Pub Date : 2020-09-08DOI: 10.5771/0506-7286-2020-2-190
Gerard Emmanuel Kamdem Kamga
The paper reviews counterterrorism legislation in Cameroon in relation to (in-) security, human rights and the rule of law. In December 2014, to step up the fight against the terrorist group Boko Haram, the Parliament of Cameroon enacted a new law on the suppression of acts of terrorism. However, owing to both its suppressive nature and serious threat to the security and rights of the people it claims to protect, the content of this law appears to be controversial. The author attempts to break down this legislation and argues that the distinctive feature of the recent counterterrorism legislation in Cameroon is the disappearance of the distinction between the perpetrators of terrorist activities and civilian populations as well as political opponents involved in national protests both being subject to capital punishment. In so doing, the author provides critical insights into a unique anti-terror universe, that is, the current socio-political situation in Cameroon. From the recent unrests and arrests following the controversial outcome of the 2018 presidential elections, to the crisis in the English speaking regions of Cameroon as well as the (bloody) suppression of journalists, emphasis is put on the extent to which the current legal architecture of the state has been overshadowed by a fearsome piece of legislation coupled with the hyperactivity of military judges who have been busy leading Kafkaesque trials almost on a full-time basis. In the end, what is noticeable is the extent to which the counterterrorism legislation of December 2014 unveiled itself as a suppressive device aiming at protecting the regime instead of a security arsenal for the sake of the society.
{"title":"Killing two birds with one stone: insights into the recent counterterrorism legislation in Cameroon","authors":"Gerard Emmanuel Kamdem Kamga","doi":"10.5771/0506-7286-2020-2-190","DOIUrl":"https://doi.org/10.5771/0506-7286-2020-2-190","url":null,"abstract":"The paper reviews counterterrorism legislation in Cameroon in relation to (in-) security, human rights and the rule of law. In December 2014, to step up the fight against the terrorist group Boko Haram, the Parliament of Cameroon enacted a new law on the suppression of acts of terrorism. However, owing to both its suppressive nature and serious threat to the security and rights of the people it claims to protect, the content of this law appears to be controversial. The author attempts to break down this legislation and argues that the distinctive feature of the recent counterterrorism legislation in Cameroon is the disappearance of the distinction between the perpetrators of terrorist activities and civilian populations as well as political opponents involved in national protests both being subject to capital punishment. In so doing, the author provides critical insights into a unique anti-terror universe, that is, the current socio-political situation in Cameroon. From the recent unrests and arrests following the controversial outcome of the 2018 presidential elections, to the crisis in the English speaking regions of Cameroon as well as the (bloody) suppression of journalists, emphasis is put on the extent to which the current legal architecture of the state has been overshadowed by a fearsome piece of legislation coupled with the hyperactivity of military judges who have been busy leading Kafkaesque trials almost on a full-time basis. In the end, what is noticeable is the extent to which the counterterrorism legislation of December 2014 unveiled itself as a suppressive device aiming at protecting the regime instead of a security arsenal for the sake of the society.","PeriodicalId":105125,"journal":{"name":"Verfassung in Recht und Übersee","volume":"165 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127410004","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-04-26DOI: 10.5771/0506-7286-2019-4-463
C. Ragazzo, F. Freitas
This article discusses the challenges of legislative systematization and inter-institutional coordination that have emerged as a result of the anti-corruption movement in Brazil in recent years. We contextualize the forthcoming discussion by presenting a brief history of Brazil’s normative framework on the subject, including elements that have proven important for combating corruption in the country. Later, we demonstrate that the formation of this national context on corruption has resulted in deficient legislative systematization, which causes difficulties in the application of the existing laws and rules. Moreover, it has hampered inter-institutional coordination, thus retarding processes, increasing the demands to the courts, elevating the insecurity of those who are subject to the institutions’ actions, and so on. In conclusion, although recent developments initiated by Brazil’s government and other ancillary institutions have attempted to address these issues, a deficiency is likely to exist in the foreseeable future, especially in terms of the proposed legislative agenda under discussion.
