magnify

I·CONnect

Blog of the International Journal of Constitutional Law

Gender and the Law of the Sea

[Editor’s Note: ICONnect is publishing a series of book reviews that recently ran in ICON (Volume 18, Issue 2: July 2020) on “Law and Gender in the Literature.”]

Irini Papanicolopulu ed. Gender and the Law of the Sea.  Brill Nijhoff,  2019 (hardback). Pp. xxii+ 368. € 138.00. ISBN: 9789004375161.

Isabel Lischewski

International Journal of Constitutional Law, Volume 18, Issue 2, July 2020, Pages 651–654, https://doi.org/10.1093/icon/moaa042

https://academic.oup.com/icon/article/18/2/651/5880171

Almost thirty years have passed since the seminal “Feminist Approaches to International Law” by Hilary Charlesworth, Christine Chinkin, and Shelley Wright appeared in the American Journal of International Law,[1] and these years have seen the rapid expansion of the field of feminist international legal studies.[2] Scholars have applied a feminist lens to a range of international legal issues, but have overall directed most of their attention towards human rights law and related subjects. There still seems to be something of a tacit understanding that most areas of classic state-centered international law are not accessible to a feminist analysis, or that the result of such an analysis is evident beforehand: namely, that the core pillars of the inter-state legal order are constructed in a completely gender-neutral way.

It is thus no small undertaking to come forward with a collection whose title brings together the words “gender” and “law of the sea,” be it only because of the gut reaction most international lawyers will have towards the combination. The law of the sea, with its rules regarding coastal delineation, fisheries, and flag states, setting the stage for cases such as Lotus and North Sea Continental Shelf, is viewed as probably the single most technical and functional area of international law, thus implying, for most, gender neutrality. However, in the same breath, it also carries the strongest implication of “traditional,” Hemingwayesk masculinity and of a world where women are not.[3] It is this second assumption that puts the first one—that the law of the sea is indeed neutral—under some intellectual strain.

Read the rest of this entry…
Print Friendly, PDF & Email
Published on September 20, 2020
Author:          Filed under: Reviews
 

Symposium | Part III | Reducing the Size of the Italian Parliament: The Wrong Means to the Right End


[Editor’s Note: I-CONnect is pleased to feature a four-part symposium on the upcoming Italian constitutional referendum on the reduction of members of the Parliament. This is the fourth entry of the symposium, which was kindly organized by Antonia Baraggia. Her introduction is available here.]


Francesco Palermo, Professor of Comparative Public Law, University of Verona and Head of the Institute for Comparative Federalism, Eurac Research, Bolzano/Bozen.

There are good reasons both in support and against the constitutional reform which curtails more than one-third of the members of the Italian bicameral parliament. The more convincing arguments bolstering the approval of the reform are in essence two. First, the constitutional amendment is limited in scope, and draws lessons from the previous, comprehensive reforms of the parliamentary system voted by parliament in 2006 and 2016 respectively, but both rejected by popular vote. These proposals have been considered too ambitious, while the current one is constitutionally humble yet symbolically significant, and might reduce the perceived gap between society and political representation, as this is what most people allegedly want. Second, supporters of the reform maintain that it might set in motion further and deeper constitutional changes.

Read the rest of this entry…
Print Friendly, PDF & Email
Published on September 18, 2020
Author:          Filed under: Developments
 

Symposium | Part II | Reducing the Size of the Italian Parliament: Why I Will Be Voting No


[Editor’s Note: I-CONnect is pleased to feature a four-part symposium on the upcoming Italian constitutional referendum on the reduction of members of the Parliament. This is the third entry of the symposium, which was kindly organized by Antonia Baraggia. Her introduction is available here.]


Francesca Rosa, Professor of Comparative Public Law, University of Foggia.

On September 20th and 21st Italian voters will decide whether to confirm the reduction in the number of members of the Italian Parliament: during the current legislature the Parliament passed a constitutional amendment cutting the number of deputies to 400 (from 630) and the number of senators to 200 (from 315). At the same time, the maximum number of life senators is set at 5 (articles 56, 57 and 59 of the Constitution). The root of this constitutional reform is twofold. The first is political and it is linked to the rise of the Five Star Movement and its participation to the government. After March 2018 elections the Five Star Movement was the relative majority party in both Houses of Parliament and consequently became the main ally of the two coalition governments led by Giuseppe Conte since June 2018: Government Conte I (June 2018 – September 2019) in coalition with the Northern League, and Government Conte II (September 2019 to date) in coalition with Partito Democratico (the Italian Democratic Party)[1].

