 papers and participate – as presenter, chair or discussant – in 4 sessions maximum.

We invite potential participants to refer to the ICON·S Mission Statement when choosing a topic or approach for their papers or panels.

ICON·S is by no means restricted to public lawyers! We particularly welcome panel proposals that offer genuinely multi-disciplinary perspectives from various areas of law (including civil, criminal, tax, and labor law), as well as from scholars in the humanities and the social sciences (e.g. history, economics, political science, sociology) with an interest in the Conference’s themes. We welcome submissions from both senior and junior scholars (including doctoral students) as well as interested practitioners.

Submissions

All submissions of papers, panels, Fora and Working Groups must be made through the ICON·S website by 23h59 GMT on March 1, 2020. To access the submission page, you need to be a member of ICON·S. Please register or log in with your existing ICON·S account and make sure you have paid your membership fee.

Successful applicants will be notified by April 6, 2020.

All participants will be responsible for their own travel and accommodation expenses.

We very much look forward to receiving proposals.

See you at ICON·S Wrocław 2020!

Lorenzo Casini & Rosalind Dixon
Co-Presidents of ICON·S

Dariusz Adamski, Richard Albert, Gráinne de Búrca, Felicia Caponigri, Marta Cartabia, Sabino Cassese, Claudia Golden, Jakub Grudniewski, Ran Hirschl, David Kosar, Nico Krisch, Joana Mendes, Radoslaw Michalski, Anna Śledzińska-Simon, Agnieszka Szymerowska, Renata Uitz, Sergio Verdugo, Joseph Weiler and Fred Felix Zaumseil
Members of the ICON·S 2020 Organizing Committee

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Published on December 18, 2019
Author:          Filed under: Developments
 

What’s New in Public Law


Sandeep Suresh, Assistant Professor, Jindal Global Law School, India

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. Supreme Court of USA agreed to hear the case relating to the release of President Donald Trump’s tax returns and financial records in March 2020.
  2. Constitutional Court of Germany reversed a lower court’s order which allowed the extradition of two Russian nationals of Chechen origin. The Court based its decision due to the risk of political persecution of the constitutional complaints or to criminal proceedings that do not satisfy minimum standards. Moreover, the lower court could not have allowed extradition merely based on a verbal assurance by Russia to conduct criminal proceedings outside Chechnya.
  3. Supreme Court of India set up a panel headed by a former apex court judge to inquire into the recent police encounter killing of four accused persons in a rape and murder case in Hyderabad, Telangana.
  4. In a petition by parents and teachers of a Christian school, the Constitutional Court of Korea upheld the constitutional validity of regulations issued by the Seoul Metropolitan Office of Education, which banned hate speech against homosexuality.
  5. A transgender woman, a parent of an 8-year old child, filed a petition challenging the constitutionality of the law that prevents her from changing her legal gender if they have children who are younger than 20 years.

In the News

  1. The President of India gave assent to the Citizenship Amendment Bill that seeks to grant Indian Citizenship to persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities on the ground of religious persecution in Pakistan, Afghanistan and Bangladesh.
  2. Indian Union Government’s Law Minister, Ravi Shankar Prasad, introduced the much-awaited Personal Data Protection Bill, 2019 in the Lower House of the Indian Parliament.
  3. The Election Commission of Thailand will approach the Constitutional Court to dissolve the opposition party, Future Forward Party, for accepting illegal donations.
  4. The House of Representatives of Nigeria is discussing a Bill that seeks to separate the Attorney General’s Office from the Minster of Justice’s Office in order to remove political interference.
  5. The 5th Circuit Court of Appeals invalidated Mississippi’s law that banned abortions after 15 weeks of pregnancy.

New Scholarship

  1. Upendra Baxi, How to Feminize the Basic Structure Doctrine? The Elusive Futures of Women’s Rights as Human Rights, Justice Sunanda Bhandare Memorial Lecture (November 2019) (exploring how to feminize the basic structure doctrine by incorporating women’s perspectives of gender justice into it).
  2. Melissa Crouch, States of Legal Denial: How the State in Myanmar Uses Law to Exclude the Rohingya, Journal of Contemporary Asia (2019) (considering the constitutional creation of Rakhine State as an example of state denial through the law of the Rohingya in Myanmar).
  3. Kai Jäger, When Do Campaign Effects Persist for Years? Evidence from a Natural Experiment, American Journal of Political Science (Forthcoming 2019) (suggesting that persuasion could be durable if election candidates provide an unchallenged interpretation of political events).
  4. Vladislava Stoyanova, Common law tort of negligence as a tool for deconstructing positive obligations under the European convention on human rights, The International Journal of Human Rights (2019) (examining how the common law tort of negligence can provide guidance to clarify some of the disparate analytical issues surrounding positive obligations under the European Convention on Human Rights).
  5. Robert L. Tsai, Considerations of History and Purpose in Constitutional Borrowing, William & Mary Bill of Rights Journal (Forthcoming 2019) (arguing, inter alia, that perfect harmony among rights might not always be normatively desirable and we must consult history in a broadly relevant rather than a narrow originalist fashion to resolve clashes between rights).
  6. Reinhard Zimmermann, The Compulsory Portion in German Law, in Kenneth GC Reid, Marius J de Waal, and Reinhard Zimmermann (eds.), Comparative Succession Law, Vol. III: Family Protection (Oxford University Press, Forthcoming 2020) (discussing the constitutional law aspects of the compulsory portion of the German Law of Succession).

