Abstract This article will analyze the way in which B R Ambedkar's lived experience and jurisprudential commitments framed the discursive structure of the Indian Constitution and reformulated prevailing conceptions of liberal constitutionalism to reflect the specific and historically contingent context in which it was formed. Whereas prevailing notions of political rights in Western liberalism were conceived as abstract protections of individuals against the state, Ambedkar attempted to reframe the idea of rights as including correlative duties and accounting for material conditions of inequality and systemic discrimination. Heblurred the distinction between the higher-order law and everyday politics, and conceptualized rights as horizontal in addition to vertical in character. Finally, he included a temporal reorientation of the liberal constitutional paradigm by incorporating permissive constitutional structures. This article analyzes his approach to constitutional jurisprudence within the framework of Mari Matsuda’s notion of multiple consciousness.
{"title":"B R Ambedkar’s Multiple Consciousness and the Framing of the Indian Constitution","authors":"Sujata Gadkar-Wilcox","doi":"10.1515/icl-2022-0021","DOIUrl":"https://doi.org/10.1515/icl-2022-0021","url":null,"abstract":"Abstract This article will analyze the way in which B R Ambedkar's lived experience and jurisprudential commitments framed the discursive structure of the Indian Constitution and reformulated prevailing conceptions of liberal constitutionalism to reflect the specific and historically contingent context in which it was formed. Whereas prevailing notions of political rights in Western liberalism were conceived as abstract protections of individuals against the state, Ambedkar attempted to reframe the idea of rights as including correlative duties and accounting for material conditions of inequality and systemic discrimination. Heblurred the distinction between the higher-order law and everyday politics, and conceptualized rights as horizontal in addition to vertical in character. Finally, he included a temporal reorientation of the liberal constitutional paradigm by incorporating permissive constitutional structures. This article analyzes his approach to constitutional jurisprudence within the framework of Mari Matsuda’s notion of multiple consciousness.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"8 1","pages":"107 - 134"},"PeriodicalIF":0.2,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90392524","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}
Abstract The Chinese national legislature has enacted a national security law (NSL) for Hong Kong. This paper applies the theory of national security constitution as developed by Professor Koh to examine the impact of the NSL upon four core constitutional principles in Hong Kong’s mini-constitution which underly its national security constitution and to evaluate the nature of the impact. The paper argues that the NSL has, instead of applying and supplementing the existing underlying constitutional principles in the mini-constitution, changed them to various degrees, and the pre-NSL bifurcated national security system for Hong Kong and mainland China has been replaced by an integrated national security system under the NSL. The impact caused by the NSL is so significant as to amount to a permanent paradigm shift to a new post-NSL national security constitution. The paper also argues that the theory of national security constitution has its limitation in its application to subnational Hong Kong because its mini-constitution and the underlying principles therein can be modified by national legislation, such as the NSL, of its sovereign, China. Through a comparative study with the USA, the paper proposes that the theory of national security constitution needs to be modified by adding that different effects may occur to a sub-national national security constitution depending on the source of the framework national security legislation. Hong Kong’s failure in its constitutional duty to enact national security legislation under Article 23 of the Basic Law has led to the enactment of the NSL by China. Such legislation from the sovereign has changed the underlying constitutional principles and is fundamentally different from sub-national framework legislation that only implements and supplements those principles. However, a comparative study with Macau indicates that the theory of national security constitution is still applicable to a sub-national entity such as Macau so long as China as sovereign exercises self-restraint and any framework national security legislation is enacted at the sub-national level.
