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I·CONnect

Blog of the International Journal of Constitutional Law

Samuel Moyn in Bogotá: Not Enough and Domestic Constitutional Histories

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

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

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

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

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

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

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

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

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

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

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

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

When Court Criticism Threatens the Rule of Law: A Three-Part Test

Brian Christopher Jones, Lecturer in Law, University of Dundee. Email: b.c.jones@dundee.ac.uk.

Criticism of the courts, although essential to the operation of democracy, has recently been tested on a number of fronts, leading to a host of allegations that such criticism may violate the rule of law. But one of the major problems in relation to this language is that we don’t have a good standard to determine what type of criticism is democratically acceptable, and what type of criticism threatens the rule of law. Scholars and journalists often use a common sense ‘smell test’ to decide whether certain statements traverse the rule of law, but this is imprecise and does not produce any agreed upon metric. This piece recommends a three part test for determining whether criticism crosses the bounds of acceptability, which attempts to add more sophistication into the process of parsing credible threats from merely harsh criticism.

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Published on September 5, 2018
Author:          Filed under: Analysis
 

What’s New in Public Law

Davide Bacis, PhD Student in Constitutional Law, University of Pavia (Italy)

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 German Federal Constitutional Court held that the core contents of fundamental rights must be guaranteed when transferring sovereign powers to international organizations.
  2. The UK Supreme Court ruled that denying benefits to the surviving partner of an unmarried couple and her children constitutes a violation of Conventional rights.
  3. The US Supreme Court declined to hear a case on Catholic foster care agencies and same sex couples’ rights.
  4. The Constitutional Court of South Korea held that it cannot nullify rulings of the Supreme Court unless they violate basic rights by applying laws that have already been declared unconstitutional.
  5. The Osaka High Court upheld the ruling of a lowers court stating that the male-only right to deny legal paternity is constitutional.
  6. The Supreme Court of India ruled that scheduled casts and tribes can benefit from reservations in government jobs only in their home states.

In the News

  1. The French Minister for the Environment, Nicolas Hulot, announced his resignation from office.
  2. The U.S. District Court for the Middle District of North Carolina ruled that NC Republicans illegally drew up congressional districts to benefit their party.
  3. The state of California passed a piece of legislation abolishing cash bail.
  4. The National Assembly of Benin passed legislation on climate change.
  5. The Government of Lithuania decided not to appeal the ECtHR ruling on their participation in the US extraordinary renditions program.
  6. Former Australian Prime Minister Malcolm Turnbull resigned from Parliament.
  7. The National People’s Congress of China adopted legislation on soil pollution prevention and control.
  8. Rebels from South Sudan approved the peace deal with the government.
  9. The Energy Minister of Tunisia was dismissed by the Prime Minister on corruption suspicions.
  10. The Polish government stated that if the ECJ were to rule in favor of the Supreme Court, it would ignore the ruling.

New Scholarship

  1. Helle Krunke and Björg Thorarensen (eds.), The Nordic Constitutions. A Comparative and Contextual Study (2018), (the book provides a comprehensive analysis of the constitutional systems of Denmark, Finland, Iceland, Norway and Sweden from a comparative perspective).
  2. Renae Baker, State and Religion. The Australian story (2018), (analyzing the relationship and the interaction between the state and religion from both a legal and a historical perspective in Australia).
  3. Carla Ferstman and Tony Gray (eds.), Contemporary Human Rights Challenges. The Universal Declaration of Human Rights and its Continuing Relevance (2018), (providing, through a collection of essays, a contemporary analysis to the principles enshrined within the Declaration).
  4. Rehan Abeyratne and Didon Misri, Separation of Powers and the Potential for Constitutional Dialogue in India (2018), (drawing from the peculiarities applied to the separation of powers in India, the paper focuses on public interest litigation and the quasi-legislative role played by the Courts).
  5. Reijer Passchier, Quasi-Constitutional Change Without Intent – A Response to Richard Albert (2018), (arguing that the theory of quasi-constitutional amendments can account for “silent constitutional change”).
  6. Adem Abebe, Taming Regressive Constitutional Amendments: The African Court as a Continental (Super) Constitutional Court (2018), (analyzing the effects of the African Court power to invalidate constitutional provisions on domestic constitutional judicial review).
  7. Sanja Bogojevic and Rosemary Rayfuse, Environmental Rights in Europe and Beyond (2018), (providing a comprehensive study on the historical and legal evolution of environmental rights).
  8. Hugh Lafollette, In Defense of Gun Control (2018), (offering an empirical approach on the right to bear arms and the right to be free from harm cause by guns).

