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I·CONnect

Blog of the International Journal of Constitutional Law

What’s New in Public Law


Anubhav Kumar, Advocate & Researcher, Supreme Court of 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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. India’s Supreme Court expands scope of abortion law to allow single woman to end 24-week pregnancy.
  2. Supreme Court to issue separate rulings on affirmative action in college admissions.
  3. Supreme Court of Canada rules on scope of Charter right to counsel when in police detention
  4. Bulgarian Constitutional Court strikes down appointment of utilities regulator chief
  5. South Korean Constitutional court bars mobile carriers from sharing public’s data with authorities
  6. Constitutional Court dismisses appeal in the allocation of adequate and equitable police resources

In the News

  1. Former US President, Donald Trump’s ex-adviser Bannon convicted of contempt of U.S. Congress.
  2. Indonesia’s Constitutional court rejects call to legalise medicinal marijuana
  3. Lawyers for Busisiwe Mkhwebane have write to President Cyril Ramaphosa to have him testify before Parliament’s Section 194 inquiry.
  4. Hundreds protest against Tunisia draft constitution as vote looms
  5. Supreme Court blocks Biden immigration policy on deportation.

New Scholarship

  1. David Schultz and Jurij Toplak, Routledge Handbook of Election Law ( 2022) (exploring constitutional and legal aspects of elections and electoral disputes in Europe, Asia, North and South America, Africa and Australia)
  2. Lydia Tiede, Judicial Vetoes Decision-making on Mixed Selection Constitutional Courts (2022) (arguing that, under mixed selection, institutions choose different types of judges who represent different approaches to constitutional adjudication and thus have different propensities for striking down laws.)
  3. Vasabjit Banarjee and Sean P Webeck, Civil–Military Relations: Through a Perilous Lens (2022) (On what can we learn about civil-military relations by seeking to better understand the relationship between political institutions and the politicization of the military and argue that this accounts for the perils that exist within separation of powers (i.e., presidential) systems)
  4. Alexa Z. Chew and Rachel Gurvich, Saying the Quiet Parts Out Loud: Teaching Students How Law School Works (2022) (A teaching method as response to the disconnect law students noticed in curricula of law schools in terms of racial and other inequalities )
  5. Penelope Andrews, A Commission on Recognition and Reconstruction for the United States: Inspirational or Illusory? (2022) (Exploring the idea to establish a Commission on Recognition and Reconstruction (CRR) to comprehensively confront the ongoing challenges to racial justice in the US and envisaging the CRR as an adjunct to, and not a replacement for, the several measures currently being undertaken in law and policy to address these challenges.)
  6. Ferran Requejo, Marc Sanjaume-Calvet, Defensive Federalism Protecting Territorial Minorities from the “Tyranny of the Majority” (Forthcoming) (exploring the concept of defensive federalism as a protection of self- government against the “tyranny of the majority”)

Calls for Papers and Announcement

  1. The Hertie School invites applications and nominations for the Michael Endres Visiting Professorship for the Academic Year 2023/24 starting Sept 2023. Deadline is 1 Sept 2022.
  2. The Charles and Louise Travers Department of Political Science in the College of Letters and Science at the University of California, Berkeley invites applications for a full-time tenure-track Assistant Professor faculty position in political science, with preference for scholars who work in the areas of: Women and Politics, Public Law, Environmental Politics, IR, Formal Theory, Chinese Politics, or with a focus on institutions.
  3. Dickson Poon School of Law, King’s College London calls for scholars to participate in a sustained 3 week interdisciplinary and international conversation on equality, law and social justice to be held in London from 19th June to 9th July 2023. Details are available here.
  4. The “XVII. International Constitutional Law and Legal Institutions Conference” invites participation of leading academic scientists, researchers and scholars in the domain of interest from around the world to submit original research contributions for its conference to be held on January 16-17, 2023 Zurich, Switzerland
  5. Applications are invited from eligible candidates for the Commonwealth Professional Fellowships 2022-23. Details are available here.