Call for Papers and Announcements

  1. Duke University is inviting applications for the Duke-Leiden Institute in Global and Transnational Law’s the 2020 summer program on ‘international and comparative law’ which will be held from June 14-15, 2020 at Leiden University in The Hague. Interested applications must apply before May 1, 2020.
  2. Max Planck Institute for Comparative & International Private Law and the University of Witwatersrand School of Law are inviting papers for the one-day Workshop on ‘Decolonial Comparative Law’ on October 6, 2020, at the University of Witwatersrand (Johannesburg). The workshop precedes the International Academy of Comparative Law’s Congress on ‘Diversity & Plurality in Law’ which takes place from October 7-9 in Pretoria. This Workshop is not connected to the International Congress, and participation in this workshop is not limited to or dependent on attendance at the International Congress. Interested scholars should submit abstracts of their papers by February 6, 2020.
  3. The University of Dundee is inviting proposals for streams/panels for the Critical Legal Conference on the theme of ‘Frankenlaw’ which will be held from September 3-5, 2020 at the University of Dundee. Interested conveners of streams or thematic panels should submit their proposals by February 29, 2020, to CLC2020@dundee.ac.uk.
  4. National Law School of India University’s flagship journal National Law School of India Review is accepting paper submissions for the upcoming Issue (Volume 32(2)) on ‘Unpacking Reservations in India: Theory, Practice, and Beyond’. Interested authors must submit their papers to mail.nlsir@gmail.com by March 31, 2020.
  5. Forced Migration Review is calling for papers to be published in the upcoming Issue (No.64) on ‘human trafficking and smuggling’. Interested authors should submit their articles by February 17, 2020, to

Elsewhere Online

  1. Bernard M. Dickens, Ontario Court: Conscientious objectors must provide an effective referral, Reprohealthlaw Blog
  2. Julius Yam, Hong Kong’s Anti-mask Law: A Legal Victory with a Disturbing Twist, IACL-AIDC blog
  3. Giancarlo Anello, Constitution Before Administration: The Latest Decision of the Italian Constitutional Court Fosters the Freedom of Religion in Italy, Verfassungsblog
  4. Tomiwa Ilori, A socio-legal analysis of Nigeria’s Protection from Internet Falsehoods, Manipulations and Other Related Matters Bill, AfricLaw
  5. Roshni Sinha, Explainer: The Citizenship (Amendment) Bill, 2019, PRS Legislative Research
  6. Meeran Chadha Borwankar, We need to invest in four wings of criminal justice system — police, prosecution, judiciary, prisons, The Indian Express
  7. Catalina Fernández Carter, Blind Protestors: The Use of Force by the Chilean Police in the Current Social Unrest, Opinio Juris
  8. Fotis Bregiannis and Argyro Chatzinikolaou, López Ribalda and Others v. Spain – covert surveillance in the workplace: attenuating the protection of privacy for employees, Strasbourg Observers
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Published on December 16, 2019
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New President of Italian Constitutional Court–Marta Cartabia


–The Editors

Last week, Marta Cartabia was elected President of the Italian Constitutional Court, making her the first woman in the Court’s history to hold this position.

A long-time leader in ICON-S, Cartabia sits on the Society’s Council and has been a regular participant in the Society’s Annual Conference. Cartabia is also Co-President of the Italian Chapter of ICON-S. She has moreover published her scholarship in ICON and is also a contributor to–and indeed one of the originators of–the I-CONnect-Clough Center Global Review of Constitutional Law.

Please join us in congratulating President Cartabia on her new position!