{"title":"A Paradigm Shift for Hong Kong’s National Security Constitution – A Comparative Study of the Impact of Its National Security Law","authors":"Feng Lin, Mengtian Fei","doi":"10.1515/icl-2022-0015","DOIUrl":"https://doi.org/10.1515/icl-2022-0015","url":null,"abstract":"Abstract The Chinese national legislature has enacted a national security law (NSL) for Hong Kong. This paper applies the theory of national security constitution as developed by Professor Koh to examine the impact of the NSL upon four core constitutional principles in Hong Kong’s mini-constitution which underly its national security constitution and to evaluate the nature of the impact. The paper argues that the NSL has, instead of applying and supplementing the existing underlying constitutional principles in the mini-constitution, changed them to various degrees, and the pre-NSL bifurcated national security system for Hong Kong and mainland China has been replaced by an integrated national security system under the NSL. The impact caused by the NSL is so significant as to amount to a permanent paradigm shift to a new post-NSL national security constitution. The paper also argues that the theory of national security constitution has its limitation in its application to subnational Hong Kong because its mini-constitution and the underlying principles therein can be modified by national legislation, such as the NSL, of its sovereign, China. Through a comparative study with the USA, the paper proposes that the theory of national security constitution needs to be modified by adding that different effects may occur to a sub-national national security constitution depending on the source of the framework national security legislation. Hong Kong’s failure in its constitutional duty to enact national security legislation under Article 23 of the Basic Law has led to the enactment of the NSL by China. Such legislation from the sovereign has changed the underlying constitutional principles and is fundamentally different from sub-national framework legislation that only implements and supplements those principles. However, a comparative study with Macau indicates that the theory of national security constitution is still applicable to a sub-national entity such as Macau so long as China as sovereign exercises self-restraint and any framework national security legislation is enacted at the sub-national level.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"35 1","pages":"135 - 202"},"PeriodicalIF":0.2,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75486356","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}
Abstract In many legal systems, methods of interpretation are unwritten customary norms. As such, they depend on consistent practice of legal officials and their acceptance of those methods as binding. Among them, the most important are judges. The EU legal system is characterised by a two-tier judiciary, composed of the Court of Justice and national courts. The Court of Justice has the final word regarding the development of the methods of interpretation of EU law. National courts are required to accept and apply those methods when they interpret EU law on their own. This is essential for ensuring uniformity and effectiveness of EU law. The Court of Justice therefore needs to develop the methods of interpretation of EU law through a dialogue with national courts. How any method of interpretation will be employed in a particular case depends on moral and political values that inform their use. The inherent characteristic of the EU legal order is value pluralism. This means that although the same constitutional values are likely to be formally recognised in the EU and its Member States, their conceptions may nonetheless vary. To have uniform EU law that produces same effects in all Member States, national courts have to interpret EU law by using particular methods of interpretation informed by EU conceptions of values that are associated with those methods. So, these EU values likewise have to be shared by national courts whenever they interpret EU law. What these EU values are is determined not only by the Court of Justice in a dialogue with national courts, but with other institutional actors, supranational and national, in the EU legal order.
{"title":"A Reflection on the Methods of Interpretation of EU Law","authors":"Davor Petrić","doi":"10.1515/icl-2022-0022","DOIUrl":"https://doi.org/10.1515/icl-2022-0022","url":null,"abstract":"Abstract In many legal systems, methods of interpretation are unwritten customary norms. As such, they depend on consistent practice of legal officials and their acceptance of those methods as binding. Among them, the most important are judges. The EU legal system is characterised by a two-tier judiciary, composed of the Court of Justice and national courts. The Court of Justice has the final word regarding the development of the methods of interpretation of EU law. National courts are required to accept and apply those methods when they interpret EU law on their own. This is essential for ensuring uniformity and effectiveness of EU law. The Court of Justice therefore needs to develop the methods of interpretation of EU law through a dialogue with national courts. How any method of interpretation will be employed in a particular case depends on moral and political values that inform their use. The inherent characteristic of the EU legal order is value pluralism. This means that although the same constitutional values are likely to be formally recognised in the EU and its Member States, their conceptions may nonetheless vary. To have uniform EU law that produces same effects in all Member States, national courts have to interpret EU law by using particular methods of interpretation informed by EU conceptions of values that are associated with those methods. So, these EU values likewise have to be shared by national courts whenever they interpret EU law. What these EU values are is determined not only by the Court of Justice in a dialogue with national courts, but with other institutional actors, supranational and national, in the EU legal order.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"62 1","pages":"83 - 105"},"PeriodicalIF":0.2,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89946653","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}
Abstract Silence, a political category in democratic theory, has proven starkly unjust toward future generations, who are practically voiceless in intergovernmental fora, a notable feature of the international climate regime. This article first explores the status of future generations’ fight for the climate by articulating the solidarity implications of climate change as a common concern of humankind. Second, the analysis offers a brief overview of the recent constitutionalization trend concerning future generations’ interests in the environment as a meaningful counterweight to the politics of silence. Third, the article discusses climate change litigation as a catalyst of the constitutionalization trend and a proxy for political participation. Throughout the analysis, the article turns to the thought of political theorist Hannah Arendt to illustrate the potential of legally protecting future generations’ role in fighting for a stable climate through post-sovereign constitutionalism. By way of a case study, the analysis argues that in Neubauer et al v Germany Germany’s Federal Constitutional Court offered practical ways to offset the politics of silence and increase the political space for future freedoms. Conclusively, the article offers a snapshot of open and fluid post-sovereign constitutional institutions and participative practices that could advance freedoms for future generations.
