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I·CONnect

Blog of the International Journal of Constitutional Law

Can There be Classics of Comparative Constitutional Law Theory?

Bryan Dennis G. Tiojanco, Project Associate Professor, University of Tokyo, Graduate Schools for Law and Politics. Twitter: @botiojanco

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

In a paper talk I gave late last month I got advice that had me thinking about the question above.

“Prioritize ideas as opposed to authors or even author’s books,” said the commenter.

The paper was both a response to Rosalind Dixon’s forthcoming book Responsive Judicial Review (RJR) and the beginnings of a comparative constitutional law theory inspired by my engagement with her ideas. Dixon considers RJR neo-Elyian because it updates John Hart Ely’s vision of courts as correctors of deficiencies in the democratic process. One of my arguments is that the book is also profoundly anti-Elyian because it advocates noninterpretivism, an approach to judicial review Ely had pointedly rejected. Naturally I dwelled on Ely’s works (prominently Democracy and Distrust[1]) as much as on RJR. But more than this, in developing my theory I discussed other books, including Montesquieu’s The Spirit of the Laws, Bruce Ackerman’s We the People 1, and Jack Balkin’s Living Originalism.

“I know that these are major theorists and you are responding to them,” acknowledged the commenter, but, again, “prioritize ideas as opposed to authors.”

Imagine if this comment had been given to an essay on political theory or analytical jurisprudence. Political theory routinely answers its central question ‘How can societies best govern themselves?’ by conversing with authors such as Machiavelli, Hobbes, Locke, and Rawls. Analytical jurisprudence, too, routinely answers its central question ‘What is Law?’ by conversing with authors such as Austin, Kelsen, Hart, and Dworkin. The response might be something like ‘These authors wrote classics in the field. Taking their thoughts seriously throws instructive light on the inquiry.’

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Published on March 17, 2022
Author:          Filed under: Analysis
 

What’s New in Public Law


– Irina Criveț, PhD Candidate in Public Law, Koç University


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 Constitutional Court of Ukraine initiated the termination of the membership of the Constitutional Courts of the Russian Federation and Belarus in the World Conference on Constitutional Justice. Consequently, the Constitutional Court of Russia announced it has withdrawn from the Conference of Constitutional Courts of Europe (CECC) as of March 5.
  2. The Polish Constitutional Tribunal found that European Convention on Human Rights is ‘incompatible’ with the Constitution.
  3. The Supreme Court of Canada will decide whether a Quebec law that forbids the growing of cannabis for personal use is in line with the constitution.
  4. The Colombian Constitutional Court recognized a non-binary gender marker.
  5. The Constitutional Court of Spain annulled many provisions of the Catalan rent cap law that came into effect in September 2020.

In the News

  1. EU heads of states and governments present in Versailles on the 10th of March 2022 support Ukraine in pursuing its European path.
  2. Justice Radwa Helmi became the first woman to sit on the bench of Egypt’s State Council, a top court in the country.
  3. The Council of Europe’s Committee of Ministers consulted with the Parliamentary Assembly on further measures to be taken under Article 8 of the Council of Europe’ Statute in response to the serious violations by the Russian Federation of its statutory obligations as a Member State.
  4. Chief Justice of the Rajasthan High Court Akil Kureshi retired Sunday ending a remarkable nearly two-decade-long career as a judge of a constitutional court.
  5. South African judge Raymond Zondo was appointed on Thursday as head of the Constitutional Court.
  6. Constitutional Court Justice Aldis Lavins was elected president of the Latvian Constitutional Court on Thursday.