{"title":"Brazilian Anti-Corruption Structure: Normative Systematization and Institutional Coordination Issues","authors":"C. Ragazzo, F. Freitas","doi":"10.5771/0506-7286-2019-4-463","DOIUrl":"https://doi.org/10.5771/0506-7286-2019-4-463","url":null,"abstract":"This article discusses the challenges of legislative systematization and inter-institutional coordination that have emerged as a result of the anti-corruption movement in Brazil in recent years. We contextualize the forthcoming discussion by presenting a brief history of Brazil’s normative framework on the subject, including elements that have proven important for combating corruption in the country. Later, we demonstrate that the formation of this national context on corruption has resulted in deficient legislative systematization, which causes difficulties in the application of the existing laws and rules. Moreover, it has hampered inter-institutional coordination, thus retarding processes, increasing the demands to the courts, elevating the insecurity of those who are subject to the institutions’ actions, and so on. In conclusion, although recent developments initiated by Brazil’s government and other ancillary institutions have attempted to address these issues, a deficiency is likely to exist in the foreseeable future, especially in terms of the proposed legislative agenda under discussion.","PeriodicalId":105125,"journal":{"name":"Verfassung in Recht und Übersee","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128560118","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-10-01DOI: 10.5771/0506-7286-2019-3-348
M. Goldoni
The article expands Paul Kahn’s cultural analysis of the US Supreme Court’s charisma to EU institutions and, in particular, to the European Central Bank. The aim is twofold: on the one hand, the intention is to show the rich potential of the cultural study of law for understanding different constitutional experiences; on the other hand, the aim is to show that political sacrifice may not be the only material for building constitutional imagination. As the analysis of the ECB’s unconventional intervention into the Euro-crisis tries to establish, other forms of sacrifice might be conjured up, in a context where the constitutional order is held together more by rituals rather than violent commitments. Although the ECB does not enjoy sovereign authority, it has been able to maintain stable (though at a high price, not only metaphorically) the eurozone legal order.
{"title":"The Charisma of the European Central Bank: From Political Sacrifice to Monetary Rituals","authors":"M. Goldoni","doi":"10.5771/0506-7286-2019-3-348","DOIUrl":"https://doi.org/10.5771/0506-7286-2019-3-348","url":null,"abstract":"The article expands Paul Kahn’s cultural analysis of the US Supreme Court’s charisma to EU institutions and, in particular, to the European Central Bank. The aim is twofold: on the one hand, the intention is to show the rich potential of the cultural study of law for understanding different constitutional experiences; on the other hand, the aim is to show that political sacrifice may not be the only material for building constitutional imagination. As the analysis of the ECB’s unconventional intervention into the Euro-crisis tries to establish, other forms of sacrifice might be conjured up, in a context where the constitutional order is held together more by rituals rather than violent commitments. Although the ECB does not enjoy sovereign authority, it has been able to maintain stable (though at a high price, not only metaphorically) the eurozone legal order.","PeriodicalId":105125,"journal":{"name":"Verfassung in Recht und Übersee","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129084287","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2014-12-01DOI: 10.5771/0506-7286-2021-2-160
K. Davis, M. Machado, Guillermo Jorge
One of the most pressing challenges in anti-corruption law is whether and how to coordinate enforcement across multiple agencies, that is to say, under conditions of institutional multiplicity. One approach is modular enforcement, which involves dividing responsibility for enforcement among multiple institutions that are able, but not required, to coordinate their activities. The relatively impressive performance of Brazil’s anti-corruption agencies around the beginning of the twentieth century has been attributed to this kind of institutional modularity. We examine whether other similarly situated countries adopted the Brazilian approach. Specifically, we compare the extent to which the modular approach to anti-corruption enforcement was reflected in the national anti-corruption institutions of Brazil and five other South American countries as of 2014. We find little evidence that Brazil’s neighbors adopted the modular approach and suggest a variety of political, intellectual and institutional factors that may limit the attraction of institutional modularity outside the Brazilian context. Our analysis also demonstrates the value of an approach to comparative legal analysis which extends beyond the judiciary and the police to cover the full range of institutions involved in law enforcement.