{"title":"The Politics of Silence: Hannah Arendt and Future Generations’ Fight for the Climate","authors":"Esmeralda Colombo","doi":"10.1515/icl-2022-0017","DOIUrl":"https://doi.org/10.1515/icl-2022-0017","url":null,"abstract":"Abstract Silence, a political category in democratic theory, has proven starkly unjust toward future generations, who are practically voiceless in intergovernmental fora, a notable feature of the international climate regime. This article first explores the status of future generations’ fight for the climate by articulating the solidarity implications of climate change as a common concern of humankind. Second, the analysis offers a brief overview of the recent constitutionalization trend concerning future generations’ interests in the environment as a meaningful counterweight to the politics of silence. Third, the article discusses climate change litigation as a catalyst of the constitutionalization trend and a proxy for political participation. Throughout the analysis, the article turns to the thought of political theorist Hannah Arendt to illustrate the potential of legally protecting future generations’ role in fighting for a stable climate through post-sovereign constitutionalism. By way of a case study, the analysis argues that in Neubauer et al v Germany Germany’s Federal Constitutional Court offered practical ways to offset the politics of silence and increase the political space for future freedoms. Conclusively, the article offers a snapshot of open and fluid post-sovereign constitutional institutions and participative practices that could advance freedoms for future generations.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"21 1","pages":"43 - 81"},"PeriodicalIF":0.2,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89193078","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}
Abstract Our Western-style constitutional systems are not only built on 16th to 18th century social contract theory, but also mainly on a liberal understanding of individual human rights. They are an element of constitutions and international treaties and are increasingly used as a basis for claims of individuals against states for more action to tackle the climate change crisis. However, a human right to a sustainable climate meets plenty of challenges if understood as a classic human right. The question is whether human rights offer a solution to legal questions of the climate crisis by empowering people to demand specific measures from states. The authors demonstrate how the search for solutions has altered the understanding of human rights globally and will continue to do so. It sheds a light on whether the premises on the relationship between state and individual and burdens on individual freedom can still be answered by paradigms from social contract theories and whether the social contract needs to be enlarged by including non-human actors (like eco-systems) or future generations.
{"title":"You Cannot Have the Cake and Eat It – How to Reconcile Liberal Fundamental Rights with Answers to the Climate Crisis","authors":"Eva Julia Lohse, María Valeria Berros","doi":"10.1515/icl-2022-0018","DOIUrl":"https://doi.org/10.1515/icl-2022-0018","url":null,"abstract":"Abstract Our Western-style constitutional systems are not only built on 16th to 18th century social contract theory, but also mainly on a liberal understanding of individual human rights. They are an element of constitutions and international treaties and are increasingly used as a basis for claims of individuals against states for more action to tackle the climate change crisis. However, a human right to a sustainable climate meets plenty of challenges if understood as a classic human right. The question is whether human rights offer a solution to legal questions of the climate crisis by empowering people to demand specific measures from states. The authors demonstrate how the search for solutions has altered the understanding of human rights globally and will continue to do so. It sheds a light on whether the premises on the relationship between state and individual and burdens on individual freedom can still be answered by paradigms from social contract theories and whether the social contract needs to be enlarged by including non-human actors (like eco-systems) or future generations.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"31 1","pages":"17 - 41"},"PeriodicalIF":0.2,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77303372","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}
Abstract Climate change is one of the most alarming events today, which will very likely have devastating effects on a lot of people worldwide. This paper addresses the question as to how constitutional sustainability clauses can be enforced in the age of the climate crisis. It does so by looking into some difficulties of making the notion of future generations operable. First, the paper will briefly analyze two decisions by the Austrian Constitutional Court and the Norwegian Supreme Court, which have both rejected claims based on constitutional sustainability clauses referring to future generations. This is juxtaposed with a recent decision by the Federal Constitutional Court of Germany which invigorated Article 20a of the German Basic Law and thereby also future generations. Second, this paper aims at shedding light on the notion of future generations by looking into philosophical debates on the so-called non-identity problem. The question as to how to include future generations in the social contract and selected philosophical strategies to address it are discussed and introduced to the legal discourse. This seems to be a worthwhile goal as by now several scholars from various disciplines such as geography, political science, and applied ecology have opened up a debate on the role of social contracts concerning climate change. This paper seeks to further the debate by aiming to suggest a connection between philosophical social contract reasoning and constitutional sustainability clauses taking the example of Austria, Norway, and Germany.