Elsewhere Online

  1. Samer Alnasir, Iraq Urgently Needs a Real Constitution, IACL-AIDC Blog
  2. Marko Milanovic, Assessing the Authority of the ICRC Customary IHL Study, EJIL Talk
  3. Callixte Kavuro, Gender Inequality: The Vulnerabilities of Women under the Asylum System, African Law Matters
  4. Lewis Graham, Empirical work in Judicial Review: A rejoinder, UK Constitutional Law Association
  5. Dinesha Samararatne, The People in the Palace, Verfassungsblog
  6. Christine Savino, The Increased Imperative for International Law Protections Regarding Climate Induced Migration, Oxford Human Rights Hub
  7. David Renton, Why the law alone won’t save us – or the planet, Open Democracy
  8. Anushka Pardikar, Workplace harassment: Sensitization on PoSH act isn’t a priority for government institutes, shows RTI reply, The Analysis
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Published on July 25, 2022
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The Taliban and the Fall of Afghanistan’s Constitutional Tradition

–Shamshad Pasarlay (Visiting Lecturer, The University of Chicago Law School)

[Editor’s Note: This is one of our ICONnect columns. For more on our 2022 columnists, see here.]

The fall of the Islamic Republic of Afghanistan in August 2021 marked yet another abrupt rupture in political power in the country’s long and tumultuous history. The new de facto Taliban regime quickly dismantled democratic institutions established under the 2004 Constitution and are on path to impose upon the country an entirely different, autocratic constitutional regime. Sadly, Afghanistan is no stranger to abrupt political ruptures. In fact, the country’s modern history is beset with violent regime changes and armed conflict. Over the past century, each violent break in political continuity in Afghanistan has produced a new constitution, but the basic building blocks of the country’s constitutional order have remained largely unscathed. Put differently, Afghanistan’s many constitutions have remained faithful to the basic structure and the core identity of the country’s constitutional order even as the making of these constitutions has hardly been divorced from abrupt swings in political power.[1]

Take the 2004 constitution of Afghanistan as an example. That document was ratified at the dawn of a new era with massive international involvement, but it did not betray the country’s core constitutional identity. In fact, the 2004 Constitution “was largely based on [Afghanistan’s] 1964 constitution.”[2] The 1964 Constitution, itself, was written under the shadow of the country’s earlier monarchical constitutions, but it made explicit some principles that had been implicit in the practices and conventions that emerged during those early constitutional orders. Although the 2004 Constitution codified certain further changes, those alteration can, at best, be viewed as what scholars have described as “continuous changes,” meaning that they were constitutional modifications that remained faithful to the core identity and the basic structure of the constitutional order.[3] For example, the 1964 basic law proclaimed Islam as the “sacred religion of Afghanistan” and required that state legislation should not contradict the “basics of Islam.” It declared further that the norms of the Hanafi fiqh (Islamic law as developed over the century by scholars associated with the Hanafi school) would be residual, applied in cases before courts if (and only if) statutory (state) law provided no guidance. The 2004 Constitution borrowed these same provisions from the 1964 basic law without any notable alternations. Further, constitutional continuity before the fall of the Islamic Republic last summer was visible in constitutional norms that defined the prerogatives of the head of the state, the fundamental rights and freedoms of citizens, the organization and jurisdiction of courts as well as the structure and prerogatives of the legislature although some peripheral elements continued to change and evolve.[4]

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Published on July 22, 2022
Author:          Filed under: Analysis
 

Grappling with the Civil-Common Law Divide in Constitutional Law

Maartje De Visser, Singapore Management University, Yong Pung How School of Law

[Editor’s Note: This is one of our ICONnect columns. For more on our 2022 columnists, see here.]

Considerable attention has been devoted, in comparative law generally, to classificatory efforts. A quintessential distinction is that between the civil and the common law traditions, which is normally associated with the field of private law, as this is the field that general comparatists have tended to focus on. For those scholars, the implications of this divide and its enduring relevance are major subjects of debate, notably when it comes to the feasibility of legal transplants and in the context of initiatives to create transnational or international legal regimes. In contrast, in comparative constitutional law, there is a fairly widespread tendency to give the civil/common law divide short shrift. I would like to suggest that this may be misguided, and that the divide may also be of interest in our field.