Call for Papers and Announcements

  1. The Centre for Law and Culture at St Mary’s University, Twickenham (London), welcomes submissions conference “Race: Why can’t the law effect genuine equality?” conference, to be held on 7th December 2018. Abstracts of no more than 250 words must be submitted by September 28th, 2018.
  2. Lancaster University invites submissions for the “Systems Theory and Human Rights Conference” to be held October 18th, 2018. Abstracts no longer than 500 words are to be submitted within September 14th.
  3. The Irish Journal of European Law invites submissions for the 2018 Volume to be published on December 2018. Articles, either long (8 to 12 thousand words) or short (3 to 4 thousand words) must be submitted within September 28th, 2018.
  4. Tilburg University (The Netherlands) welcomes papers for the sixth bi-annual TILTing Perspectives conference on “Regulating a World in Transition” that will be held on May (15-17) 2019. Symposium, panel and workshop proposals, as well as abstracts, must be submitted within November 1st, 2018.
  5. ESIL welcomes submissions for the 2019 ESIL Research Forum on “The rule of law in international and domestic contexts: synergies and challenges” to be held in Göttingen on April 4-5, 2019. Abstracts of no more than 750 words must be submitted by September 30th, 2018.
  6. The University of Verona will host the TILT Young Academics Colloquium “What’s #trending in International and EU Law?” on May (23-24) 2019. Abstracts of no more than 8000 characters (spaces included) must be submitted by October 15th, 2018.
  7. The Indian Journal of Law and Public Policy invites submissions for its Volume V, Issue I. Submissions are to be sent by September 30th, 2018.
  8. The American Constitution Society welcomes submissions for the Junior Scholars Public Law Workshop to be held in New Orleans on January 3rd, 2019. Papers must be sent by October 19th, 2018.

Elsewhere Online

  1. Mark A. Graber, Constitutional Democracy in Crisis? The Right-Wing Populist Surge, Verfassungsblog
  2. Kai Ambos, Transitional Justice Without Truth?, EJIL: Talk!
  3. Frank Maxime Yankam Lemdjo, The constitutional problems to protect the principle of linguistic equality in Cameroon, AfricLaw
  4. Sébastien Platon, Disenfranchised by Accident: the Brexit Initiative and Brits abroad, Verfassungsblog
  5. Asli Ozcelik and Jenna Sapiano, The Bangsamoro Organic Law: A Concrete Step towards Peace in Mindanao, Political Settlements Research Programme
  6. David R. Cameron, Greece bailout ends but the consequences – high debt, high unemployment – remain, Yale Macmillan Center
  7. Richard Ashby Wilson, The Hartford Guidelines on Speech Crimes in International Criminal Law, EJIL: Talk!
  8. Evelien Brouwer, Schengen Entry Bans for Political Reasons? The Case of Lyudmyla Kozlovska, Verfassungsblog
  9. Jess Sargeant, Alan Renwick and Meg Russell, How long would it take to hold a second referendum on Brexit?, The Constitution Unit
  10. Janina Boughey, The Constitutional Crisis that Keeps on Giving: Could an Invalidly Appointed Minister’s Decisions be Challenged via Judicial Review?, Australian Public Law
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Published on September 3, 2018
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Call for Papers–Conference on “Amending America’s Unwritten Constitution”–Boston, May 16-17, 2019

Boston College Law School

with the support of

The Institute for Liberal Arts

invite submissions for

Conference on “Amending America’s Unwritten Constitution”

Boston College
Newton, Massachusetts
May 16-17, 2019

Submissions are invited from faculty and graduate students for a two-day conference on “Amending America’s Unwritten Constitution,” a timely subject of importance in history, law and politics.