{"title":"Enforcing Constitutional Sustainability Clauses in the Age of the Climate Crisis: Insights from Social Contract Theory on How to Take Account of Future Generations","authors":"Lando Kirchmair","doi":"10.1515/icl-2022-0001","DOIUrl":"https://doi.org/10.1515/icl-2022-0001","url":null,"abstract":"Abstract Climate change is one of the most alarming events today, which will very likely have devastating effects on a lot of people worldwide. This paper addresses the question as to how constitutional sustainability clauses can be enforced in the age of the climate crisis. It does so by looking into some difficulties of making the notion of future generations operable. First, the paper will briefly analyze two decisions by the Austrian Constitutional Court and the Norwegian Supreme Court, which have both rejected claims based on constitutional sustainability clauses referring to future generations. This is juxtaposed with a recent decision by the Federal Constitutional Court of Germany which invigorated Article 20a of the German Basic Law and thereby also future generations. Second, this paper aims at shedding light on the notion of future generations by looking into philosophical debates on the so-called non-identity problem. The question as to how to include future generations in the social contract and selected philosophical strategies to address it are discussed and introduced to the legal discourse. This seems to be a worthwhile goal as by now several scholars from various disciplines such as geography, political science, and applied ecology have opened up a debate on the role of social contracts concerning climate change. This paper seeks to further the debate by aiming to suggest a connection between philosophical social contract reasoning and constitutional sustainability clauses taking the example of Austria, Norway, and Germany.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"26 1","pages":"1 - 16"},"PeriodicalIF":0.2,"publicationDate":"2022-11-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83095741","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}
Abstract This article examines the supremacy accorded to free speech by the First Amendment of the American Constitution and in contrast, the European Union’s 2018 General Data Protection Regulation [GDPR] that highlights data protection. It compares speech as a fundamental human right in US law with the GDPR that champions individual and social rights in personal data as constraints upon speech action. It evaluates US and EU law in light of the history of the law of privacy and the protection of personal information, as is reflected in the International Covenant on Civil and Political Rights [ICCPR]. The article concludes by proposing a uniform and consistent regime for limiting freedom of expression in an era of mass exposure of personal data to harmful online dissemination on the global Internet of Things [IoT].
{"title":"The Cost of Free Speech: Is Your Personal Data Safe?","authors":"L. Trakman","doi":"10.1515/icl-2022-0005","DOIUrl":"https://doi.org/10.1515/icl-2022-0005","url":null,"abstract":"Abstract This article examines the supremacy accorded to free speech by the First Amendment of the American Constitution and in contrast, the European Union’s 2018 General Data Protection Regulation [GDPR] that highlights data protection. It compares speech as a fundamental human right in US law with the GDPR that champions individual and social rights in personal data as constraints upon speech action. It evaluates US and EU law in light of the history of the law of privacy and the protection of personal information, as is reflected in the International Covenant on Civil and Political Rights [ICCPR]. The article concludes by proposing a uniform and consistent regime for limiting freedom of expression in an era of mass exposure of personal data to harmful online dissemination on the global Internet of Things [IoT].","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"32 1","pages":"375 - 420"},"PeriodicalIF":0.2,"publicationDate":"2022-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73092593","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}
Abstract The paper aims to analyse several theoretical problems concerning the recognition of the right to conscientious objection to compulsory vaccination. Our interest in the matter has stemmed from our domestic experience in the Czech Republic, ie a country with a traditional, comprehensive system of compulsory vaccination, but also a country in which the Constitutional Court recognised that, under certain conditions, conscientious objections to compulsory vaccination may be successfully invoked. The Constitutional Court created a special four-prong test for public authorities to ascertain whether the conscientious objection is legitimate to the case at hand and compulsory vaccination should not be enforced. We believe that sharing the Czech experience and pinpointing its crucial, but also debatable, aspects (especially the legal basis for the recognition of conscientious objection and the test itself) may be a useful comparative material for other states with a system of compulsory vaccination, or states which contemplate its introduction, possibly even against Covid-19. However, to add a broader European perspective, the paper will also examine the context of the relationship between compulsory vaccination and conscientious objection in the light of the Convention and will analyse the relevant case-law of the Strasbourg Court. A definitive answer as to whether a conscientious objection to compulsory vaccination may entail the protection of Article 9 of the Convention has not yet been given by the Strasbourg Court. Nevertheless, we argue that the case-law indicates that, under certain conditions, conscientious objections could attract the guarantees of Article 9 in future cases.