References to the civil or common law have most frequently appeared in works that discuss the institutional arrangements for constitutional review by judges. The centralized Kelsenian model with its constitutional court is often seen as the logical, or even the only viable, option for civil law countries (though exceptions exist, think for instance of the Scandinavian jurisdictions, Brazil, and Mexico). Entrusting a separate judicial institution with the task of determining the constitutionality of legislation is in keeping with the traditional conception of the separation of powers in many of these countries, according to which regular judges should play a modest role and give effect to, rather than evaluate, the work of the democratically elected legislature. From a more operational perspective, there is a concern to safeguard legal certainty: if every judge could decide on the constitutionality of legislation, as under the decentralized ‘American’ model typically practiced in the common law world, contradictory assessments could materialize given the absence of the doctrine of stare decisis and the parallel existence of multiple sets of courts, each with their own jurisdiction and apex court in the civil law tradition. 

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Published on July 20, 2022
Author:          Filed under: Analysis
 

What’s New in Public Law


Matteo Mastracci, Digital Rights Researcher, Balkan Investigative Reporting Network (BIRN), and PhD Researcher, Koç University, Istanbul


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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. South Korea’s Constitutional Court held a hearing regarding a case on capital punishment. A committee under the Catholic Bishops’ Conference of Korea filed a petition in 2019 arguing that the death penalty is unconstitutional and requested a court review.
  2. The Constitutional Court of Costa Rica has ruled that condominiums have the full power to restrict or prohibit the possession of pets.
  3. The Constitutional Court of Latvia has commenced a review of a case in which Riga City Council challenges a decision made by the Minister of Environment Protection and Regional Development to halt Riga’s development plan.
  4. The Supreme Court of India has dismissed a plea seeking an independent probe into the alleged killing of 17 tribals during an anti-Naxal operation in Chhattisgarh in 2009.
  5. The Supreme Court of Pakistan dismissed the suo motu proceedings, declaring that the ruling and detailed reasons of the deputy speaker, as well as the PM’s advice to the President to dissolve the National Assembly, were unconstitutional and that the President’s dissolution of the Assembly had no legal effect.

In the News

  1. Pennsylvania governor has signed an executive order protecting the right to an abortion and other reproductive health care, such as contraception.
  2. Sri Lanka’s newly appointed acting President Wickremesinghe declared that he will follow the constitutional process and establish law and order in the country.
  3. The Albanian government has sent an “invitation for consultations” to business representatives on its controversial draft financial amnesty law to grant a fiscal amnesty to holders of illegal wealth.
  4. The opposition party Free Destourian in Tunisia recently announced that it took legal action to halt the political campaign for the referendum on the new draft constitution to be held on 25 July.
  5. Uzbekistan’s parliament extended a public consultation period on proposed amendments to the country’s constitution that had led to deadly clashes in the region of Karakalpakstan earlier this month.

New Scholarship

  1. Aziz Z. Huq, The Collapse of Constitutional Remedies (March, 2022) (exploring how and why the Constitution’s plan for independent courts has failed to protect individuals’ constitutional rights)
  2. Wojciech Sadurski, A Pandemic of Populists (July, 2022) (exploring a variety of constitutional and extraconstitutional strategies of populist leaders and parties and how they have reacted to the Covid-19 crisis)
  3. Jacob Weinrib, What is Purposive Interpretation? (July, 2022) (analysing a set of ideas on legal interpretivism behind the purposive approach to the interpretation of constitutional rights)
  4. Adam Shinar, Deconstructing Mixed Constitutions (July, 2022) (inquiring into the descriptive aspects of mixed constitutions and unpacking the meaning of what constitutes a mixed constitution)
  5. Eduardo Silva de Freitas, Money, Blackmail and Lawsuits (July, 2022) (discussing a number of aspects of UK constitutional law together with European human rights law on fair trial and access to justice)