Convened by Richard Albert (Texas), Yaniv Roznai (IDC), and Ryan C. Williams (Boston College), this Conference will be held on the campus of Boston College on Thursday and Friday, May 16-17, 2019.

Subject-Matter of the Conference

Recent constitutional scholarship reveals renewed interest in how unwritten constitutional norms and conventions underlying U.S. constitutional practice can and do change. The conference aims to advance the field by focusing on theoretical, conceptual, and practical questions concerning what it means to “amend” America’s “unwritten constitution” (including what has been called the “small-c constitution”), how the “unwritten constitution” can be amended, and who the relevant constitutional actors are in catalyzing and concretizing these changes.

Structure of the Conference

The conference will be structured around eight keynote lectures in addition to concurrent panels comprised of faculty and graduate students in law, history, political science and other fields of interest.

The conference keynote lectures will address the following themes:

1. What and Where is America’s Unwritten Constitution?
Mark Graber (Maryland)

2. What is an “Amendment”?
Sandy Levinson (Texas)

3. America’s Unwritten Constitution
Miriam Seifter (Wisconsin)

4. Amending Unwritten Constitutional Norms and Conventions
Frederick Schauer (Virginia)

5. Comparative Perspectives on America’s Unwritten Constitution
Mark Tushnet (Harvard)

6. The Role of the Political Branches in Unwritten Amendment
Vik Amar (Illinois)

7. The Role of the Courts in Unwritten Amendment
Carolyn Shapiro (Chicago-Kent)

8. The Role of the People in Unwritten Amendment
Emily Zackin (Johns Hopkins)

In addition to the keynote lectures, the two-day conference will feature concurrent panels featuring papers selected from this Call. The purpose of the panels is to convene groups of faculty and graduate students for a high-level discussion on enduring and emerging questions raised by the conference themes, broadly-defined. The panels will be chaired by the keynote lecturers. These panels will offer participants a combination of rigorous scholarly exchange and constructive guidance on the ideas in the papers. Conference meals will offer an opportunity for more relaxed social interaction.

Eligibility

Submissions for the concurrent panels are invited from faculty and students enrolled in graduate programs from various disciplines (e.g. history, law, political science, sociology). Papers are welcomed on any subject related to the eight keynote topics identified above. Papers may take comparative, doctrinal, empirical, historical, philosophical, sociological, theoretical or other perspectives.

Submission Instructions

Interested scholars should email a CV and abstract no longer than 750 words by November 15, 2018 to tdo@law.utexas.edu on the understanding that the abstract will form the basis of the pre-conference draft to be submitted by April 15, 2019. Scholars should identify their submission with the following subject line: “Conference on Amending America’s Unwritten Constitution” —Abstract Submission.” Please state in your submission to which of the above-mentioned eight themes your abstract suits. All materials should be submitted in PDF.

Notification

Successful applicants will be notified no later than December 1, 2019.

Costs

There is no cost to participate in this Conference. Group meals will be generously provided by Institute for the Liberal Arts at Boston College. Successful applicants are responsible for securing their own funding for all other expenses.

Questions

Please direct inquiries in connection with this Symposium to:

Richard Albert
The University of Texas at Austin
richard.albert@law.utexas.edu

Yaniv Roznai
Interdisciplinary Center (IDC) Herzliya
Email: yaniv.roznai@idc.ac.il

Ryan C. Williams
Boston College Law School
willibit@bc.edu

About the Convenors

Richard Albert is William Stamps Farish Professor of Law at the University of Texas at Austin. He writes about constitutional change, including amendment, replacement, interpretation and revolution. His publications have been translated into Chinese, Hungarian, Portuguese, Russian and Spanish. He is co-editor of the new Oxford Series in Comparative Constitutionalism, co-editor of the Routledge Series on Comparative Constitutional Change, book reviews editor for the American Journal of Comparative Law, co-editor of I-CONnect, chair-elect of the AALS Section on Comparative Law, and a former law clerk to the Chief Justice of Canada. Richard Albert holds degrees from Yale, Oxford and Harvard.