Max Allegritti, Photographer
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Published on December 14, 2019
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JHH Weiler, Co-Editor in Chief, in Conversation with Professor Wojciech Sadurski

J.H.H. Weiler, Co-Editor in Chief, ICON, and Wojciech Sadurski, University of Sydney

One of the more ‘elegant’ ways of restricting freedom of political speech and academic freedom is to use libel and defamation laws. It has increasingly become the weapon of choice of various political actors and regimes. Nobody would gainsay that academics may libel others and that politicians can be libelled and have the right to have their names and reputations vindicated.  But, in my view, the proper forum for such is a civil court in an action between individuals. Even then, excessive legal costs and outlandish damages (the UK is notorious for such) may produce an unwarranted chilling effect.

It becomes particularly alarming and at times pernicious when a libel or defamation allegation for statements made in the arena of political contestation is transferred from a private civil action to a public criminal one. To be subject to the opprobrium resulting from a criminal conviction as well as criminal sanctions raises the stakes by several registers and the chilling effect risks becoming a freezing effect.

The fact that countries with impeccable democratic credentials like France regularly use the criminal law in this manner does not kosher this particular pig. EJIL and its Editor had to stand trial for criminal defamation defending academic freedom. It was not pleasant.

Where it is used, we expect courts to understand the huge stakes involved and whilst affording protection to reputations unjustly sullied, not allowing themselves to become complicit in undue restriction of academic freedom and freedom of expression in the political arena, the life breath of democracy. 

Robust political contestation necessitates a wide latitude to ‘words which offend’. I have googled, to give by one example, the expression “bunch of criminals” – producing over one million hits. It, or similar broad brush expressions, have been used endlessly to, say, characterize the White House, the Netanyahu government, the British Labor Party and other political bodies with understandable impunity as part and parcel of the aforementioned robust political contestation.

Wojciech Sadurski, is a renowned professor of public law, well known to readers of EJIL and ICON (he is, inter alia, a Council member of ICON-S and Board Member of ICON, the sister journal of EJIL). He has been  a colleague of mine in more than one institution and, full disclosure, a friend of many years despite our several intellectual and academic disagreements (Wojciech articulated some of the sharpest criticism of my book A Christian Europe, to give but one example). He is a critic of the current government of his native Poland, some would say an outspoken critic, and author of Poland’s Constitutional Breakdown published this year by OUP.

Recently he stood trial for libel in Warsaw. I thought it would be of interest to interview him for our readers.

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Published on December 13, 2019
Author:          Filed under: Editorials
 

The Joint Declaration to the Inter-American System of Human Rights: Backlash or Contestation?

Melina Girardi Fachin (Universidade Federal do Paraná); Bruna Nowak (Universidade Federal do Paraná)

In April 2019, Argentina, Brazil, Chile, Colombia and Paraguay issued a joint declaration to the Inter-American Commission on Human Rights with critical observations directed to the Inter-American System of Human Rights. The states reaffirmed their commitment to the American Convention on Human Rights and stated that the joint declaration aimed to improve “the operation, the functioning, and the efficacy of the System.”

If, in principle, the declaration seemed to reaffirm the basis of the Inter-American System, its content has generated apprehension and outright rejection. This is even more true because the five signatory states are currently governed, after recent elections, by right-wing or even extreme right wing leaders, following periods of leftist governments.

The declaration evoked the principle of subsidiarity, which sustains the conditions for admissibility of a petition before the Inter-American System. It also urged the Commission and the Inter-American Court of Human Rights to respect the “legitimate space of autonomy” of the states in assuring the rights and guarantees of the American Convention in accordance with their own democratic processes.

The declaration also referred to the necessary reduction of the time a petition takes to processed before the Inter-American Commission. Curiously, the states also called the attention for the strict application of the sources of International Human Rights Law in the decisions of both the Court and the Commission.

The recognition of a “margin of appreciation” of the states in the fulfillment of their conventional obligations was also mentioned. In addition, the declaration highlighted the importance of considering the political, economic, and social realities of the states whenever recommendations and remedies are imposed.

Despite having a tone favorable to dialogues between national and supranational systems, the declaration seemed to seek the strengthening of internal autonomy, as well as the reduction of the Inter-American System’s role in the defense of human rights. Therefore, the statements defended by the declaration sounded like a warning, heightened by the significant political changes that have recently taken place in Latin America, where a nationalist and populist discourse, with underestimation – or even rejection – of minorities has gained ground.

It is clear that the content of the declaration aims to challenge the course of action and recent jurisprudence of the Inter-American System. Many have said that it represents a dangerous form of backlash against the active role of the Inter-American System, especially its Court. We disagree and label the declaration more a form of contestation than backlash.

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Published on December 12, 2019
Author:          Filed under: Developments