Calls for Papers and Announcements

  1. Registration is now open for the Global Summit on Constitutionalism, to be held on March 16-18, 2023 at the University of Texas at Austin. Submissions are welcome for papers and panels.
  2. The Mediterranean International Centre for Human Rights Research (Reggio Calabria, Italy) is opening a call for the Post-Doctoral Programme in New Technologies and Law. Interested applicants can apply by 30 July 2022.
  3. Psychology, Crime and Law is seeking submissions for an upcoming special issue on Cross-cultural issues in psychology and the law. Interested authors should submit manuscripts by 31 December 2022.
  4. The German Law Journal invites proposals of special issues for the volume 24 (2023) and volume 25 (2024) on any topic likely to be of interest to the Journal’s readers. The submission deadline is 31 July 2022
  5. University of Oslo, PluriCourts, Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, invites paper proposal for the research project State Consent to International Jurisdiction that scrutinise State consent to international law more broadly. The submission deadline is 25 August and the tentative workshop, to be held online, will be on 29 – 30 September 2022.
  6. Ghent University is seeking to hire an assistant professor in the Faculty of Law and Criminology working in the area of European, Public and International Law. Interest applicants should apply by 16 August 2022.

Elsewhere Online

  1. Ardita Zeqiri, Kosovo MP’s Call for Media Controls Condemned by Unions, Balkan Insight
  2. Madalin Necsutu, EC Rule of Law Report Flags up Several Balkan States, B.I.R.D.
  3. Matthijs Bogaards, Autocracy in democracy’s mirror, The Loop
  4. Michał Stambulski and Karol Muszyński, The Poverty of Militant Doctrinal Constitutionalism in the European Union, Verfassungsblog
  5. Ori Pomson, General Principles of Law Formed Within the International Legal System?, EJIL: Talk!
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Published on July 18, 2022
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Addressing the Plights of Minorities under Ethiopia’s Ethnic Federal Structure: A Call for Legal Reform

Dunia Mekonnen Tegegn, Human Rights Lawyer and Gender Equality Advocate

Except for mentioning the term ‘minorities’ and reserving 20 seats under article 54(3), the FDRE Constitution does not define the term minorities. However, other laws have discussed minorities. The transnational proclamation No. 7/1992 under Article 2(6) defines minority nationality: a nationality or people who can’t establish their own self-government due to their small population. Proclamation No 111/1995, which made electoral constituencies to be determined based on 100, 000 inhabitants, defined minority nationalities under article 15/2 as those ethnic groups whose number is below 100,000 and hence unable to form their constituency. The newly enacted electoral Proclamation 1162/2019 under article 13(1) (d) underlines that the special representation of minority nationalities shall be determined by the House of Federation based on clear criteria to be established by the same organ. The FDRE constitution, apart from talking about minorities under article 54(2), doesn’t say anything about minorities and their protection under the constitution. All the protections foreseen in the constitution are for what the Constitution calls ‘nation, nationalities, and people.’ Nation, nationalities, and people are the subjects of the ultimate state power and the authors of the constitution.

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Published on July 16, 2022
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The New Chilean Constitutional Project in Comparative Perspective

David Landau, Florida State University College of Law[1]

The new Chilean constitutional text was delivered by the Constitutional Convention to President Gabriel Boric in a ceremony on July 4, 2022. This ended the year-long Constitutional Convention, itself sparked in large part by a set of massive social protests in 2019.

The next step is the referendum to approve or reject the new text, to be held on September 4, 2022. In the interim there will be a grueling, difficult campaign. While comparative data shows that referendums to ratify new constitutions are approved 94 percent of the time (usually by a large margin), this data is drawn from a wide range of contexts. Evidence suggests a difficult environment in the Chilean case. Approval is polling underwater. The Chilean right and center-right, marginalized from the Convention, will lead an aggressive campaign for the no vote. Some voices in the old Concertación coalition have expressed varying degrees of concern with the new draft. In the past week, one ex-president (Eduardo Frei) has come out in favor of rejection; another (Ricardo Lagos) has stated that both the new draft and the 1980 constitution do not currently reflect a social “consensus.” 