Yaniv Roznai is a Senior Lecturer at the Radzyner School of Law, Interdisciplinary Center (IDC) Herzliya. He holds a PhD and LL.M from The London School of Economics (LSE), and LLB and BA degrees in Law and Government from the IDC.  Yaniv was a Post-Doc Fellow at the University of Haifa and New York University (NYU), and a visiting researcher at Princeton University. He is the Co-Founding Chair of the Israeli Association of Legislation, and former secretary general of the Israeli Association of Public Law. His book, “Unconstitutional Constitutional Amendments – The Limits of Amendment Powers” was published in 2017 with Oxford University Press – Constitutional Theory Series.

Ryan Williams is an Assistant Professor of Law at Boston College Law School.  He writes about constitutional law, focusing particularly on the original understanding and historical development of constitutional provisions. His work has appeared or is forthcoming in The Harvard Law Review, The Yale Law Journal, the Columbia Law Review, the Virginia Law Review, and the Stanford Law Review, among others. Prior to joining Boston College, Ryan was an Associate-in-Law at Columbia Law School and a Sharswood Fellow at the University of Pennsylvania Law School.  He holds a J.D. from Columbia Law School.

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Published on September 2, 2018
Author:          Filed under: Developments
 

I-CONnect Facebook Page

Richard Albert, The University of Texas Law School

Tom Ginsburg, David Landau and I invite I-CONnect readers to join us also on Facebook here. We intend to use this Facebook group page to disseminate our blog posts and to bring our readers closer together in scholarly collaborations and exchanges.

We also maintain a Twitter page here.

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Published on August 31, 2018
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Constitutional Dyssynchrony and the Debate over Abortion in Latin America

Juliano Zaiden Benvindo, University of Brasília

It is commonly understood that “constitution-making tends to occur in waves,”[1] as Jon Elster wrote in his fascinating paper Forces and Mechanisms in the Constitution-Making Process in 1995. Another very relevant perception is that constitutionalism has become over the years increasingly inclusive despite many exceptions worldwide and the various setbacks democracies have endured, especially in the last years. Indeed, the Democratic Index from The Economist Intelligence Unit pointed out that 89 countries went backwards in 2017 in their democratic credentials, after decades of triumph of democracy. Constitutional waves can thus take place in both ways. The difficulty appears when such waves occur in dyssynchrony with what would be expected from a certain context. This is the phenomenon that we can call constitutional dyssynchrony, that is, to a certain degree, some constitutional matters may move towards a direction that appears to be against the backdrop of a certain context. A constitutional dyssynchrony can happen when, for example, a conservative backlash occurs as a reaction to mass protests clamoring for social change in a context that seems to favor liberal constitutional change,[2] or, on the contrary, when, during the rise of a more illiberal agenda in society and politics, a liberal policy gains momentum. As for this last hypothesis, a very interesting example is the current debate over decriminalizing abortion in Brazil – and in Latin America more broadly -, exactly when the region seems to be under a growing resort to conservatism. How can we understand such a paradox?

Since last month, a very interesting discussion of women’s rights and abortion has taken place on I-CONnect. Francisca Pou Giménez, just the day before the Argentinean Senate narrowly rejected legalizing abortion, had her column published emphasizing that the Argentina’s case strongly contradicts “the sort of diluted, narrow-minded majoritarian politics we assume to be the rule in the region.” Instead, as she remarks, “the strength, energy and reach of the political debate, and the interactions inside/outside Congress, have been outstanding” to the point that it proves that “when certain conditions are met, rights protection through majoritarian channels is possible and can further more profound and effective dynamics of social transformation.” A symposium on the Chilean Constitutional Court’s abortion decision provided five perspectives on the challenges Chile has faced in view of its Supreme Court’s ruling on the constitutionality of a bill that decriminalized abortion in three still very restrictive circumstances. Argentina and Chile follow a pattern that has popped up in the region, either through Congress (i.e., Uruguay) or the Judiciary (i.e., Colombia), and which has recently placed women’s rights in the middle of a heated clash of ideas embracing the various divides in society.