New Scholarship

  1. George Tsebelis, Constitutional Rigidity Matters: A Veto Players Approach British Journal of Political Science 52(1) (2022) (explains why the lack of constitutional rigidity is a necessary but not sufficient condition for significant constitutional amendments in democratic countries)
  2. Jerg Gutmann, Roee Sarel and Stefan Voigt, Measuring Constitutional Loyalty: Evidence from the COVID-19 Pandemic ILE Working Paper Series, No. 55 (2022) (show that the citizens’ support for Covid-19 mitigation policies declines if courts signal doubts about their constitutionality and that effect of constitutional loyalty depends on citizens’ characteristics, such as their confidence in the courts and their moral convictions)
  3. Gauri Pillai, A Continuing Constitutional Conversation: Locating Nitisha International Journal of Discrimination and the Law 22 (1) (2022) (examines the role the Nitisha v Union of India had in India’s constitutional jurisprudence on non-discrimination) 
  4. Antonio-Martín Porras-Gómez, Constitutional bills of rights and democratic transformation in post-authoritarian scenarios, The International Journal of Human Rights (2022) (examines the relationship between bills of rights and democratic transformation processes in post-authoritarian settings)
  5. Guha Krishnamurthi, The Constitutional Right to Bench Trial, North Carolina Law Review, 100 (forthcoming 2022) (offers a comprehensive and multimodal argument that defendants have a constitutional right to bench trial)

Calls for Papers and Announcements

  1. Tel Aviv University announced the launch of the Emergency Fellowship Fund for Ukrainian Graduate Students. The application must be sent to Michal Linder at TAU International –Intlprojects@tauex.tau.ac.il including a 1-page (up to 500 words) statement describing the research, letter of recommendation from the advisor and a document showing active status at home university in Ukraine. The applications will be considered on a rolling basis effective immediately and until further notice.
  2. The Melbourne Law School issued a call for applications for postdoctoral fellows in International Law. The deadline for applications is 11 May 2022.
  3. The Research Centre for East European Studies (Forschungsstelle Osteuropa – FSO) at the University of Bremen launched the Hans Koschnick Special Scholarships For Researchers At Risk for researchers at risk from Ukraine and threatened researchers from Russia and Belarus.
  4. The Faculty of Law of UiT The Arctic University of Tromsø issued a call for proposals for the 2022 Critical Legal Conference. The theme of this year is LIMINALITIES. Please send your proposals to vito.delucia@uit.no.
  5. ICON-S Chapter Germany invites participants to the 2nd Conference that will take place on 15-16 September 2022 – Margins in/of Law – at Justus Liebig University, Giessen. The abstract (500-max. 1000 words) and a short CV (max. 2-3 pp.) must be sent to iconsdeutschland@gmail.com in German or English by April 15, 2022.

Elsewhere online

  1. Saeed Bagheri, Discredit to the Turkish Government Over the Social and Political Inequalities, Oxford Human Rights Hub
  2. João Alípio Correa, Autocratisation: the key to capturing today’s democratic difficulties, The Loop ECPR’s Political Science Blog
  3. Utkarsh Roy, The Constitutional Case Against EWS Reservations – Exploring the Principle of Reparative Justice under the Indian Constitution,  Indian Constitutional Law and Philosophy
  4. Jeff Sebo, Why does justice for animals matter?, OUPblog
  5. Geo Quinot, The Urgency of Procurement Reform after State Capture in South Africa, African Law Matters Blog
  6. Eliav Lieblich, Not Far Enough: The European Court of Human Rights’ Interim Measures, Just Security
  7. Elisa Chieregato, The first CJEU decision on domestic workers: the role of EU equality law in challenging unjustified exclusions from labour rights and social protections, European Law Blog
  8. South Korea’s populist turn, East Asia Forum
  9. Evghenii Ceban, The humanitarian crisis brewing on Ukraine’s border, Open Democracy
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Published on March 15, 2022
Author:          Filed under: Developments
 

ICON Volume 19, Issue 5: Editorial

Editorial: Germany v Italy: Jurisdictional Immunities—Redux (and Redux and Redux); 10 good reads; I•CON Thematic Reading Lists; Behind the scenes—Our Managing Editor; In this Issue

Germany v Italy: Jurisdictional Immunities—Redux (and Redux and Redux)

[J.H.H. Weiler’s Editorial was previously published on the ICONnect blog at the following link.]