In this post, I reflect on two interlinked questions: What is one to make of the text from a comparative perspective? And what is at stake in the exit referendum?

The Text in Comparative Perspective

The impression that I share with other international observers is that the new constitutional text is reasonable. It contains some genuine and very important innovations. One of the most notable is gender parity, which was an element of the Convention itself that is now inscribed in the constitutional text, not just for Congress but also for other state institutions. This is to my knowledge the first constitution to create such a rule, and there is little question that the parity provisions in the Chilean constitution will be influential in future constitutions. The same seems true of the detailed and comprehensive environmental rights, and indeed the framing of the Chilean constitution as an ecological constitution.

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Published on July 16, 2022
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From the Least Dangerous Branch of Government to the Most Democratically Disruptive Court in the World

Miguel Schor, Professor of Law and Associate Director of the Drake University Constitutional Law Center

In The Federalist, Alexander Hamilton wrote that the United States Supreme Court is the least dangerous of the three branches of government as it lacks the power of the President or Congress. Hamilton did not and could not have envisioned the explosive growth in judicial power that is culminating in a constitutional revolution led by judicial conservatives that aims to refashion virtually the entire corpus of constitutional law. The most politically salient of these transformations is undoubtedly Dobbs v. Jackson Women’s Health Organization (2022) in which the Court overturned nearly 50 years of precedent protecting a woman’s right to reproductive health care. Dobbs, however, is only one piece of a profound set of changes unfolding at record speed. The conservative supermajority on the Court is curtailing the authority of Congress to solve national problems; expanding the authority of the executive to control the administration of laws; expanding the boundaries of free speech thereby providing business interests with a mechanism to fend off regulation; transforming the religion clauses into a potent tool that enables religious sects to opt out of laws they do not like while simultaneously enhancing their claims to government largesse; sharply limiting the power of the political branches to respond to gun violence by destroying long-standing understandings of the Second Amendment; and reconceptualizing the Fourteenth Amendment by reinterpreting substantive due process and equal protection.

The question Americans face is how did the “least dangerous branch” gain the power to become such a disruptive force in American politics. The commentary focuses on the political struggles that have produced the most conservative court in 90 years. The answer to this issue, however, lies in a combination of the politics of appointments, judicial ideology, and the structural features of our Constitution. America has what scholars call an “exceptional” Constitution because it differs in crucial respects from the constitutions of our peer democracies. Three features of our unusual constitutional order have enabled the Supreme Court to arrogate an unparalleled degree of authority.

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Published on July 12, 2022
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What’s New in Public Law


–Silvio Roberto Vinceti, Adjunct Lecturer, University of Modena and Reggio Emilia


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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The US Supreme Court ruled that a public school employee’s prayer during school sports activities is protected speech the public school cannot prohibit, since “the Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal.”
  2. The European Court of Human Rights condemned the actions of the Greek government in connection to the sinking of a migrant boat.
  3. Slovenia Constitutional Court legalized same-sex marriages and adoptions
  4. The Italian Constitutional Court upheld the government’s decision to bar parapharmacies from delivering antibody serology tests and rapid antigen tests.
  5. The Israeli High Court of Justice overturned a policy capping the number of Ukrainian refugees allowed to enter Israel.
  6. Bosnia Constitutional Court suspended the Republika Srpska’s Law on Medicines which is part of the controversial Declaration on Constitutional Principles of the Serb-majority entity.

In the News

  1. Japan’s longest-serving prime minister Shinzo Abe was assassinated.
  2. Boris Johnson announced his resignation as party leader thus opening the way for the nomination of a new Prime Minister.
  3. Constitutional scholar and head of Tunisia’s Constitution committee Sadeq Belaid disavowed the new constitution draft.
  4. Chile’s Constitutional Convention presented the constitution draft to President
  5. South Korea Constitutional Court is scheduled to hold a public hearing on the petition filed by Catholic Bishops for the abolition of the death penalty
  6. Sinn Fein lodged a motion of no confidence in the Irish Government after the ruling coalition lost the formal majority in Parliament
  7. The European Parliament rejected a motion of veto on the new classification system that adds some types of nuclear activity to the list of environmentally sustainable activities.