Brazil, which also has very restrictive legislation on abortion, has followed suit and is now moving towards a debate over abortion that has never before been seen in the country. The Socialism and Freedom Party (PSOL) filed in the Brazilian Supreme Court an abstract review claim aimed at decriminalizing abortion up until the twelfth week of pregnancy. As part of the procedure, on August 3rd and 6th, public hearings with representatives from civil society took place at the Supreme Court, where professors, scientists, human rights advocates, religious denominations, among others, could raise arguments before some Supreme Court Justices. Those public audiences are arguably aimed at providing the Court with diverse viewpoints on matters that normally foster moral disagreements, though empirical evidence has proven that they are way less effective than normally depicted.[3]

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Published on August 28, 2018
Author:          Filed under: Analysis
 

What’s New in Public Law

Chiara Graziani, PhD Student in Comparative Constitutional Law, University of Genoa (Italy)

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 Romanian Constitutional Court was asked to determine whether new rules on tenders introduced by the Romanian government restrict the right to appeal.
  2. The Supreme Court of Brazil was asked by the government of Roraima to halt the entry of Venezuelan immigrants.
  3. The Constitutional Court of Mali confirmed the results of presidential election, rejecting fraud allegations made by the opposition candidate.
  4. The Supreme Court of India issued a notice to the government asking to clarify the reasons why Chief Minister Yogi Adityanath should not be prosecuted for allegedly giving hate speech some years ago.
  5. The Supreme Court of Israel ruled that a policeman convicted for the murder of a Palestinian teenager deserves harsher punishment than nine months jail.
  6. The Supreme Court of Russia held that message decoding data cannot be considered as information covered by secrecy of correspondence guaranteed by the Constitution.
  7. The Federal Constitutional Court of Germany rejected a constitutional complaint against the prohibition of three associations.
  8. The Constitutional Court of South Africa will rule on the right to protest, after an application by civil society organizations.
  9. The Colombian Constitutional Court upheld the constitutionality of the Jurisdicción Especial para la Paz – a new Tribunal established to rule over crimes committed during Colombia’s conflict with the FARC – legitimizing the new court to proceed with its mandate.
  10. The Supreme Court of Canada dismissed an appeal by the city of Burnaby against Trans Mountain pipeline.

In the News

  1. Google will face lawsuit over allegations of illegally tracking movements of phone users, even when they use privacy settings to avoid it.
  2. The European Commission announced that Greece has successfully concluded a three year European Stability Mechanism support programme.
  3. Former CIA director threatened to file legal action against President Trump over stripped security clearance.
  4. Germany reached an agreement with Greece according to which the former will be allowed to return asylum-seekers to the latter.
  5. A U.S. federal court allowed a lawsuit denouncing alleged gerrymandering in Ohio to proceed.
  6. The U.S. Court of Appeals for the Fifth Circuit dismissed challenge to a Texas law allowing carry of handguns on university campuses.
  7. The President of Afghanistan announced ceasefire of actions against the Taliban.
  8. The President of Egypt ratified a new Internet control law.
  9. In a 9/11 case, a Guantánamo military commission judge prevented the government from using a detainee’s statements made during FBI interrogations.
  10. A federal appeals court ordered the Trump administration to implement chemical-safety rules introduced during the Obama presidency.
  11. The West Virginia Senate passed rules on the impeachment trial of three state Supreme Court justices.
  12. The U.S. deported a Nazi war crimes suspect to Germany after years of diplomatic wrangling.
  13. The Supreme Court of Florida was asked to block a constitutional amendment prohibiting dog racing.
  14. A former U.S. intelligence contractor was sentenced to prison for leaking information about Russian interference in U.S. elections.

