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Blog of the International Journal of Constitutional Law and ConstitutionMaking.org

2017 ICON-S Annual Mega-Conference Begins Today!

Richard Albert, Boston College Law School

The 2017 ICON-S annual mega-conference begins today in Copenhagen, hosted by the University of Copenhagen’s Faculty of Law and iCourts – the Danish National Research Foundation’s Center for Excellence on International Courts. The theme for the program is “Courts, Power, and Public Law.” The conference runs July 5-7, 2017.

As in previous years, this edition of the ICON-S conference features plenary panels and hundreds of concurrent panels. An outline of the program is pasted below. Full details about the program are available here.

Congratulations and good luck to the hosts and organizers, and welcome to all to this year’s edition of the ICON-S conference!


Program Outline

Wednesday, July 5, 2017

13h00 – 16h00
Radisson Blu Scandinavia Hotel

Opening Remarks

Professor Gráinne de Búrca, NYU
Co-President, ICON-S

Professor Mikael Rask Madsen
Director of iCourts, University of Copenhagen

Keynote Address

Professor Bryan Stevenson
Equal Justice Initiative/NYU

Plenary Panel I: Global Economic Injustice

Professor Bhupinder Chimni
Jawaharlal Nehru University, Delhi

Professor Katharina Pistor
Columbia Law School

Professor Joseph H.H. Weiler
NYU

Moderator: Professor Erika De Wet, University of Pretoria

17h00 – 18h30
Faculty of Law – University of Copenhagen

Parallel Panels Session I

18h30

Cocktail reception

Thursday, July 6, 2017

9h00 – 10h30
Faculty of Law – University of Copenhagen

Parallel Panels Session II

11h00 – 12h30 

Parallel Panels Session III

14h00 – 15h30

Plenary Panel II: High Courts and Political Power: A Conversation with Three Prominent Jurists

Chief Justice Beverley McLachlin
Supreme Court of Canada

Justice Marta Cartabia
Vice President of the Constitutional Court of Italy

Judge András Sajó
Central European University

Moderator: Professor Ran Hirschl, University of Toronto

16h00 – 17h30 p.m.

Parallel Panels Session IV

Friday, July 7, 2017

9h00 – 10h30
Faculty of Law – University of Copenhagen

Parallel Panels Session V

10h45 – 12h15 

Parallel Panels Session VI

12h30 – 14h00

Plenary Panel III: International Courts in the 21st Century

President Silvia Fernández de Gurmendi
International Criminal Court (ICC)

Shaheed Fatima
Senior Counsel, UK

Professor Mikael Rask Madsen
University of Copenhagen

Moderator: Professor Phoebe Okowa, Queen Mary

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Published on July 5, 2017
Author:          Filed under: Developments
 

ICON’s Current Issue (Table of Contents)

 Volume 15 Issue 2

 Table of Contents

Editorial

Introduction

Rodrigo Álvarez. The times they are a-changin’ . . .: Challenges in Latin America

Articles

Daniel Brinks and Abby Blass, Rethinking judicial empowerment: The new foundations of constitutional justice

Juliano Zaiden Benvindo, The forgotten people in Brazilian constitutionalism: Revisiting strategic behavior analyses of regime transitions

Symposium: Democracy and Regional Human Rights Courts: Enemies, Allies, or Both?

Andreas Follesdal, Democracy and Regional Human Rights Courts: An Introduction

Andreas Follesdal, Exporting the margin of appreciation: Lessons for the Inter-American Court of Human Rights

Leiry Cornejo Chavez, New remedial responses in the practice of regional human rights courts: Purposes beyond compensation

Marisa Iglesias Vila, Subsidiarity, margin of appreciation and international adjudication from a cooperative conception of human rights

I.CON: Debate!