{"title":"Coordinating the Enforcement of Anti-Corruption Law: South American Experiences","authors":"K. Davis, M. Machado, Guillermo Jorge","doi":"10.5771/0506-7286-2021-2-160","DOIUrl":"https://doi.org/10.5771/0506-7286-2021-2-160","url":null,"abstract":"One of the most pressing challenges in anti-corruption law is whether and how to coordinate enforcement across multiple agencies, that is to say, under conditions of institutional multiplicity. One approach is modular enforcement, which involves dividing responsibility for enforcement among multiple institutions that are able, but not required, to coordinate their activities. The relatively impressive performance of Brazil’s anti-corruption agencies around the beginning of the twentieth century has been attributed to this kind of institutional modularity. We examine whether other similarly situated countries adopted the Brazilian approach. Specifically, we compare the extent to which the modular approach to anti-corruption enforcement was reflected in the national anti-corruption institutions of Brazil and five other South American countries as of 2014. We find little evidence that Brazil’s neighbors adopted the modular approach and suggest a variety of political, intellectual and institutional factors that may limit the attraction of institutional modularity outside the Brazilian context. Our analysis also demonstrates the value of an approach to comparative legal analysis which extends beyond the judiciary and the police to cover the full range of institutions involved in law enforcement.","PeriodicalId":105125,"journal":{"name":"Verfassung in Recht und Übersee","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123910721","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5771/0506-7286-2021-4-592
{"title":"Acknowledgement of Peer Reviewers in 2021","authors":"","doi":"10.5771/0506-7286-2021-4-592","DOIUrl":"https://doi.org/10.5771/0506-7286-2021-4-592","url":null,"abstract":"","PeriodicalId":105125,"journal":{"name":"Verfassung in Recht und Übersee","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115122957","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5771/0506-7286-2022-2-187
Helen Eenmaa, Morag Goodwin, Ingunn Ikdahl, Marta Enciso Santocildes
Ten years ago, six institutions came together to establish a joint doctoral programme. The shared motivations behind this project were to improve the quality of doctoral research that we encountered and to create a space for qualitative research within our law schools. We called the project the ‘European Joint Doctorate in Law and Development’ (EDOLAD). A key element of the programme was to be a core, and therefore compulsory, curriculum that all researchers were to follow. For most of the scholars involved in the project, L&D was a useful label that allowed us to bridge our different interests and to create shared ground. For some, though, the core curriculum also provided an opportunity to define what we thought L&D education or legal research should be. What emerged was a focus on critical methodology. This paper explores this by reflecting on what we had hoped to achieve with the core curriculum and draws on EDOLAD researchers’ experiences to determine what impact our efforts at creating an L&D-focused education may have had. What our reflections here suggest, in part, is the difficulty of creating a coherent, field-building, programme of education in a multi-university collaboration in which resources are unevenly distributed; but also, more interestingly, that L&D as a concept - at least as we imagined it - seems to struggle to provide a scholarly identity for critical researchers.
{"title":"Away with oppressed methodology! Reflections on an experiment in Law & Development education","authors":"Helen Eenmaa, Morag Goodwin, Ingunn Ikdahl, Marta Enciso Santocildes","doi":"10.5771/0506-7286-2022-2-187","DOIUrl":"https://doi.org/10.5771/0506-7286-2022-2-187","url":null,"abstract":"Ten years ago, six institutions came together to establish a joint doctoral programme. The shared motivations behind this project were to improve the quality of doctoral research that we encountered and to create a space for qualitative research within our law schools. We called the project the ‘European Joint Doctorate in Law and Development’ (EDOLAD). A key element of the programme was to be a core, and therefore compulsory, curriculum that all researchers were to follow. For most of the scholars involved in the project, L&D was a useful label that allowed us to bridge our different interests and to create shared ground. For some, though, the core curriculum also provided an opportunity to define what we thought L&D education or legal research should be. What emerged was a focus on critical methodology. This paper explores this by reflecting on what we had hoped to achieve with the core curriculum and draws on EDOLAD researchers’ experiences to determine what impact our efforts at creating an L&D-focused education may have had. What our reflections here suggest, in part, is the difficulty of creating a coherent, field-building, programme of education in a multi-university collaboration in which resources are unevenly distributed; but also, more interestingly, that L&D as a concept - at least as we imagined it - seems to struggle to provide a scholarly identity for critical researchers.","PeriodicalId":105125,"journal":{"name":"Verfassung in Recht und Übersee","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116955685","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5771/0506-7286-2022-3-333
Natalia Ruiz Morato
This study reviews the past, present, and future of agrarian jurisdiction in the context of the agrarian reforms in Colombia with a focus on violent conflicts in rural areas. The methodology used is that of a multi-method case study and legal historic analysis. The study shows how, without an agrarian jurisdiction, the Colombian legal system faces a crisis of legitimacy, lacks effectiveness, and creates new interethnic rural conflicts. The study also evaluates the country’s recent legislative proposal in the light of constitutional law, the stated goals of the 2016 Peace Agreement, the Sustainable Development Goals and the United Nations Declaration on the Rights of Peasants (UNDROP). It offers recommendations on how to enforce the rule of law in agrarian issues, in order to overcome systematic violations of human, economic, social, and environmental rights of vulnerable rural populations: recommendations to be taken into consideration by the legal community and the international partners of the country’s comprehensive agrarian reform program.