10 good reads

[J.H.H. Weiler’s list of 10 good reads was previously published on the ICONNect blog at the following link.]

I•CON Thematic Reading Lists

We are instituting a new I•CON feature, which consists of thematic reading lists drawn from the articles, reviews and essays published in the Journal over the years. We begin with the fields of administrative law, democracy, environment, gender and migration. The lists will be made available online at https://academic.oup.com/icon and will be freely accessible. We hope readers will find these collections useful for teaching, research and other purposes, and will enjoy revisiting these works.

JHHW and GdeB

Behind the scenes—Our Managing Editor

When watching a memorable movie, we tend to focus on the actors, the director and the screenwriter. But those in the business will tell you that absent an effective and talented Production Manager, no manner of talent will save the movie. This is just as true for scholarly journals where the Managing Editor is the person who is constantly vigilant to make sure that all the pieces come together as they should, from submission to final print. I•CON and EJIL owe a huge debt to our wonderful Managing Editor, Anny Bremnerher professionalism, talent and dedication have more than once saved us from disasters big and small. Indeed, any imperfections in the Journal you may find are despite her and not because of her. You may be thinking, as you read this, that it is the customary thanks that ensue when someone is leaving a team. Perish the thought! We are looking forward to many more years in her capable hands. The reason for taking this opportunity to acknowledge her invaluable contribution to the Journal is to enable our readers to share our appreciation of the person who keeps the ship sailing so smoothly.

JHHW and GdeB

In this issue

The issue comprises a Symposium on Cultural Heritage, no less than three ICON: Debates!, and several individual articles and book reviews.

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Published on March 13, 2022
Author:          Filed under: Editorials
 

ICON Volume 19, Issue 5: Table of Contents

Volume 19 Issue 5

Table of Contents

Editorial: Germany v Italy: Jurisdictional Immunities—Redux (and Redux and Redux); 10 good reads; I•CON Thematic Reading Lists; Behind the scenes—Our Managing Editor; In this Issue

Honor Roll of Reviewers 2021

Articles

Tom Ginsburg and Mila Versteeg, The bound executive: Emergency powers during the pandemic

Ming-Sung Kuo, Whither judicial dialogue after convergence? Finding transnational public law in nomos-building

Ezequiel Gonzalez-Ocantos and Wayne Sandholtz, Constructing a regional human rights legal order: The Inter-American Court, national courts and judicial dialogue

Jan Podkowik, Robert Rybski and Marek Zubik, Judicial dialogue on data retention laws: A breakthrough for European constitutional courts?

Peter Szigeti, Comparative law at the heart of the immigration law: Criminal inadmissibility and conjugal immigration in Canada and the United States

Critical Review of Jurisprudence

Taís Penteado, The abortion jurisprudence in Brazil: An analysis of ADPF 54 from feminist equality-based perspectives

Symposium: Securing Cultural Heritage?

Felicia Caponigri, Lorenzo Casini and Sabino Cassese, Securing cultural heritage? Understanding the law for our monuments, artworks, and archives today

Elisa Bernard, Nationalism versus “identity pluralism”? Preserving and valorizing archaeological heritage

Felicia Caponigri, The Italo Balbo monument: A case study of identity and comparative public law

Anna Ghezzi, Filing the world: Archives as cultural heritage and the power of remembering

Anna Pirri Valentini, The role of cultural heritage policies in the definition of a national identity

Empirical Constitutional Scholarship: ICON: Debate!

Stefan Voigt, Mind the Gap: Analyzing the divergence between constitutional text and constitutional reality

Niels Petersen and Konstantin Chatziathanasiou, Empirical Research in Comparative Constitutional Law –the Cool Kid on the Block or all Smoke and Mirrors?