Jorge Contesse, The final word? Constitutional dialogue and the Inter-American Court of Human Rights

Paolo G. Carozza and Pablo González, The final word? Constitutional dialogue and the Inter-American Court of Human Rights: A Reply to Jorge Contesse

Jorge Contesse, The final word? Constitutional dialogue and the Inter-American Court of Human Rights: A rejoinder to Paolo Carozza and Pablo González

Critical Review of Governance

Jorge González-Jácome, From abusive constitutionalism to a multilayered understanding of constitutionalism. Lessons from Latin America

Sergio Verdugo, Birth and decay of the Chilean Constitutional Tribunal (1970-1973). The irony of a wrong electoral prediction

Critical Review of Jurisprudence

Luis Roberto Barroso, Juliano Zaiden Benvindo and Aline Osorio, Developments in Brazilian constitutional law: The year 2016 in review

Derek O’Brien, Developments in the Commonwealth Caribbean: The year 2016 in review

Book Reviews

Diana Kapiszewski, High Courts and Economic Governance in Argentina and Brazil (Paula Gorzoni)

Marcus André Melo & Carlos Pereira. Making Brazil Work: Checking the President in a Multiparty System (Virgílio Afonso da Silva)

Adriana Vidal de Oliveira. Constituição e Direito das Mulheres: Uma Análise dos Esterótipos de Gênero na Assembleia Constituinte e suas consequências no Texto Constitucional (Marcia Nina Bernardes)

Thamy Pogrebinschi, Judicialização ou representação?: Política, direito e democracia no Brasil (Monaliza O. da Silva)

Alberto F. Garay. La doctrina del precedente en la Corte Suprema (Santiago Legarre)

Santiago Legarre. Obligatoriedad atenuada de la jurisprudencia de la Corte Suprema de Justicia de la Nación (Alberto B. Bianchi)

Marcial Antonio Rubio Correa. El Test de Proporcionalidad en la Jurisprudencia del Tribunal Constitucional Peruano (Maria Bertel)

César Rodríguez Garavito y Diana Rodríguez Franco. Cortes y Cambio Social. Cómo la Corte Constitucional Transformó el Desplazamiento Forzado en Colombia; César Rodríguez-Garavito and Diana Rodríguez-Franco. Radical Deprivation on Trial. The Impact of Judicial Activism on Socioeconomic Rights in the Global South (Julio Ríos-Figueroa)

Diego E. López-Medina. Eslabones del Derecho; Diego E. López-Medina. El Derecho de los Jueces (Vicente F. Benítez-R.)

Andrea Castagnola & Saul Lopez Noriega (eds.). Judicial Politics in Mexico: The Supreme Court and the Transition to Democracy (Mariana Velasco Rivera)

Patricio Zapata Larraín. La casa de todos. La Nueva Constitución que Chile merece y necesita (José Manuel Díaz de Valdés J.)

Roberto Gargarella, The Legal Foundations of Inequality: Constitutionalism in the Americas, 1776–1860 (Joel Colón-Ríos)

Jeffrey Davis. Seeking Human Rights Justice in Latin America. Truth, Extra-Territorial Courts, and the Process of Justice (Marcela Prieto R.)

Daniel Bonilla Maldonado (ed.). Constitutionalism of the Global South (Roberto Gargarella)

Roberto Gargarella. Castigar al Prójimo. Por una Refundación Democrática del Derecho Penal (Rocío Lorca Ferreccio)

Fernando Atria. La Forma del Derecho (Martín Hevia and Felipe Jiménez)

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Published on July 4, 2017
Author:          Filed under: Editorials
 

Reminder–I-CONnect Happy Hour at ICON-S in Copenhagen–Thursday, July 6, 6pm-7pm at Llama

Tom Ginsburg, David Landau and Richard Albert invite friends of I-CONnect to a happy hour at the ICON-S 2017 Conference in Copenhagen.

All are welcome on Thursday, July 6, from 6:00pm to 7:00pm at Llama, located at Lille Kongensgade 14 1074 København K, within close walking distance from the University of Copenhagen where ICON-S will be held.

The I-CONnect co-editors look forward to seeing you there!