{"title":"The Historical Debt: The Elusive Agrarian Jurisdiction in Colombia","authors":"Natalia Ruiz Morato","doi":"10.5771/0506-7286-2022-3-333","DOIUrl":"https://doi.org/10.5771/0506-7286-2022-3-333","url":null,"abstract":"This study reviews the past, present, and future of agrarian jurisdiction in the context of the agrarian reforms in Colombia with a focus on violent conflicts in rural areas. The methodology used is that of a multi-method case study and legal historic analysis. The study shows how, without an agrarian jurisdiction, the Colombian legal system faces a crisis of legitimacy, lacks effectiveness, and creates new interethnic rural conflicts. The study also evaluates the country’s recent legislative proposal in the light of constitutional law, the stated goals of the 2016 Peace Agreement, the Sustainable Development Goals and the United Nations Declaration on the Rights of Peasants (UNDROP). It offers recommendations on how to enforce the rule of law in agrarian issues, in order to overcome systematic violations of human, economic, social, and environmental rights of vulnerable rural populations: recommendations to be taken into consideration by the legal community and the international partners of the country’s comprehensive agrarian reform program.","PeriodicalId":105125,"journal":{"name":"Verfassung in Recht und Übersee","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125156466","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5771/0506-7286-2023-2-371
Dady Mumbanika Mbwisi
Applicable law protecting the right to health in the Democratic Republic of the Congo (DRC) consists of ratified human rights treaties, such as the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the African Charter on Human and Peoples’ Rights (African Charter), and domestic laws. However, none of these legal instruments explicitly mention traditional medicine (TM). Nevertheless, their provisions are broad enough to include TM. The Committee on Economic, Social, and Cultural Rights and the African Commission on Human and Peoples’ Rights have interpreted the right to health under the ICESCR and the African Charter to cover TM. Moreover, in implementing the right to health, the DRC has taken legislation, policies, and programs that regulate and protect TM. In addition to discouraging some bad practices associated with TM, regulation protects people from eventual violation of the right to health by Traditional Health Practitioners (THPs). Furthermore, the protection of medicinal natural resources contributes to the availability and accessibility of TM products. However, like in the colonial period, TM in the DRC continues to be marginalized compared to modern medicine. Therefore, several factors limit access to TM of good quality that is available and accessible. These include, among others, failure for public health facilities to provide TM, lack of provisions covering explicitly TM under the existing social security law, the absence of an adequate control mechanism, and the lack of appropriate criminal sanction regime.
{"title":"Traditional Medicine as Part of the Human Right to Health in the Democratic Republic of the Congo","authors":"Dady Mumbanika Mbwisi","doi":"10.5771/0506-7286-2023-2-371","DOIUrl":"https://doi.org/10.5771/0506-7286-2023-2-371","url":null,"abstract":"Applicable law protecting the right to health in the Democratic Republic of the Congo (DRC) consists of ratified human rights treaties, such as the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the African Charter on Human and Peoples’ Rights (African Charter), and domestic laws. However, none of these legal instruments explicitly mention traditional medicine (TM). Nevertheless, their provisions are broad enough to include TM. The Committee on Economic, Social, and Cultural Rights and the African Commission on Human and Peoples’ Rights have interpreted the right to health under the ICESCR and the African Charter to cover TM. Moreover, in implementing the right to health, the DRC has taken legislation, policies, and programs that regulate and protect TM. In addition to discouraging some bad practices associated with TM, regulation protects people from eventual violation of the right to health by Traditional Health Practitioners (THPs). Furthermore, the protection of medicinal natural resources contributes to the availability and accessibility of TM products. However, like in the colonial period, TM in the DRC continues to be marginalized compared to modern medicine. Therefore, several factors limit access to TM of good quality that is available and accessible. These include, among others, failure for public health facilities to provide TM, lack of provisions covering explicitly TM under the existing social security law, the absence of an adequate control mechanism, and the lack of appropriate criminal sanction regime.","PeriodicalId":105125,"journal":{"name":"Verfassung in Recht und Übersee","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122797588","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5771/0506-7286-2023-2-396
J. D. Mujuzi
The jurisdiction of the Constitutional Court of the Seychelles, the Court, is provided for under different provisions of the Constitution. Article 46 deals with the circumstances in which a person may approach the Court to enforce human rights. It also deals with the powers of the Court in this context. In this article, I illustrate how the Court, when enforcing or applying Article 46, has dealt with the following issues: locus standi to petition the Court; circumstances in which the Court's jurisdiction is excluded or limited; powers of the Court in protecting human rights, circumstances in which other courts may refer matters to the Constitutional Court and procedural access to the Court and the burden to prove human rights violations. It is observed that for a person to have locus standi under Article 46(1), there has to be a real likelihood that his/her right will be violated. A remote possibility of a violation does not trigger Article 46(1). It is observed further that the right under Article 46(1) is not absolute; although the word ‘may’ is used under Article 46(3), the Court is obliged to decline being seized with a matter in case the applicant has obtained redress from another court; since the constitution is silent on the burden of proof in cases where a private individual is alleged to have violated a human right, the burden should be on the applicant to prove such a violation; and that the Rules of the Court which require that an action alleging a violation of human rights has to be filed within three months of the violation may have to be amended to create exceptions for continuing violations of human rights and for the violation of non-derogable rights.