New Scholarship

  1. John Bell, Mark Elliot, Jason N.E. Varuhas, Philip Murray, Public Law Adjudication in Common Law Systems (2018) (gathering essays on a variety of topics related to adjudication on matters of public law in common law jurisdiction, such as the interaction between “process” and “substance” and the scope of judicial review)
  2. Mark Elliot, Jack Williams, Alison L. Young (eds.), The UK Constitution after Miller. Brexit and Beyond (2018) (providing an analysis of the Miller judgment’s implications for the present UK constitution and its future evolution)
  3. Carla Ferstman, Tony Gray (eds.), Contemporary Human Rights Challenges. The Universal Declaration of Human Rights and its Continuing Relevance (2018) (collecting essays of academics, practitioners and activists on the Universal Declaration of Human Rights and the most pressing challenges that contemporary age poses to it)
  4. Massimo Fichera, The Foundations of the EU as a Polity (2018) (analyzing how EU constitutionalism evolved during the EU integration process and looking at recent events, as Brexit and the Eurozone crisis, from this perspective)
  5. Andrew Gilbert, British Conservatism and the Legal Regulation of Intimate Relationships (2018) (examining the relationship between family law and conservatism in Britain and assessing to what extent the Conservative party’s view on intimate relationships influenced its approach to family law)
  6. K. Greenawalt, Realms of Legal Interpretation. Core Elements and Critical Variations (2018) (focusing on courts’ decisional process and on how judges’ ideas and feelings influence the formulation of judgments)
  7. Giovanni Gruni, The EU, World Trade Law and the Right to Food. Rethinking Free Trade Agreements with Developing Countries (2018) (examining WTO law and EU free trade agreements from the perspective of a human right to adequate food)
  8. Christian Schaller, Strategic Surveillance and Extraterritorial Basic Rights Protection: German intelligence Law After Snowden 19 German Law Journal (2018) (focusing on German constitutional and statutory legal framework with regard to bulk surveillance and arguing in favor of replacing fragmented legislation with a uniform statutory regime of international communications)
  9. Brett G. Scharffs, A. Maoz, A.I. Woolley (eds.), Religious Freedom and the Law (2018) (analyzing religious freedom from the perspectives of both freedom of religion and freedom from religion)
  10. Arianna Vedaschi, Privacy and data protection versus national security in transnational flights: the EU-Canada PNR agreement 8 International Data Privacy Law (2018) (analyzing Opinion 1/15 of the European Court of Justice on the draft EU-Canada PNR agreement and assessing its implications)

Call for Papers and Announcements

  1. The British Institute of International and Comparative Law invites applications for the October intake of research assistants. The deadline is August 31, 2018.
  2. BYU Law Review seeks articles addressing the relationship between law and religion. Original articles must be sent no later than September 1, 2018.
  3. The European Criminal Law Academy Network issued a call for papers for the Ph.D. seminar “The External Dimension of EU Criminal Justice Area”. Applications, including a CV, information on Ph.D. starting and envisaged end date and a description of the research subject, must be sent by September 5, 2018.
  4. Melbourne Law Schools encourages submission of abstracts from Ph.D. students for the 11th Melbourne Doctoral Forum on Legal Theory, to be held in Melbourne on December 4-5, 2018. The deadline for submission of abstracts is September 5, 2018.
  5. The Innovation Center for Law and Technology at New York Law Schooland the Center on Law and Information Policy at Fordham University School of Law invite submissions of abstracts for papers to be presented during the Second Northeast Privacy Scholars Workshop, to be held at Fordham Law School on November 9, 2018. Abstracts must be submitted by September 7, 2018.
  6. The Italian Chapter of ICON-S invites submissions for its inaugural conference, to be held in Rome on November 23-24, 2018. The deadline is September 14, 2018.
  7. The i-Courts research center calls for submissions of paper proposals for the conference “Who Is Afraid of the International Criminal Court?”, to be held in Copenhagen on January 24-25, 2019. The deadline to send proposals is September 15, 2018.
  8. The T.M.C. Asser Instituut invites submissions of abstracts to join a masterclass on empirical and socio-legal methods in international law, to be held in The Hague on November 20, 2018. Abstracts must be sent no later than September 17, 2018.
  9. The University of Melbourne offers a fellowship to early career researchers in any field of law. The deadline to submit applications is September 20, 2018.
  10. The German Law Journal invites proposals of special issues related on any topics in which the Journal’s readers may be interested. The deadline for submission is October 31, 2018.