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Published on July 4, 2017
Author:          Filed under: Developments
 

What’s New in Public Law

Maja Sahadžić, Ph.D. Researcher (University of Antwerp)

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The Supreme Court of Canada upheld a judgment that directs Google to block a company’s website from its global search results.
  2. The Constitutional Court of Egypt suspended all previous court orders concerning the Red Sea Islands agreement.
  3. The South African Constitutional Court struck down sections of the Immigration Act, which allowed for immigrants to be detained without a court hearing.
  4. The US Supreme Court partially reinstated the president’s travel order.
  5. The Turkish Constitutional Court denied hunger strikers’ demand to be released from jail and rejected the application for partial annulment of the Press Law article which regulates the obligation of publishers to publish corrections and reply texts.
  6. The Constitutional Court in Romania outlined cases where convicts can become government members.
  7. The Austrian Constitutional Court overturned a ban on construction of Vienna Airport’s third runway and upheld the government action to seize the apartment complex in which Hitler was born.
  8. The High Court in Georgia ruled that the state cannot be sued over the Abortion Law without its consent, but that state officials can be sued as individuals to prevent them from enforcing laws alleged to violate the state Constitution.

In the News

  1. The German Parliament voted to legalize same-sex marriage.
  2. The President of Ukraine called on Rada MPs to vote for the constitutional amendments on the abolition of parliamentary immunity.
  3. The Referendum Council in Australia is set to deliver a final report suggesting the recognition of indigenous Australians in the constitution.
  4. The National Assembly of Nigeria proposed a constitutional amendment to restructure judiciary.
  5. The Japanese PM Shinzo Abe accelerated the agenda to amend the pacifist Constitution.
  6. The Parliament of Czech Republic voted to legalize firearm ownership against the European Union gun control rules.
  7. The President of Georgia opposes a new draft Constitution because it was not based on a consensus.
  8. The first amendment to the 2013 Constitution of Zimbabwe reached a voting stage.
  9. The National Human Rights Commission of Korea proposed to expand the category of basic rights from “citizens” to “people.”
  10. Kenya’s opposition alliance proposed amendments to the Constitution that would provide for a hybrid executive system.
  11. The Northern Ireland Human Rights Commission was granted a leave to challenge the abortion case before the Supreme Court.
  12. The Supreme Court in Venezuela was attacked. A helicopter dropped grenades on the building and fired shots at the Interior Ministry.

New Scholarship

  1. Valentina Rita Scotti, On the pro-hegemonic nature of referenda for constitutional reforms in Turkey: A focus on 16 April 2017 referendum introducing presidentialism, Osservatorio Costituzionale (2017) (examining the 2017 referendum on constitutional amendments in Turkey as a pro-hegemonic device)
  2. Rangita de Silva de Alwis, Anware Mnasri, and Estee Ward, Women and the Making of the Tunisian Constitution, 35 Berkeley Journal of International Law (2017) (analyzing women’s engagement in Tunisia’s constitution-making process)
  3. Stéphanie De Somer, Autonomous Public Bodies and the Law, A European Perspective (2017) (discussing the impact of EU law on the autonomous public bodies and recent attempts of European states to rationalize delegation to APBs)
  4. Gábor Halmai, Second-Grade Constitutionalism? The Cases of Hungary and Poland (2017) (exploring variations in the application of the EU shared values of rule of law and democracy in Hungary and Poland)
  5. Alexander Tsesis, Constitutional Ethos, Liberal Equality for the Common Good (2017) (developing a unique theory of constitutional law structured on the public duty to protect individual rights for the general welfare).
  6. Chintan Chandrachud, Balanced Constitutionalism Courts and Legislatures in India and the United Kingdom (2017) (comparing judicial review under the Indian Constitution and the UK Human Rights Act)