Zachary Elkins and Tom Ginsburg, On disruption and leximetrics: A response to Niels Petersen and Konstantin Chatziathanasiou

Adam Chilton and Mila Versteeg, Measurement and causal identification in constitutional law: A response to Niels Petersen and Konstantin Chatziathanasiou

Niels Petersen and Konstantin Chatziathanasiou, On the seductions of quantification: A rejoinder

ICON: Debate!

Ruiping Ye, Shifting meanings of fazhi and China’s journey toward socialist rule of law

Jerome A. Cohen, “Rule of law” with Chinese characteristics: Evolution and manipulation

Wen-Chen Chang, The limited function of law in transforming rule of law:  A reply to Ruiping Ye

ICON: Debate!

Emmett Macfarlane, Judicial amendment of the constitution

Kate Glover Berger, Judicial amendment and our constitutional lives

Erin F. Delaney and Christopher W. Schmidt, There’s something about Brown: A reply to Emmett Macfarlane

Book Reviews

Maria Moscati, Review of Alice Margaria. The Construction of Fatherhood. The Jurisprudence of the European Court of Human Rights

Pierfrancesco Rossi, Review of Odile Ammann. Domestic Courts and the Interpretation of International Law: Methods and Reasoning Based on the Swiss Example

Angelo Jr Golia, Review of Mariano Croce and Marco Goldoni. The Legacy of Pluralism. The Continental Jurisprudence of Santi Romano, Carl Schmitt, and Costantino Mortati

Zubair Abbasi, Review of Rachel M. Scott. Recasting Islamic Law: Religion and the Nation in Egyptian Constitution Making

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Published on March 10, 2022
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Review Essay: Nicholas Barber, The United Kingdom Constitution: An Introduction (Oxford, Clarendon Law, 2022)

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Stephen Tierney reviews Nicholas Barber’s book “The United Kingdom Constitution: An Introduction” (Oxford: Clarendon Law, 2022)


Stephen Tierney, Professor of Constitutional Theory, University of Edinburgh; Legal Adviser, House of Lords Constitution Committee

Nicholas Barber’s excellent new book is published at a time of great flux in the constitution of the United Kingdom. The book is wide ranging in its approach; it covers all of the main dimensions of the constitution in a relatively modest 360 pages, and it does so in a multi-layered approach that combines empirical exposition, doctrinal analysis, theoretical sophistication and carefully argued critical reflection.

General accounts of the UK constitution tend to fall into two camps: textbooks, of which there are numerous excellent examples, and shorter overviews which attempt to take the measure of the subject in a more discursive and less empirically-detailed way. An early example of the latter tradition is Colin Munro’s Studies in Constitutional Law; more recent accounts have been offered by Adam Tomkins in Public Law and Martin Loughlin in The British Constitution: A Very Short Introduction. Barber’s book is of this type but it is very much a distinctive contribution.

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Published on March 8, 2022
Author:          Filed under: Analysis
 

On March 8, Why Celebrate Feminist Constitutionalism?

Christine Peter da Silva, Associate Professor, Uniceub; Estefânia Maria de Queiroz Barboza, Professor, UFPR and Uninter; Marina Bonatto, Researcher at the Center for Studies of the Constitution, UFPR; and Melina Girardi Fachin, Professor, UFPR

The female universe is plural, complex and diverse. Feminist constitutionalism does not intend to reduce all inequalities and multiplicities in a single lens, but, regardless of these diverse features, there is a consensus that the burden for women is heavier.

Women live the reflections of the patriarchal society we inhabit. Law is a mirror of this society and therefore reproduces stereotypes and gender inequalities. But the same right that oppresses can also be an instrument for emancipation. For this reason, feminist constitutionalism relies on the powerful tools of constitutionalism to rescue its proposal (or better to say promise?) of equality.

And the reasons for this recognition are precisely the justifications that lead us to celebrate feminist constitutionalism on this day of women’s struggle, seeking to rethink the right from a gender perspective, whether at the time of its elaboration questioning the participation of women in the legislature and the impact that the laws cause on women, or compensating for these disproportionalities at the time of their interpretation and application by the Courts.