New Scholarship

  1. Ramona Coman, Antagonistic understandings of sovereignty in the 2015 Polish constitutional crisis (2022) (framing the Polish constitutional controversy as a struggle between opposing understandings of sovereignty)
  2. Surabhi Chopra & Eva Pils, The Hong Kong National Security Law and the Struggle over Rule of Law and Democracy in Hong Kong (2022) (describing various ways in which the Hong Kong National Security Law will impair rule of law in the country)
  3. Thomas Ward Frampton, The Dangerous Few: Taking Seriously Prison Abolition and Its Skeptics (2022) (addressing several skeptical stances against prison abolition)
  4. Richard Ekins, The Constitutional Dynamics of Brexit (2022) (offering an in-depth assessment of the events and constitutional issues involved in Brexit)
  5. Francesco Contini & Dory Reiling Double normalization: When procedural law is made digital (2022) (arguing that e-justice platforms outperform legal constraints and make judicial procedures more predictable and homogeneous)
  6. David Albert Jones, Laura Palazzani, Franz-Josef Bormann & Stefan Hofmann Legal Challenges to Restrictions on Assistance in Suicide in Italy, Germany and Austria: An Ethico-Legal Analysis (2022) (comparing rulings that struck down statutes prohibiting assisted suicide in different jurisdictions)
  7. Michael P. Foran & Conor Casey, Constitutionalism and the Common Good: On the Role of Unwritten Principles (forthcoming 2023) (matching debates over unwritten constitutional principles in Canada with the theoretical debate over common good constitutionalism)
  8. Domenico Amirante & Silvia Bagni (eds.) Environmental Constitutionalism in the Anthropocene Values, Principles and Actions (2022) (exploring several roles for the law and legal institutions in the epoch of Anthropocene)

Calls for Papers and Announcements

  1. The University of Palermo Ph.D. School in Human Rights: Evolution, Protection announces a workshop for Ph.D. students and young researchers on the topic “Human Rights and Democracy” to be held in Palermo (Italy) and online on December 12-14, 2022. Abstracts of no more than 500 words are due by July 31, 2022.
  2. The European Papers Jean Monnet Network (EP-JMN) welcomes proposals for the upcoming conference themed “Are the EU Member States Still Sovereign States Under International Law?” to be held at the Sapienza University of Rome on December 15th and 16th, 2022. Interested scholars should submit an English abstract (700-1.200 words) by September 5, 2022.
  3. The University of Pisa and Scuola Normale Superiore call for contributions to the conference “Past and Present: Why Rosa Luxemburg now?” on January 24-26, 2023. Prospective contributors should send a short abstract (300 words) and a short bio note (150 words) by September 15, 2022.
  4. The Rural Reconciliation Project at the University of Nebraska College of Law and the University of South Dakota Knudson School of Law will host a Law and Rurality Workshop to be held in person in Lincoln (Nebraska), on October 21, 2022. Abstracts are due by August 22, 2022.
  5. TheUniversity of New Hampshire Law Review and the Warren B. Rudman Center for Justice, Leadership & Public Service seek proposals for the annual Symposium, which will be held on October 7, 2022. This year’s Symposium theme is “Contemporary Issues in Election Law.” Interested individuals should submit an abstract of no more than 500 words by July 29, 2022.
  6. The Erasmus Initiative Dynamics of Inclusive Prosperity at Erasmus University invites abstract submissions for a workshop on “Human Rights and International Investment Law” to be held online on October 27-28, 2022. The deadline for submission is July 31, 2022.
  7. The Centre of Philosophy of the University of Lisbon will host an international interdisciplinary conference on the topic “The Idea of Person – Between Being and Becoming” to be held in a hybrid format at the School of Arts and Humanities of the University of Lisbon on April 3-5, 2023. Those interested in submitting Individual paper and panel submissions are expected to submit an abstract by December 31, 2022.