Call for Papers and Announcements

  1. The Humboldt University of Berlin organizes the international conference “The Global South in Comparative Constitutional Law,” in Berlin, on July 13-14, 2017.
  2. Cornell Law School organizes the 12th Annual Conference on Empirical Legal Studies in Ithaca on October 13-14, 2017.
  3. The Asian Journal of Comparative Law welcomes submission for its 2018 issue.
  4. The University of Illinois College of Law, the University of Bologna School of Law, and the Center for Constitutional Studies and Democratic Development welcome paper proposals for the Third Annual Illinois-Bologna conference on “Constitutional History: Comparative Perspectives” in Bologna, November 13-14, 2017.
  5. Azores University invites submissions for the Second International Conference on Election and Democracy under the theme “Develop and Protect Humanity,” in Ponta Delgada, on October 27, 2017. The deadline for full paper submission is due by August 15, 2017.
  6. Faculty of Shariah and Law of the State Islamic University invites applications for the International Conference on “Law and Justice, Good Governance and Human Rights in Muslim Countries, Experiences and Challenges,” in Jakarta, on November 7-8, 2017. The submission deadline is July 31, 2017.
  7. The Government of Canada invites applications for the Vanier Canada Graduate Scholarships to highly motivated and competitive doctoral students. The submission deadline is November 1, 2017.
  8. Melbourne Law School welcomes applications for two Ph.D. scholarships for the Australian Laureate Fellowship Program in Comparative Constitutional Law. The submission deadline is July 9, 2017.
  9. The SJD Society at Emory University School of Law invites abstracts for its Annual Graduate Student Conference on “Populism and the Rule of Law,” in Atlanta, on October 12-13, 2017. The submission deadline is July 15, 2017.
  10. Alexander von Humboldt Foundation invites applications for the Humboldt Research Fellowship for Postdoctoral Researchers.
  11. The Politics Department at the University of California, Santa Cruz invites applications for a tenure-track Assistant Professor position in Political Theory. The submission deadline is September 29, 2017.
  12. The University of Leicester welcomes applications for a Lecturer in Law position. The submission deadline is July 5, 2017.

Elsewhere Online

  1. Michael Keating, The nation-state is dead. Long live the nation-state, Academia
  2. Munkhsaikhan Odonkhuu, Mongolia’s (flawed) experiment with deliberative polling in constitutional reform, ConstitutionNet
  3. Gerhard van der Schyff, One year after the Brexit Referendum: More, Fewer or No Referendums in Europe?, Verfassungsblog
  4. Byron Karemba, Provision of Abortion Services, the Territorial Constitution and the Supreme Court, UK Constitutional Law Association
  5. Adam Liptak, A Cautious Supreme Court Sets a Modern Record for Consensus, New York Times
  6. Nomfundo Ramalekana, Balancing the Scales in Eviction Cases in South Africa: A Note on Occupiers of erven 87 & 88 Berea v Christiaan Frederick De Wet, OxHRH
  7. Feroze Varun Gandhi, For a more representative House, The Hindu
  8. Ken Lukyamuzi, Uganda: We Should Resist Periodic Constitutional Amendments, The Monitor
  9. Cathy Buckle, Who will guard the guards in Zim’s fraught Constitution, Biz News
  10. Situ Aung Myint, The contentious issue of non-secession need not be an obstacle to a final agreement to emerge from the Union peace conferences, Frontier
  11. Mei-Hua Chen, An incomplete equality: Taiwan moves to legalize same-sex marriage, Asia & Pacific Policy Society
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Published on July 3, 2017
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Special Announcement–Rivista di Diritti Comparati: A Brand New Journal

–Andrea Buratti, Giuseppe Martinico, Oreste Pollicino, Giorgio Repetto and Raffaele Torino, Editors-in-Chief

The first issue of the brand-new journal “Rivista di Diritti Comparati” is on line and can be downloaded at this link.

The Rivista has been launched in the wake of the success of the blog diritticomparati.it, which was created in 2010. The roots and aims of this blog have been described in a long interview published on Verfassungsblog.

In the last few years, Diritti Comparati has published over 1000 posts, reviewing the main evolutions not only in Europe but also in the United States, the Arab jurisdictions and Latin America.

In spite of its relative youth, the life of Diritti Comparati has been marked by a number of complex and cumbersome events. Meanwhile, our purpose has not changed: to hold fast to the early scientific and cultural inspiration of our project, which has served as a meeting point for many young (but not exclusively so) legal scholars with different backgrounds.

All these goals nurture legal scholarship and urge it to reckon with a rapidly evolving scene. This has always been the common ground among the young researchers who have participated in the editorial staff and, over the years, have contributed to this blog: they have submitted draft articles and early notes, but also detailed and rich analyses and high-level studies.