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Published on March 8, 2022
Author:          Filed under: Analysis
 

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 International Court of Justice is scheduled to hold hearings on the adoption of provisional measures against Russia on March 7 and 8
  2. The International Court of Justice Chief Prosecutor announced a probe into possible war crimes committed on Ukraine soil
  3. The European Court of Human Rights granted interim measures intimating Russia to refrain from military attacks against civilians and civilian objects
  4. A splintered United States Supreme Court reversed an appellate decision denying use of state secrets privilege against discovery requests of a now Guantánamo detainee that was subjected to “enhanced interrogation techniques”
  5. Georgia Constitutional Court refused to suspend controversial legislation dissolving independent authority monitoring state officials’ offenses
  6. Belgium’s Human Rights League appealed to the Constitutional Court to void pandemic law
  7. Israeli High Court of Justice ruled that four Palestinian families cannot be evicted until the Minister of Justice settles land ownership dispute
  8. The Constitutional Court of Colombia ruled that citizens should be able to have their gender registered as non-binary
  9. The Italian Constitutional Courts published the decisions thwarting referendums on civil liability of judges, consensual homicide, and soft drugs

In the News

  1. The UN General Assembly overwhelmingly voted to condemn Russia and demand that troops be pulled from Ukraine
  2. The Council of Europe suspended Russian Federation from its rights of representation in the Committee of Ministers and the Parliamentary Assembly as a result of Russia’s armed attack on Ukraine
  3. The European Commission published the Guidelines on the application of the conditionality regulation
  4. Turkish opposition parties coalesced in a bid to defeat President Tayyip Erdogan and restore rule of law
  5. After a new round of allegations against Guatemalan President anti-corruption prosecutors have either resigned, fled the country, or have been arrested
  6. Several legal organizations in South Africa urged the Judicial Service Commission to adopt a code of conduct and new appointment criteria before continuing its work
  7. President Joe Biden’s State of the Union speech addressed the situation in Ukraine, inflation, and pandemic economic recovery, invoking a “Unity Agenda for the nation”
  8. Hearings for Supreme Court nominee Judge Ketanji Brown Jackson are expected to start on March 21
  9. Iowa became the eleventh American State barring transgender athletes from female sports

New Scholarship

  1. Ramon Feldbrin and Barry Sullivan, The Supreme Court and the People: Communicating Decisions to the Public (2022) (claiming that US Supreme Court should take inspiration from other Constitutional Courts and make its decisions more accessible to the general public)
  2. Gary Lawson and Guy Seidman, Are People in Federal Territories Part of “We the People of the United States”? (forthcoming 2022) (discussing evidence on, and fiduciary implications of, including territorial inhabitants in the notion of “We the People of the United States”)
  3. Conor Casey and Adrian Vermeule, Myths of Common Good Constitutionalism (2022) (addressing misrepresentations of common good constitutionalism)
  4. Eoin Daly, Popular Sovereignty After Brexit (2022) (disputing the claim that lack of stronger “legal institutionalization” of popular sovereignty had a significant role in Brexit political crisis)
  5. Jan Komárek, Freedom and Power of European Constitutional Scholarship (2021) (addressing the interplay between legal scholarship as objective science and constitutional scholars’ political engagement, and the effects on academic freedom)
  6. Anne Carter, Proportionality and Facts in Constitutional Adjudication (2022) (discussing proportionality as a fact-finding test in comparative constitutional adjudication and particularly its use in Australian constitutional law) [Discount Price – use the code GLR A6AUK for UK orders and GLR A6AUS for US orders to get 20% off]
  7. Paolo Sandro, The Making of Constitutional Democracy. From Creation to Application of Law (2022) (defending the distinction between creation and application of the law and stressing its salience for constitutional democracy) [Discount Price – use the code GLR A6AUK for UK orders and GLR A6AUS for US orders to get 20% off]
  8. Laura Cahillane and David Kenny, Lessons from Ireland’s Judicial Conduct Controversy (forthcoming 2021) (describing the debate over judicial conduct in Ireland, the establishment of the Judicial Council Act and constitutional status of the golf-gate controversy)
  9. Katarína Šipulová, Samuel Spáč, David Kosař, Tereza Papoušková, and Viktor Derka, Judicial Self-Governance Index: Towards better understanding of the role of judges in governing the judiciary (2022) (proposing an innovative index for measuring judicial self-governance and claiming that the judicial council model is not a necessary avenue to judicial empowerment)