Read the rest of this entry…
Print Friendly, PDF & Email
Published on September 17, 2020
Author:          Filed under: Developments
 

Symposium | Part I | Reducing the Size of the Italian Parliament: A Limited Constitutional Reform with No Risks and Some Benefits


[Editor’s Note: I-CONnect is pleased to feature a four-part symposium on the upcoming Italian constitutional referendum on the reduction of members of the Parliament. This is the second entry of the symposium, which was kindly organized by Antonia Baraggia. Her introduction is available here.]


Carlo Fusaro, Professor of Comparative Public Law, University of Florence.

After voters turned down two comprehensive attempts to revise part II of the Italian Constitution, in 2006 (the project had been passed by the center-right coalition led by Mr. Berlusconi) as well as in 2016 (the project had been passed by the center-left coalition led by Mr. Renzi), the political parties of the Italian Parliament have unanimously approved a very simple and limited amendment which reduces the members of the Chamber of deputies from 630 to 400 and the elected members of the Senate from 315 to 200.

Read the rest of this entry…
Print Friendly, PDF & Email
Published on September 16, 2020
Author:          Filed under: Developments
 

Silwad Municipality v. The Knesset: The Invalidation of the Settlement Regularization Law and its Aftermath

Tamar Hostovsky-Brandes, Ono Academic College Faculty of Law

Introduction

On June 9, 2020, the Israeli Supreme Court delivered its decision in the case of Silwad Municipality v. The Knesset, regarding the Settlement Regularization Law (the “Law”), enacted by the Knesset in 2017. The Court invalidated the Law by an 8 to 1 majority, determining that it violated the constitutional rights to property, dignity and equality, protected by Basic Law: Human Dignity and Liberty, and did not meet the requirements of the Basic Law’s limitation clause.

The Enactment and Content of the Law

The Law was enacted in 2017, following a political crisis that emerged after the Supreme Court ordered the evacuation of Amona, a Jewish settlement built on private Palestinian land. The ruling in Amona was consistent with the Court’s previous case law, in which it declared that while the general question of the legality of the settlements was non-justiciable, establishment of settlements that involved violation of private property rights is subject to judicial review.

The Law establishes a mechanism for expropriation of private Palestinian land on which settlements were built, in exchange for compensation. It determines that the state will take hold of such land and allocate the rights to hold and use it to the Israeli settlers that reside on it. The mechanism is applied to settlements established in “good faith,” that is, without the settlers knowing that the land was privately owned, or with government assistance, defined broadly.  

Read the rest of this entry…
Print Friendly, PDF & Email
Published on September 15, 2020
Author:          Filed under: Developments
 

What’s New in Public Law


Boldizsár-Szentgáli Tóth, Research Fellow at the Hungarian Academy of Sciences and the Etvos Loránd University


Developments in Constitutional Courts

  1. The Supreme Court of India agreed to examine if religious places of all faiths can be reopened.
  2. The Supreme Court of Latvia organized a public survey on the issues of the rule of law. Kore than 1000 respondents from all over Latvia participated in the process and called for more clearly defined laws.
  3. Representatives of the Constitutional Court of Ukraine took part in the discussion on issues of restriction of human rights and freedoms in health emergencies.
  4. The Constitutional Court of Turkey ruled that preventing those who were dismissed from public service from bar registration violated the principle of legality.