The Rivista di Diritti Comparati has just published some contributions and can be consulted in the form both of individual articles and of four-monthly issues. The Rivista will publish contributions in Italian, English, Spanish and French in order to reflect the multilingualism which has characterised Diritti Comparati over the years. Editorial guidelines and further details are available here.

Our common purpose, which has not changed in its core, is to study the culture of fundamental rights and its transformations in a comparative perspective. In so doing, we focus on legal regulations, case laws, policies, national and supranational history, Italian and non-Italian scholarly works. We aim at departing from rigid methodological barriers in order to overcome the compartimentalisation of research and to favour an open dialogue among scholars with different academic and generational backgrounds. We stick to the idea that in this field the understanding of legal phenomena and our world is at stake. These are the reasons for our renovated effort.

The first issue gathers contributions from established and young scholars and is articulated in three main sections (essays, commentaries and book reviews/review articles), covering different subjects

We welcome submissions from non-Italian and Italian scholars alike.

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Published on July 3, 2017
Author:          Filed under: Developments
 

Virtual Bookshelf: The Transformative Constitutionalism of the Colombian Constitutional Court–A Review of “Colombian Constitutional Law” by Manuel José Cepeda Espinosa and David Landau

Richard Albert, Boston College Law School

As important as it is for scholars of comparative public law to read more than one language, English remains the lingua franca in the field. As a consequence, court judgments published only in the local language and not translated into English rarely enter the global dialogue among judges and scholars–or they do so by happenstance or only with great difficulty.

The now-common practice of cross-national borrowing and citation is therefore deprived of the richness of public law developments in countries whose constitutional case law remains unavailable in English.

In their new book entitled Colombian Constitutional Law: Leading Cases (Oxford University Press 2017), Manuel José Cepeda Espinosa and David Landau introduce the English-speaking world to the case law of the Colombian Constitutional Court. This is the first-ever English textbook on Colombian constitutional law–an important resource that includes translations of the most important judgments of the Constitutional Court. Their carefully crafted book invites scholars and students of public law to engage meaningfully with the history and case law of an influential but until only recently understudied court of the global south in a way that was not previously possible.

The purpose of their book is “give readers a sense of the Court’s major doctrinal contributions” so that we as scholars of comparative public law can take the Court’s experiences into consideration when we engage in our comparisons.

Part I of the book details seminal decisions in which the Court asserted and defined its role within the constitutional order. Part II acquaints readers with the Court’s jurisprudential posture on a wide range of rights controversies. Part III situates the Court within the structure of separated powers established by the Constitution. Finally, Part IV offers deep insight into the Court’s doctrinal innovations.  

What becomes evident from a close reading of Cepeda and Landau’s book is that the idea of transformative constitutionalism forms part of the DNA of Colombia’s Constitutional Court and of its Constitution.

For English speakers in search of an immersive account of constitutional developments in Colombia, and for scholars of comparative public law interested in enriching their perspective on the forms and possibilities of public law, this book is a timely and essential case study of an as-yet under-examined constitution and constitutional court.

Suggested Citation: Richard Albert, Book Review, The Transformative Constitutionalism of the Colombian Constitutional Court–A Review of “Colombian Constitutional Law” by Manuel José Cepeda Espinosa and David Landau, July 2, 2017, at: http://www.iconnectblog.com/2017/07/virtual-bookshelf-the-transformative-constitutionalism-of-the-colombian-constitutional-court-a-review-of-colombian-constitutional-law-by-manuel-jose-cepeda-espinosa-and-david-landau

 

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Published on July 2, 2017
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Five Questions with Lorenzo Casini

Richard Albert, Boston College Law School

In “Five Questions with … ” here at I-CONnect, we invite a public law scholar to answer five questions about his or her research.