Calls for Papers and Announcements

  1. The Max Planck Foundation for International Peace and Rule of Law calls for submissions for articles to be published in Volume 26 of the Max Planck Yearbook of United Nations Law (UNYB). Abstract deadline is April 15, 2022.
  2. The International Association of Constitutional Law invites submissions for the conference “Political Sentiments and Moral Emotions in Constitutional Law” to be held at the Facultad de Derecho UNC in Cordoba (Argentina) on August 9-10, 2022. Abstract Deadline on May 1, 2022.
  3. The International Association of Constitutional Law invites abstracts for its second online Junior Scholars Forum to be hosted at the UNAM Institute for Legal Research and the uOttawa Public Law Centre on September 8, 9, 12, 13, 14, 2022. Submission is due by April 1, 2022.
  4. The Institute for Comparative Federalism at EURAC Research (South Tyrol) invites applications to a full-time researcher position. Interested candidates should submit their applications by March 20, 2022.
  5. The Institute for Comparative Federalism is going to host an online “Marie Skłodowska-Curie Week” from May 23 to 27, 2022. Prospective applicants for an MSCA Postdoctoral Fellowship at EURAC Research will be accompanied in shaping their fellowship proposal. The application deadline is April 3, 2022.
  6. ICON-S Italian chapter calls for papers and panels for its annual meeting to be held in Bologna on September 16-17, 2022. This year theme is “The Future of the State.” Abstracts are due by June 1, 2022.
  7. Registration is now open for the International Forum on the Future of Constitutionalism’s Advanced Research Seminar in Constitutional Change.
  8. Oxford Programme in Asian Laws announced a workshop on “Political Parties & Constitutions in Asia” to be held in Oxford on September 23-24, 2022. Paper proposals should be submitted by April 1, 2022.
  9. By April 1, 2022, IPSA Comparative Judicial Studies Committee will publish its draft program for the conference “Courts under Pressure: Threats to Judicial Independence and Rule of Law across the Globe” to be held at the Mortara Center for International Studies (Georgetown University) on August 10-12, 2022.
  10. The Italian Association of Constitutionalists (AIC) issued a statement condemning the war in Ukraine.
  11. On behalf of the German Society of International Law Prof. Dr. Anne Peters published a statement decrying Russia’s violation of international law.

Elsewhere Online

  1. Päivi Leino-Sandberg and Hanna Ojanen, Time for Military Integration in the EU?: Armed aggression and the scope of Article 42 TEU, Verfassungsblog
  2. Ralph Janik, Putin’s War against Ukraine: Mocking International Law, EJIL: Talk!
  3. Oona Hathaway, Scott Shapiro,  Putin Can’t Destroy the International Order by Himself, Lawfare
  4. Michael Ramsey, Using Force in Ukraine Requires Congress’ Approval, Originalism Blog
  5. Andrew Koppelman, Ketanji Brown Jackson and the job of a public defender, The Hill
  6. Jonathan H. Adler, When Ketanji Brown Jackson Represented the Cato Institute, The Volokh Conspiracy
  7. Eric Segall, Of Originalism, Political Polarization, Tolerance, and the Importance of Talking to the Other Side, Dorf On Law
  8. Diana Dimitrova, Ekimdzhiev and others v. Bulgaria: Secret Surveillance and Electronic Communications Surveillance only with Adequate Safeguards, or Nothing New under the Sun, Strasbourg Observer
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Published on March 7, 2022
Author:          Filed under: Developments
 

An Invitation | Statement in Support of People of Ukraine


Richard Albert, Professor of World Constitutions and Director of Constitutional Studies, The University of Texas at Austin


A Statement in Support of the People of Ukraine has been issued for any member of ICON-S to endorse in her/his/their personal capacity. Signatures may be added here.