In the News

  1. The Supreme Court of Arizona ruled that backers of voter initiatives must collect qualifying signatures in person even during a pandemic because the Arizona Constitution requires it.
  2. The Arizona Supreme Court ruled that a state law that creates harsher sentences for people who threaten others only because they associate with or belong to a gang is unconstitutional.
  3. Alaska Supreme Court struck down that authorized subject-to-appropriation bonds to pay outstanding cashable oil and gas tax credits that were issued during a tax credit program that ended in 2017.
  4. British Columbia Supreme Court decided against legalizing private health care following a decade-long battle.
  5. The President of Albania set next April as the date for the country’s next parliamentary election, a critical condition for starting negotiations to join the European Union.
  6. The Government of Sri Lanka proposed increased presidential powers. Protests were held in the capital against the pro-president constitutional amendment.
  7. Nevada will hold a referendum to repeal the same-sex marriage ban from the state constitution.
  8. The President of Guinea seeks a third term despite opposition.
  9. Algeria parliament adopted constitutional reforms that will bring “radical change,” and broad debate on a complete revision of the Constitution will start in September.
  10. The President of Belarus addressed the possibility of holding a debate on early presidential elections, stating that such an election should go hand in hand with the planned amendment of the Constitution.
  11. A constitutional amendment motion failed in Thailand due to defections from the Democrat voting bloc.
  12. Expert discussions will be held in Ukraine concerning a constitutional amendment on decentralisation.

New Scholarship

  1. Richard Albert, Derek O’Brien, and Se-shauna Wheatle (eds), The Oxford Handbook of Caribbean Constitutions (2020) (providing a first-of-its-kind resource studying the operation of constitutional law across the entire Caribbean, embracing the linguistic, political, and cultural diversity of the region)
  2. Ulrich Stelkens and Agnė Andrijauskaitė (eds), Good Administration and the Council of Europe: Law, Principles, and Effectiveness (2020) (analyzing the sources and functions of European general principles of good administration)
  3. Ran Hirschl, City, State Constitutionalism and the Megacity (2020) (providing detailed, first-of-its-kind, comparative analysis of the constitutional status of cities across time and place)
  4. Bede Harrys, Constitutional Reform as a Remedy for Political Disenchantment in Australia: The Discussion We Need (2020) (examining the issues of public opinion on government conduct in Australia and the need for constitutional reform)
  5. Julius Yam, Approaching the Legitimacy Paradox in Hong Kong: Lessons for Hybrid Regime Courts, Law and Social Inquiry (2020) (drawing on the experiences of the Hong Kong courts to understand better the legitimacy paradox of court decision-making in hybrid regimes)

Calls for Papers and Announcements

  1. The International Forum on the Future of Constitutionalism welcomes submission for “The Global Summit,” to be held on January 12-16, 2021. The first of its kind summit will be both multilingual and multi-time zone, and it offers an opportunity for all-rank of scholars from all over the world to exchange ideas on all areas of constitutionalism. The deadline to submit a proposal for a paper or a fully-formed panel is 8 pm on October 1, 2020.
  2. The International Forum on the Future of Constitutionalism organizes a virtual roundtable on “Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court,” to be held on September 18.
  3. Registration is now open for an online seminar on “Democracy in our Digital Age,” featuring Jack Balkin, Kate Klonick, and Vivek Krishnamurthy, organized by the International Forum on the Future of Constitutionalism. The seminar will take place on September 25.
  4. The ICON-S Singapore Chapter organizes an online symposium on the subject “(UN)GENDERING PUBLIC LAW IN ASIA?,” to be held on September 23, 2020.
  5. Drake University Constitutional Law Center announced the 2020 Constitution Day Speaker, which will be Stephan Gardbaum. The Constitution Day Lecture will take place online, on the subject “The Counter-Playbook: Resisting the Populist Assault on Separation of Powers,” on September 17, 2020.
  6. Fifth Annual Melbourne Forum on Constitution-building in Asia and the Pacific is taking place online, every Thursday in September 2020.
  7. The Minerva Center for The Rule of Law Under Extreme Conditions invites submissions for the 4th Young Researchers Workshop on Terrorism and Belligerency on the topic of Human Enhancement and Advanced Technologies in Terrorism and Belligerencies. The workshop will take place from June 6-18, 2021. The deadline to submit an abstract is November 19, 2020.
  8. The Age of Human Rights Journal (TAHRJ) invites submissions for its June 2021 publication on the topic of Human Rights from Different Approaches. The deadline for submissions is February 1, 2021.
  9. The International Journal for the Semiotics of Law (IJSL) and Comparative Legilinguistics invite submissions on the topic “COVID-19 Infodemic – Between Law, Ethics and Fake News.” There will be two special issues for the International Journal for the Semiotics of Law and one special issue for the Comparative Legilinguistics journal. The deadline to submit an abstract is February 10, 2021.