Elsewhere Online

  1. Catherine Barnard and Emilija Leinarte, EU/UK Dispute Resolution post-Brexit in the light of the White Paper, EU Law Analysis
  2. Sarah Grant, Military Commission Judge Bars Government from Using Defendant’s Statements to FBI ‘Clean Teams’ in 9/11 Case, Lawfare
  3. Catherine Haguenau-Moizard, The 2018 French Asylum and Immigration Act, Verfassungsblog
  4. Jan Przerwa, The Pisciotti Case: How Can Free Movement Rights Impact EU Citizens Extradition to a Third Country?, European Law Blog
  5. Jack Sheldon, Intergovernmental Relations and the English Question: Options for Reform, Constitution Unit
  6. Anne Twomey, Australian Constitution May Disqualify High-ranking Member of Parliament, Constitutionnet
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Published on August 27, 2018
Author:          Filed under: Developments
 

(Un)Constitutional Amendment No. 95/2016 and the Limit for Public Expenses in Brazil: Amendment or Dismemberment?

–Bárbara Mendonça Bertotti, LL.M candidate at the Pontifical Catholic University of Paraná, Curitiba, PR, Brazil

Origin and Objectives of the Amendment n. 95 to Brazilian Constitution

The Constitutional Amendment n. 95/2016 to the Brazilian Constitution was a result of a constitutional amendment bill proposed by the President of the Republic and approved by the Brazilian National Congress. The amendment provoked intense and strong social resistance, notably the student mobilization also known as “springtime”, that led to a series of demonstrations and occupations of high schools and universities. At least 22 of the 26 Brazilian States plus the Federal District had schools and universities occupied by the students. According to a survey carried out by the Brazilian Union of High School Students (UBES), 1,197 schools, institutes and universities were occupied.[1]

Despite this social movement, the government (without democratic legitimacy and unconcerned with its lack of popularity) defended its constitutional amendment bill, which was finally approved on December 16, 2016.

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Published on August 24, 2018
Author:          Filed under: Analysis
 

Spanish Supreme Court Bringing UN Treaty Bodies One Step Closer to International Courts?

Viljam Engström, Åbo Akademi University, Finland

As we have recently learned from Koldo Casla at EJIL:Talk! and elsewhere, the Spanish Supreme Court affirmed in July this year that the views expressed by UN Human Rights Treaty Bodies, in this case the Committee on the Elimination of Discrimination Against Women (CEDAW), in individual complaints are binding on the state and that the state must comply with the decision of the Committee. The case before the Supreme Court dealt with whether Spain was obliged to give effect to an earlier ruling of the CEDAW Committee (from July 2014), finding Spain to have infringed the rights of the complainant, Ms González.

In its reasoning, the court seems to have recognized that the CEDAW and the Optional Protocol do not establish a directly enforceable character of decisions on individual complaints. Article 7(4) of the Optional Protocol merely establishes that States “shall give due consideration” to the views of the Committee. However, Article 24 of CEDAW does commit States to “adopt all necessary measures” in order to achieve the full realization of rights at the national level. Given that Article 96 of the 1978 Spanish Constitution affirms that international treaties “form part of the internal legal order”, and that the constitutional bill of rights must be interpreted in accordance with international human rights law (Article 10(2) of the Constitution), the Supreme Court considers compliance with Treaty Body decisions a requirement of the rule of law. Not doing so would breach the principles of legality and legal hierarchy proclaimed in Article 9(3) of the Constitution. The Supreme Court concludes that the “inexistence of a specific procedure to execute the views of the CEDAW Committee (…) constitutes a breach of a legal and constitutional mandate by Spain”.

It is not unheard of that views have been relied on by national courts. However, this is not the same thing as using views of domestic courts as the basis for wrongfulness.

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Published on August 22, 2018
Author:          Filed under: Developments