Thank you to Professor Phoebe Okowa for drafting the Statement and to Professor Ruth Rubio Marín for her counsel.

Please note that ICON-S takes no institutional position.

***

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Published on March 6, 2022
Author:          Filed under: Developments
 

What’s New in Public Law


Robert Rybski, Assistant Professor at the Faculty of Law and Administration of the University of Warsaw, Rector’s Plenipotentiary for Environment and Sustainable Development.


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 Court of Justice of the European Union ordered Poland to pay the European Commission a daily penalty of one million EUR for each day of further functioning of the Disciplinary Chamber of the Supreme Court.
  2. Colombia’s Constitutional Court voted 5-4 to decriminalize abortions in the first 24 weeks of pregnancy.
  3. The Acting Head of Ukraine’s Constitutional Court rejected the adoption of any possible new Constitution.
  4. The Constitutional Court of the Republic of Kosovo issued a ruling in which it stated the violation of due process in regards to granting feed-in tariff for generation of electricity from renewable energy sources.
  5. The German Federal Constitutional Court published its annual report with its 70th anniversary as a leitmotiv.

In the News

  1. Russia invaded Ukraine on the 24th of February 2022.
  2. State leaders condemned the Russian invasion as a breach of international law and a grave breach of the United Nations Charter.
  3. China rejected to determine Russia’s ‘special military operation’ as an invasion on Ukraine.
  4. Alabama lawmakers seek to remove racist language from the state’s 121-year-old Constitution.
  5. A Committee within Chile’s Constitutional Convention greenlighted a proposal to grant sexual and reproductive rights in the country’s new Constitution.
  6. The Venice Commission criticized constitutional amendment which will be submitted to referendum on 27 February 2022.

New Scholarship

  1. Jan Podkowik, Robert Rybski & Marek Zubik, Judicial dialogue on data retention laws: A breakthrough for European constitutional courts?, International Journal of Constitutional Law vol. 19, issue 5 (2021) (providing a comparative analysis of over a dozen of European constitutional courts that ruled on the same piece of European Union’s legislation that introduced a measure of mass invigilation)
  2. David Kosar& Ladislav Vyhnánek, The Constitution of Czechia. A Contextual Analysis (2021) (providing a contextual and authoritative overview of the principles, doctrines and institutions that underpin the Czech constitution)
  3. W. Gregory Voss, Transatlantic Data Transfer Compliance, forthcoming 28 Journal of Science & Technology Law (2022) (examines challenges in regards to transatlantic data transfer post-Schrems II)
  4. Tom Ginsburg & Mila Versteeg, The bound executive: Emergency powers during the pandemic, International Journal of Constitutional Law vol. 19, issue 5 (2021) (presenting how courts, legislatures and subnational governments constrained national executives within their execution of emergency powers)
  5. Pasquale Viola, From the Principles of International Environmental Law to Environmental Constitutionalism: Competetitive or Cooperative Influences?, Routledge (2022) (discusses whether domestic constitutional law could be considered as the most suitable legal arena for both theoretical and pragmatic responses to environmental concerns)
  6. Péter D Szigeti, Comparative law at the heart of immigration law: Criminal inadmissibility and conjugal immigration in Canada and the United States, International Journal of Constitutional Law vol. 19, issue 5 (2021) (analysing the comparative methods used in North American immigration laws since the 1880s, for evaluating criminal records and intimate partnerships)