Elsewhere Online

  1. Michael Foran For Whom The Bell Tolls: Prime-ministerial Resignation and the Political Constitution Verfassungsblog
  2. Brian Christopher Jones, The emerging ‘Nothing to See Here’ judicial review defences, UK Constitutional Law Association Blog 
  3. René Repasi The ‘Taxonomy Delegated Act’: Beyond what delegated legislation may do EU Law Live
  4. Samer Alnasir Iraq Urgently Needs a Real Constitution IACL-AIDC Blog
  5. Andrea Maria Pelliconi The Trilateral Agreement between Turkey, Finland and Sweden and the Silence of Human Rights: The Need to Apply the MoU in Light of Human Rights and Refugee Law Protections  EJIL: Talk!
  6. John Cotter Untying the Ties that (don’t) Bind The European Council’s Discretion to Exclude Democratically Unaccountable Representatives Verfassungsblog
  7. Philip A. Wallach, Will West Virginia v. EPA cripple regulators? Not if Congress steps up Brookings
  8. Elizabeth R. Kirk and Dr. Ingrid Skop, Why the Dobbs decision won’t imperil pregnancy-related medical care SCOTUSblog
  9. J. Joel Alicea Why Originalism Is Consistent with Natural Law: A Reply to Critics National Review
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Published on July 11, 2022
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Overturning of Roe v Wade: Time to Rethink US Engagement With International Human Rights Law?

Frédéric Mégret, Professor and Dawson Scholar, Faculty of Law, McGill University

The aftermath of Dobbs v. Jackson Women’s Health Organization is leading lawyers throughout the US to fathom its implications, state by state. This drilling down is as it should be, given US constitutional and federal dynamics. Much less attention, however, has been devoted to the international fallout of the case, despite the notable place of international human rights law in various amicus curiae submitted to the Supreme Court. I suggest that, beyond the particulars of that law on the question of abortion, this is an opportunity to think anew the US engagement with international human rights law, an engagement that has long been marked by ambivalence and a sense of exceptionalism.

To be clear, there is a risk of overplaying the support that international human rights law provides for abortion as a right. There is no “pure” human rights position compared to what might be understood as polarized and politicized domestic debates. This is because international human rights law is itself a site of contestation over abortion. It is even more so that many specifically US debates and strategies, ironically,  have long seeped to the international level. Indeed, it is not as if international human rights law has not had its own blind spots when it comes to sexual and reproductive health, violations in the “private sphere” and women’s rights. The Inter-American system, notably, remains deeply divided on the question of abortion, and the European Court on Human Rights has not recognized a general right to abortion on demand.

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Published on July 8, 2022
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The Constitutional Value of Citizenship: the Latest Decision from Australia’s High Court

Elisa Arcioni, Associate Professor, The University of Sydney Law School

On 8 June 2022, in the decision of Alexander v Minister for Home Affairs [2022] HCA 19,  the High Court of Australia struck down a citizenship-stripping provision as unconstitutional. The ultimate decision rested on the process through which the citizenship could be lost. In the course of reasoning, the Court emphasized the fundamental value of citizenship, that its loss can constitute punishment, and that there are valid reasons for stripping a person of their citizenship.

Delil Alexander was born in Australia, a dual national of both Australia and Turkey. In 2013 he travelled to Syria where he married. The Australian Security and Intelligence Organisation reported it was ‘likely’ Alexander had joined ISIL by 2013. Between 2017 and 2021 Alexander was apprehended by Kurdish authorities, interrogated in Syria, charged, convicted and imprisoned in Syria and then pardoned. He remains in Syrian detention. As noted in the Australian judgment at [9]: ‘The detention of prisoners in government-controlled prisons in Syria has been associated with serious human rights violations, including torture.’

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Published on July 6, 2022
Author:          Filed under: Analysis