This edition of “Five Questions with … ” features Lorenzo Casini, Full Professor of Administrative Law at IMT School for Advanced Studies, Lucca. He is also Secretary General of the International Society of Public (ICON-S). His full bio follows below:

Lorenzo Casini (b. 1976) is Full Professor of Administrative Law at IMT School for Advanced Studies of Lucca (Italy). After graduating in Law cum laude (1999), he obtained a Ph.D. in European and Comparative Administrative Law from the University of Rome “Sapienza(2004). Since 2008 he has been involved in the Global Administrative Law Project at the New York University School of Law (where he has been Hauser Global Research Fellow in 2008-2009 and Hauser and Mauro Cappelletti Global Fellow in 2013). Since 2014 he has been working as legal counsel to the Italian Minister for Cultural Heritage and Tourism. From 2009 to 2014 he served as a law clerk to Justice Professor Sabino Cassese at the Constitutional Court of Italy. From 2012 to 2016 he has been Secretary general of the Institute for Research on Public Administration (IRPA). He has written several books and articles on cultural heritage, urban planning, comparative and global administrative law. He is on the board of editors of the International Journal of Constitutional Law, the Rivista trimestrale di diritto pubblico, and Aedon-Rivista di arti e diritto on line.

1. Tell us about something you are working on right now.

Since 2014 I have been working at the Italian Ministry of Cultural Heritage and Tourism. This has allowed me to put in practice most of the issues I have been researching for years. Taking part in the first G7 meeting dedicated to culture (Florence, March 30-31, 2017) has also been a unique chance to further develop my experience in the field of law of cultural heritage. Cultural heritage isand will always be – my main area of research and I have just published a book on that: a Cultural Heritage Law textbook, written together with four colleagues of mine, is forthcoming this Fall. At the same time, I keep working on other topics related to international, public and administrative law, such as global governance and global administrative law.

2. How and when do you write? Do you have a routine or do you write whenever and wherever you find the time?

Writing is a never-ending process. Like thinking, hopefully. My “routine” is just writing, writing, and writing because language is like rubber. Since many years I type directly my thoughts, though some times I desperately need a pencil in order to build “my” outline. My motto is “rem tene, verba sequentur”: this works for speeches as well as for writing. I was also very lucky in meeting and working with – people who has always made me feel the need for continuously studying, learning and researching, sometimes by simply watching their life-style. My role model is Gene Wilder in the movie “Young Frankenstein”, when he travels from America to Transylvania (by train!), he never sleeps and he never stops working.

3. Whose scholarship jumps to the top of your reading list when she or he publishes something new? 

Joseph H.H. Weiler, Richard B. Stewart, Benedict Kingsbury, Sabino Cassese, Laurence Boisson de Chazournes, to name but a few. But the priority of course is for anything published by I-CON!

4. Is there an article or book that influenced you as a law student and that continues today to be an important reference point for you?

All works written by John Henry Merryman (1920-2015). I first read his articles on cultural property in 1998, when I was in Law School writing my dissertation. His books and essays illuminated me and made me immediately understand the legal complexity of all different interests related to art and culture. You can imagine my emotion when I met him in 2008, after some years of exchanging emails on cultural property case studies: at the age of 88, he used to spend all morning working in his study at Stanford. John died in 2015 and we all miss him. He was a great comparative lawyer, who also built the basis of art law. The study of public law allowed me to properly deal with all of these topics: I am hugely grateful to Sabino Cassese and to Giulio Napolitano – and will always be deeply indebted to them – for showing me this path and wisely leading me along the way.

5. What are some of the big questions ripe for inquiry in your area of research interest?

In the field of cultural heritage law, the key question is always the same: Who owns the past? And this allows us to reflect on the very notion of cultural property and on its borders. Moreover, the recent decision by the International Criminal Court on the Al-Mahdi case – related to the destruction of cultural property in Mali – brought once again to the fore the importance of international criminal law in this field. Last May the Council of Europe has adopted a new Convention on crimes against cultural property. Therefore, some of the big questions are about what kind of legal instruments can truly protect world cultural heritage. And how does such protection relate to the field of human rights? Lastly, another important area of research is the relationship between public (law) and private (law) in the management of cultural heritage, namely with respect to cultural institutions, such as museums.

If we zoom out our view and we look at public law more in general, the study of the machine of government – how does it really work? who actually makes decisions? and with which kind of proceedings?is still a black hole in several countries. It is time to investigate such topics and how they interact with constitutional law and international law theories – especially because practices often challenge these latter or set them aside.