Calls for Papers and Announcements

  1. Academy for European Human Rights Protection at the University of Cologne invites submissions of abstracts for Young Researchers’ Workshop, 14-15 September 2022. Organizers welcome submissions on future-oriented research questions such as the impact of technological developments on human rights, the idea of developing “non-human” human rights in connection with harm to the environment and climate change, human rights as a remedy against populism, potential further human-rights problems in the area of communication, potential East-West or North-South cleavages as well as questions about the future of the protection mechanisms that are currently in place. Post-doctoral and doctoral researchers should submit their abstracts by the 30th of April 2022.
  2. The British Irish Chapter of ICON-S invites submissions of papers and panels for an online conference to be held 26-28 April, titled ‘The Constitutional Architecture of these Islands’. The submission deadline has been extended to Friday 4 March.
  3. The European Constitutional Law Review invites proposals for a special section to be published in one of the 2023 issues for a set of interesting articles on a topic of European constitutional law produced within a research project or conference. The deadline for submissions is by 1 September 2022.
  4. The International Center for Ethno-Religious Mediation (ICERM), New York, organizes its annual conference 2022 International Conference on Ethnic and Religious Conflict Resolution and Peacebuilding, 28-29 September 2022. Organizers will consider submissions from multidisciplinary fields of study and practice on ethnic, racial and religious conflicts in countries around the world. The deadline for abstract submissions is 18 April 2022.
  5. The Asia-Pacific Journal of International Humanitarian Law calls for papers to its 2022 Edition. Submission of articles should touch upon subjects related to international humanitarian law, humanitarian policy or humanitarian action. The Journal accepts papers on a rolling basis.

Elsewhere Online

  1. Alex Putzer & Laura Burgers, European Rights of Nature Initiatives, IACL-Blog
  2. Antonio Di Marco, Neutrality of the Olympic Movement and Freedom of Expression, Verfassungsblog
  3. Başak Ekinci, Opposition Alliance in Turkey: Can it Restore Democracy?, IACL-Blog
  4. Cem Abanazir, The Court of Arbitration for Sport’s Multifarious Views on Freedom of Expression, Verfassungsblog
  5. Yaffa Epstein, Does the Earth Need More Legal People?, IACL-Blog
  6. Pierre de Vos, Why context matters: Constitutional Court leave the hate speech threshold open to judges’ interpretation, Constitutionally Speaking
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Published on March 1, 2022
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Mandatory Vaccination is not an Assault to Freedom: A Plea for Mandatory Covid-19 Vaccination in Germany

Felipe Oliveira de Sousa, Center for Law, Behaviour and Cognition (CLBC), Ruhr-Universität Bochum

The German Bundestag has recently opened discussions about the adoption of a general mandatory vaccination requirement for Covid-19 (Allgemeine Impfpflicht) in Germany. Whereas some voices argue that it would be disproportionate and lead to a strong interference in the fundamental rights of the unvaccinated, other voices hold an opposing position. In what follows, I offer some reasons for why such requirement may be constitutionally justified, and raise questions in relation to its practical implementation.

Preliminary case

Even though many people presume that vaccination requirements are unethical or violate human rights, the right to health and its correlated duties provide a prima facie justification for their imposition. The fundamental right to life and to health protection are recognised both in the German Basic Law and in a number of international treaties to which Germany is a signatory part (such as ECHR). Though there are good reasons to be concerned with the social division that the adoption of a vaccination requirement for COVID-19 would cause in the German population, such a requirement does not constitute in principle a violation to any fundamental right. It is, for instance, a generally suitable means to promote the goal of health protection. The various measures that have been used so far – free vaccination campaigns, negative incentives to the unvaccinated (e.g. the 2G-rule) – have not been sufficient to achieve a higher vaccination rate. Because such a requirement would interfere in the fundamental rights of the unvaccinated, a justification must be provided for its adoption and for why it can be considered proportionate.

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Published on February 27, 2022
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