{"title":"The Human Rights Jurisdiction of the Constitutional Court of Seychelles","authors":"J. D. Mujuzi","doi":"10.5771/0506-7286-2023-2-396","DOIUrl":"https://doi.org/10.5771/0506-7286-2023-2-396","url":null,"abstract":"The jurisdiction of the Constitutional Court of the Seychelles, the Court, is provided for under different provisions of the Constitution. Article 46 deals with the circumstances in which a person may approach the Court to enforce human rights. It also deals with the powers of the Court in this context. In this article, I illustrate how the Court, when enforcing or applying Article 46, has dealt with the following issues: locus standi to petition the Court; circumstances in which the Court's jurisdiction is excluded or limited; powers of the Court in protecting human rights, circumstances in which other courts may refer matters to the Constitutional Court and procedural access to the Court and the burden to prove human rights violations. It is observed that for a person to have locus standi under Article 46(1), there has to be a real likelihood that his/her right will be violated. A remote possibility of a violation does not trigger Article 46(1). It is observed further that the right under Article 46(1) is not absolute; although the word ‘may’ is used under Article 46(3), the Court is obliged to decline being seized with a matter in case the applicant has obtained redress from another court; since the constitution is silent on the burden of proof in cases where a private individual is alleged to have violated a human right, the burden should be on the applicant to prove such a violation; and that the Rules of the Court which require that an action alleging a violation of human rights has to be filed within three months of the violation may have to be amended to create exceptions for continuing violations of human rights and for the violation of non-derogable rights.","PeriodicalId":105125,"journal":{"name":"Verfassung in Recht und Übersee","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131348900","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5771/0506-7286-2021-4-461
William Partlett, Dinesha Samararatne
In many countries beyond the traditional comparative constitutional law canon, the advocates of constitutionalism are increasingly appealing to a supra-national constitutional discourse frequently grounded in best practices for constitutionalism. This trend has helped to foster a nationalistic backlash which arguesin which constitutional advocates argue that constitutions should not reflect international constitutional norms but instead must reflect historically-grounded tradition or identity. How should advocates of constitutionalism understand and respond to this backlash? We argue that linking a critical interpretation of national history and the text of the national constitution to constitutionalism can help to counter this nationalist backlash, particularly in constitutional adjudication. Looking at Russia and Sri Lanka, we illustrate how this process of “redeeming the national” can provide new arguments for those interested in advancing the project of constitutionalism. We argue further that this kind of constitutional argument can also help to uncover ways of adapting constitutional principles to particular national contexts.
{"title":"Redeeming the National in Constitutional Argument","authors":"William Partlett, Dinesha Samararatne","doi":"10.5771/0506-7286-2021-4-461","DOIUrl":"https://doi.org/10.5771/0506-7286-2021-4-461","url":null,"abstract":"In many countries beyond the traditional comparative constitutional law canon, the advocates of constitutionalism are increasingly appealing to a supra-national constitutional discourse frequently grounded in best practices for constitutionalism. This trend has helped to foster a nationalistic backlash which arguesin which constitutional advocates argue that constitutions should not reflect international constitutional norms but instead must reflect historically-grounded tradition or identity. How should advocates of constitutionalism understand and respond to this backlash? We argue that linking a critical interpretation of national history and the text of the national constitution to constitutionalism can help to counter this nationalist backlash, particularly in constitutional adjudication. Looking at Russia and Sri Lanka, we illustrate how this process of “redeeming the national” can provide new arguments for those interested in advancing the project of constitutionalism. We argue further that this kind of constitutional argument can also help to uncover ways of adapting constitutional principles to particular national contexts.","PeriodicalId":105125,"journal":{"name":"Verfassung in Recht und Übersee","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130861734","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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