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Published on June 30, 2017
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Legal Uncertainty Surrounding the Approval of the Brexit Agreement

Antonios Kouroutakis, Assistant Professor, IE University

The referendum of June 23rd 2016 and the majority vote in favour of Brexit led British constitutional law into uncharted territories as Paul Craig has accurately said.[1] The constitutional order of the United Kingdom is being overwhelmed by a paradox. Although it is governed by the principle of parliamentary sovereignty rather than by the rule of popular sovereignty, the outcome of the referendum, as an expression of the principle of popular sovereignty, reveals unprecedented legal issues.

The first question raised was whether the executive had the power to activate Article 50 of the Treaty of the European Union (TEU) or whether there is a need to adopt a law according to which the Prime Minister will be empowered to activate Article 50 TEU. The UK Supreme Court resolved that issue [2] holding that the activation of article 50 TEU falls within the power of the legislative body, and therefore a parliamentary law is necessary.[3]

Since the withdrawal procedure under Article 50 TEU is triggered, the question is the following: what is the procedure for approving the possible agreement between the United Kingdom and the Member States of the European Union (henceforth Brexit Agreement)? Does a parliamentary procedure suffice? Or there is need for a new referendum?  And most importantly, in case the UK Parliament – or the popular will in a referendum – rejects the Brexit Agreement, what is the legal effect? Does the rejection of the Brexit Agreement automatically activate a hard Brexit?

Read the rest of this entry…

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Published on June 28, 2017
Author:          Filed under: Analysis
 

Daniels v. Scribante: South Africa Pushes the Boundaries of Horizontality and Social Rights

Aoife Nolan, University of Nottingham

The South African Constitutional Court ruling in Daniels v Scribante and Another[1] is a ground-breaking decision on the right to security of tenure – an aspect of the right to property under the South African Constitution (Section 25(6))[2] that has received relatively limited judicial analysis from a constitutional law perspective. In Daniels, all members of the Court found that the complainant was entitled to make improvements to her dwelling on a Stellenbosch farm owned by the second respondent. These improvements were sought against a backdrop of ‘a move calculated to get rid of Ms Daniels from the farm’ (para 5), involving the first respondent farm manager interfering with the dwelling’s door, cutting off the electricity supply and failing to maintain the dwelling adequately. Although earlier orders by the Stellenbosch Magistrate’s Court requiring the respondents to address these issues were implemented, it was accepted by all parties that the ongoing condition of the dwelling constituted an infringement of Ms Daniels’s right to human dignity. However, in a further proceeding, the Magistrate’s Court held that as an occupier of farmland under the Extension of Security of Tenure[3] – an Act passed to give effect to the constitutional right contained in Section 25(6) of the Constitution – Ms Daniels did not have the right to effect improvements to her dwelling without the consent of an owner or person in charge.

In a decision authored by Madlanga J and concurred with by five other members of the Court, great emphasis was placed on the importance of the historical context of systemic discrimination and dispossession experienced by generations of black South Africans as a result of colonialism and apartheid. (See also the concurring judgment of Froneman J). The same judgment stressed the linkage between the right to security of tenure and the right to human dignity. Adopting a purposive approach, Madlanga J highlighted that Section 25(6) and ESTA are not only about securing the tenure of ESTA occupiers but are also about affording occupiers the dignity that eluded most of them throughout the colonial and apartheid regimes.  In doing so, he stated that the notions ‘reside’ in terms of ESTA and ‘security of tenure’ must mean that the dwelling has to be habitable.  In this instance, ‘denial of the existence of the right asserted by Ms Daniels might inadvertently result in what would in effect be evictions. This would be a direct result of the intolerability of conditions on the dwelling’ (para 32).

Most excitingly from the perspective of comparative constitutional law, a majority of the Court rejected the argument that constitutionally an owner bears no positive obligation to ensure that an occupier lives under conditions that afford her or him human dignity. In doing so, it recognised the possibility of the direct horizontality of positive obligations imposed by constitutional ESR.

Read the rest of this entry…

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Published on June 27, 2017
Author:          Filed under: Developments
 

Special Issue on “Electoral Reform in Constitutional Democracies”

Richard Albert, Boston College Law School

I-CONnect readers may be interested in a special issue of the peer-reviewed Election Law Journal on the subject of Electoral Reform in Constitutional Democracies, guest edited by Michael Pal (Ottawa) and me.