Elsewhere Online

  1. Michael Keating, Back to the Unitary State?, Centre on Constitutional Change
  2. The Nixon pardon in constitutional retrospect, Constitution Center
  3. Jan Komárek, Political Economy in the European Constitutional Imaginary – Moving beyond Fiesole, Verfassungsblog
  4. Mathias Goldmann, Integrative Liberalism: A New Paradigm for the Law of Political Economy?, Verfassungsblog
  5. Joana Mendes, The Contingency of Governance in the EU, Verfassungsblog
  6. Cesare Pinelli, What Comes After Neoliberalism?, Verfassungsblog
Print Friendly, PDF & Email
Published on September 15, 2020
Author:          Filed under: Developments
 

Symposium | Introduction | Reducing the Size of the Italian Parliament: Lights and Shadows of a Controversial Constitutional Amendment


[Editor’s Note: I-CONnect is pleased to feature a four-part symposium on the upcoming Italian constitutional referendum on the reduction of members of the Parliament.  This symposium is organized by Antonia Baraggia, who has written today’s Introduction to the symposium.]


Antonia Baraggia, Assistant Professor of Comparative Law, University of Milan.

On 20 and 21 September, Italy will hold a referendum to confirm or reject a constitutional reform modifying articles 56, 57 and 59 of the Italian Constitution. The key aspect of the reform is to reduce the number of deputies from 630 to 400, and the number of senators from 315 to 200.

Read the rest of this entry…
Print Friendly, PDF & Email
Published on September 13, 2020
Author:          Filed under: Developments
 

Gay Priori: A Queer Critical Legal Studies Approach to Law Reform

[Editor’s Note: ICONnect is publishing a series of book reviews that recently ran in ICON (Volume 18, Issue 2: July 2020) on “Law and Gender in the Literature.”]

Libby Adler. Gay Priori: A Queer Critical Legal Studies Approach to Law Reform.  Duke University Press,  2018 (paperback). Pp.  288. $26.95. ISBN: 9780822371496.

Estefanía Vela Barba

International Journal of Constitutional Law, Volume 18, Issue 2, July 2020, Pages 654–658, https://doi.org/10.1093/icon/moaa043

https://academic.oup.com/icon/article/18/2/654/5880182

Gay Priori: A Queer Critical Legal Studies Approach to Law Reform, written by Northeastern University law professor Libby Adler, is a book focused on law reforms aimed at improving the lives of LGBT people in the United States (US). It first offers a critique of current dominant legal strategies, such as those focused on securing access to marriage, extending protections of antidiscrimination law, and punishing hate crimes. It then provides an explanation as to why LGBT law reform has prioritized these issues while neglecting others—especially those that affect the most marginalized within the LGBT population—including poverty and criminalization. And, finally, it provides an alternative framework for thinking about law and law reform that, in her view, “opens up new possibilities for real change” (at 9).

The book begins with an example to illustrate Adler’s concern with the path LGBT law reform took in the US. In 2010, she recalls, the US Supreme Court ruled on a case related to student organizations within the university context.[1] Concretely: a group called the Christian Legal Society had requested Hastings College of Law, part of the California University system, to be recognized as a student group, thus acquiring access to a variety of school resources. Their petition was denied because, per their bylaws, they wanted to exclude from affiliation anyone from a different religion as well as those who engaged in “unrepentant homosexual conduct.”[2] This, the university reasoned as grounds for denying their petition, violated the university’s “all-comers policy,” based on its non-discrimination policy.[3] The Christian Legal Society sued the university, claiming their First Amendment rights were violated. Hastings College of Law joined forces with one of the biggest LGBT organizations in the US for their defense and achieved a Supreme Court ruling in its favor.