Mike and I observed a couple of years ago that countries across the globe were undergoing major electoral reforms that would have implications for the robustness of their democratic procedures and outcomes, and that could in many cases determine whether liberal constitutionalism survives in those jurisdictions.

To give these events the scholarly attention we thought they deserved, we organized a special issue featuring thirteen articles from expert scholars, each describing and evaluating major electoral reforms in a country or region. From Egypt to Italy, New Zealand to the Caribbean, Canada to Kenya and many jurisdictions in between, this special issue is both an introduction and a deep dive into the challenge and promise of electoral reform in the democratic world.

The special issue has just been published. All papers–including a thematic introduction written by U.S. election law expert Vik Amar (Illinois)–are available for a free period of 30 days at the homepage of the Election Law Journal.

The table of contents–along with direct links to the papers in PDF and HTML–are available below.

Electoral Reform in Constitutional Democracies
Guest Editors: Richard Albert and Michael Pal

Introduction–The Stakes of Electoral Reform at Home and Abroad free access

Vikram David Amar

Election Law Journal: Rules, Politics, and Policy. Jun 2017, 16(2): 211-212.

Citation | Full Text PDF or HTML | Reprints | Permissions | Download Metadata

The Deliberative Case for Constitutional Referenda free access

Ron Levy

Election Law Journal: Rules, Politics, and Policy. Jun 2017, 16(2): 213-221.

Abstract | Full Text PDF or HTML

From People’s Revolution to Partisan Reform: Recent Electoral Change in New Zealand free access

Andrew Geddis

Election Law Journal: Rules, Politics, and Policy. Jun 2017, 16(2): 222-229.

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Lessons from Litigating for Reform free access

Nicholas Stephanopoulos

Election Law Journal: Rules, Politics, and Policy. Jun 2017, 16(2): 230-236.

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On the Nexus of Eternity Clauses, Proportional Representation, and Banned Political Parties free access

Rivka Weill

Election Law Journal: Rules, Politics, and Policy. Jun 2017, 16(2): 237-246.

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Towards a Ius Commune on Elections in Europe? The Role of the Code of Good Practice in Electoral Matters in “Harmonizing” Electoral Rights free access

Cristina Fasone, Giovanni Piccirilli

Election Law Journal: Rules, Politics, and Policy. Jun 2017, 16(2): 247-254.

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Three Narratives About Canadian Election Law free access

Michael Pal

Election Law Journal: Rules, Politics, and Policy. Jun 2017, 16(2): 255-262.

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Constitutional Reform in the Caribbean free access

Richard Albert

Election Law Journal: Rules, Politics, and Policy. Jun 2017, 16(2): 263-271.

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Italian Electoral Law: A Story of an Impossible Transition? free access

Antonia Baraggia

Election Law Journal: Rules, Politics, and Policy. Jun 2017, 16(2): 272-279.

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Military Electoral Authoritarianism in Egypt free access

Sahar F. Aziz

Election Law Journal: Rules, Politics, and Policy. Jun 2017, 16(2): 280-295.

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Legalizing Politics: An Evaluation of Hong Kong’s Recent Attempt at Democratization free access

Cora Chan

Election Law Journal: Rules, Politics, and Policy. Jun 2017, 16(2): 296-305.

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Lessons for Sub-Saharan Africa from Kenya on Electoral Reforms: The Role and Limitations of the Law free access

Duncan Okubasu

Election Law Journal: Rules, Politics, and Policy. Jun 2017, 16(2): 306-315.

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Electoral Reforms in Belgium’s Sixth State Reform: Historic Split of Electoral Constituency BHV, Reform of the Senate, and Coincident Elections free access

Jurgen Goossens

Election Law Journal: Rules, Politics, and Policy. Jun 2017, 16(2): 316-324.

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Brazilian Legislators at Work: Constitutional Amendments as Electoral Strategy free access

Eneida Desiree Salgado

Election Law Journal: Rules, Politics, and Policy. Jun 2017, 16(2): 325-333.

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Published on June 27, 2017
Author:          Filed under: Developments