Read the rest of this entry…
Print Friendly, PDF & Email
Published on September 11, 2020
Author:          Filed under: Reviews
 

Bureaucracy and Vulnerability in the (Digital) Administrative State

Sofia Ranchordas, University of Groningen

[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]

President Ronald Reagan famously said, “The nine scariest words in English are: “I’m from the Government and I’m here to help.” This statement, intended as a joke, translates a common and relatable sentiment of distrust vis-à-vis public authorities. When we initiate our students into the complex world of Administrative Law, Social Security Law or Local Law, we teach them that citizens are entitled to various public services. The right to register a newborn, get married or divorced, register a child at a local school, or, when in need, apply for social welfare benefits, connect citizens to public authorities on a regular basis. However, for those that turn to government the most, the reality is very different from the one we teach our students and Reagan’s joke may sound all too familiar. In practice, citizens face multiple bureaucratic hurdles when contacting governments, including the requirement to fill in dozens of forms, comply with overwhelmingly complex procedures, long waiting lists, not to mention incomprehensible language and procedures. Digital government was supposed to come to the rescue of citizens and ensure seamless government transactions. However, this is not yet what is happening.

As discussed in my previous columns, millions of citizens are still left behind because they do not have stable access to the Internet, or have limited literacy or digital skills. In this blogpost, I discuss digital exclusion in digital government by devoting attention not only to the technological perspective but also to the longstanding administrative system that enables and perpetuates it. While many believe that digital government would be ‘transformational’, digital government is not developed from scratch: digital government is still politically tainted, path-dependent, bureaucratic, reproducing or amplifying existing problems and biases of the administrative state. In other words, when digital technology meets traditional paper-based bureaucracy, the result is not always less bureaucracy. In many Western countries, a single parent may be entitled to a number of benefits. However, citizens do not always apply for the benefits they are entitled to because they are not well-informed, do not have the ability to do so independently, or do not have the time to fill in sometimes dozens of complex forms

Read the rest of this entry…
Print Friendly, PDF & Email
Published on September 9, 2020
Author:          Filed under: Analysis
 

What’s New in Public Law


Vini Singh, Assistant Professor & Doctoral Research Scholar, National Law University Jodhpur, 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. The Turkish Constitutional Court has unanimously concluded that the bombing by the military of two Turkish villages violated the right to life of the deceased, the wounded and their relatives.
  2. The European Court of Human Rights ruled against Slovakia and granted compensation to victims in a case of police brutality against Roma.  
  3. The Supreme Court of India directed the Centre, States and Union Territories to come up with a legislative and executive public health plan.
  4. The Supreme Court of Pakistan has directed the government and its agencies to desist from using terms such as “disabled”, “physically handicapped” and “mentally retarded” as they offend the dignity of persons.
  5. Ukraine’s Constitutional Court recognized certain lockdown restrictions as unconstitutional.
  6. The Supreme Court of India imposed a fine of Rs. 1 on Advocate Prashant Bhushan in contempt proceedings.
  7. The Supreme Court of New Zealand recognized that the right to justice outlives the individual.

In the News

  1. Young activists from Portugal sue 33 countries over climate change at the European Court of Human Rights.
  2. U.N. Human Rights experts raise concerns over Hong Kong security law.
  3. Plea seeking referendum on presidential form of government filed before Pakistani Supreme Court.
  4. The Indonesian Constitutional Court Law is set to be revised amidst civil society concerns regarding impartiality of the Court.
  5. PIL filed in the Supreme Court of India challenging the publication of marriage notices under the Special Marriage Act provisions as violative of the right to privacy and right to marry a partner of one’s choice.
  6. Sri Lankan government has gazetted the 20th Constitutional Amendment which reintroduces full legal immunity for the President.
  7. Germany urges EU action over poisoning of anti – corruption campaigner Alexei Navalny.

New Scholarship

  1. Giuliano Amato, Benedetta Barbisan and Cesare Pinelli (eds.), Rule of Law vs Majoritarian Democracy (2021) (examines the tension which arises between will of the people and rule of law when democratically elected regimes ignore constitutional principles.)
  2. Ulrich Haltern, The Constitution of the European Union: A Contextual Analysis (2021) (provides an overview of the Constitution of the European Union.)
  3. Madhav Khosla, India’s Founding Moment: The Constitution of a Most Surprising Democracy (2020) (explores how India’s Constitution came into being and instituted democracy after independence from British rule.)
  4. Alexander Tsesis, Free Speech in the Balance (2020) (challenges the categorical approach of the U.S. Supreme Court in free speech cases and discusses the application of proportionality in free speech theory.)
  5. Gabriel L. Negretto, Redrafting Constitutions in Democratic Regimes: Theoretical and Comparative Perspectives (2020) (examines the conditions such as erosion of democracy that lead to redrafting of a Constitution) 

Calls for Papers and Announcements

  1. The International Forum on the Future of Constitutionalism welcomes participants for “The Global Summit” to be held Jan 12-16, 2021. The first of its kind summit will be both multilingual and multi-time zone, and it offers an opportunity for all-ranks scholars from all over the world to exchange ideas on all areas of constitutionalism. The deadline to submit a proposal for a paper or a fully-formed panel is 8 pm (local time in Ottawa, Canada) on Oct 1, 2020.
  2. All are welcome to a roundtable discussion on the US Supreme Court appointments process on Friday, September 18.
  3. Registration is now open for Democracy in our Digital Age, featuring Jack Balkin, Kate Klonick, and Vivek Krishnamurthy.
  4. The International Review of Human Rights Law invites submissions for its sixth issue. The last date of submission is September 29, 2020
  5. The National Law School of India Review invites contributions for its forthcoming Volume 33 Issue 1. The deadline for submissions is October 30, 2020.
  6. The Centre for Ethics and Rule of Law at the University of Pennsylvania is going to hold a virtual book talk on How to Save a Constitutional Democracy by Tom Ginsburg and Aziz Huq. The talk will be held on 24 September 2020 at 12.00 pm Eastern time. Registrations will be open till 24 September 2020, 11.00 am Eastern Time.
  7. The International Journal of Discrimination and the Law invites submissions for a special issue entitled “COVID – 19: Lessons for and from Vulnerability Theory.” The deadline for submissions is October 31, 2020.
  8. The Participatory and Deliberative Democracy group invites proposals of full panels and individual papers for the PSA Conference: Resilience, Expertise, Hope, to be convened by Queen’s University Belfast  on 29 -31st March 2021. The proposals can be submitted by September 30, 2020.
  9. The Chinese University of Hong Kong invites chapters on the topic Constitutional Law in Greater China for a book to be published by Routledge in 2022. The deadline for submitting proposals is October 1, 2020.

Elsewhere Online

  1. Adam Chilton & Mila Versteeg, Three Trends in Constitutional Rights Protection, Summary, Judgment
  2. Adam Chilton & Mila Versteeg, Our Theory on How Rights Matter in a Nutshell, Summary, Judgment
  3. Adam Chilton & Mila Versteeg, The Methods we Used to Study the Effectiveness of Constitutional Rights, Summary, Judgment
  4. Adam Chilton & Mila Versteeg, Using Large-N Data to Examine the Effect of Constitutional Rights, Summary, Judgment
  5. Adam Chilton & Mila Versteeg, Turkey’s Wikipedia Ban and Popular Support for Violating Constitutional Rights, Summary, Judgment
  6. Adam Chilton & Mila Versteeg, What Constitutions Do: Unanswered Questions, Summary, Judgment
  7. Alisha Haridasani Gupta, Transgender People Face New Legal Fight After Supreme Court Victory, In Her Words, The New York Times.
  8. After Hogan resignation, EU and Ireland await new trade commissioner, Yale Macmillan Center.
  9. Abhinav Chandrachud, Sub – Classification in Reservations – II, Indconlawphil.
  10. Bizzare Judgment on the Call to Prayer is Wrong in Law and Rewards Religious Prejudice, Constitutionally Speaking.
  11. Reto Walther, Banana Republic Switzerland? Verfassungsblog.
  12. Ugandan Constitutional Law Judgment: Maternal Health is a Constitution Right, Reprohealthlaw Blog.
  13. Esteban Vallejo Toledo, Ecuador: IACtHR’s first ruling re sexual abuse and death of student, Reprohealthlaw Blog.
  14. Bernard M. Dickens, UK Supreme Court: Paid surrogacy abroad does not violate public policy, Reprohealthlaw Blog.  
Print Friendly, PDF & Email
Published on September 7, 2020
Author:          Filed under: Developments