{"title":"Conscientious Objection to Compulsory Vaccination? Lessons from the Case-Law of the European Court of Human Rights and a Test Employed by the Czech Constitutional Court","authors":"Miluše Kindlová, O. Preuss","doi":"10.1515/icl-2022-0007","DOIUrl":"https://doi.org/10.1515/icl-2022-0007","url":null,"abstract":"Abstract The paper aims to analyse several theoretical problems concerning the recognition of the right to conscientious objection to compulsory vaccination. Our interest in the matter has stemmed from our domestic experience in the Czech Republic, ie a country with a traditional, comprehensive system of compulsory vaccination, but also a country in which the Constitutional Court recognised that, under certain conditions, conscientious objections to compulsory vaccination may be successfully invoked. The Constitutional Court created a special four-prong test for public authorities to ascertain whether the conscientious objection is legitimate to the case at hand and compulsory vaccination should not be enforced. We believe that sharing the Czech experience and pinpointing its crucial, but also debatable, aspects (especially the legal basis for the recognition of conscientious objection and the test itself) may be a useful comparative material for other states with a system of compulsory vaccination, or states which contemplate its introduction, possibly even against Covid-19. However, to add a broader European perspective, the paper will also examine the context of the relationship between compulsory vaccination and conscientious objection in the light of the Convention and will analyse the relevant case-law of the Strasbourg Court. A definitive answer as to whether a conscientious objection to compulsory vaccination may entail the protection of Article 9 of the Convention has not yet been given by the Strasbourg Court. Nevertheless, we argue that the case-law indicates that, under certain conditions, conscientious objections could attract the guarantees of Article 9 in future cases.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"44 1","pages":"447 - 469"},"PeriodicalIF":0.2,"publicationDate":"2022-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79077828","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}
Abstract This article aims to analyse how constitutional courts make use of advisory opinions of the European Commission for Democracy through Law (Venice Commission). Despite that national constitutional courts significantly engage with the advisory work of the Venice Commission, the causes and effects of this engagement remain less explored in constitutional law scholarship. In order to address this gap, this article, from a macro perspective, examines the case law in which the Venice Commission is referred to by constitutional courts, drawn from the Venice Commission’s constitutional adjudication database (CODICES). In addition, appropriate data from the case law of the Constitutional Court of Turkey is examined in particular to expand the scope of the research through micro lens. The article argues that constitutional advice has some advantages for constitutional judges given that it provides a strategic tool for determining reasoning. Despite its non-binding nature, the Venice Commission’s constitutional advice is occasionally considered by constitutional courts, depending on the strategic preferences of the courts, and the judges in a given jurisdiction.
{"title":"Constitutional Courts’ Helpdesk: The Venice Commission’s Advisory Role in Constitutional Adjudication","authors":"Serkan Yolcu","doi":"10.1515/icl-2021-0044","DOIUrl":"https://doi.org/10.1515/icl-2021-0044","url":null,"abstract":"Abstract This article aims to analyse how constitutional courts make use of advisory opinions of the European Commission for Democracy through Law (Venice Commission). Despite that national constitutional courts significantly engage with the advisory work of the Venice Commission, the causes and effects of this engagement remain less explored in constitutional law scholarship. In order to address this gap, this article, from a macro perspective, examines the case law in which the Venice Commission is referred to by constitutional courts, drawn from the Venice Commission’s constitutional adjudication database (CODICES). In addition, appropriate data from the case law of the Constitutional Court of Turkey is examined in particular to expand the scope of the research through micro lens. The article argues that constitutional advice has some advantages for constitutional judges given that it provides a strategic tool for determining reasoning. Despite its non-binding nature, the Venice Commission’s constitutional advice is occasionally considered by constitutional courts, depending on the strategic preferences of the courts, and the judges in a given jurisdiction.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"136 1","pages":"421 - 445"},"PeriodicalIF":0.2,"publicationDate":"2022-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80247164","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}
Abstract Whether national (constitutional) courts are entitled to exercise ultra-vires review of the decisions of the European Court of Justice is not only a controversial question, but also one of the most emotive issues in European and constitutional law. This article questions firstly the general and often emotional criticism of national ultra-vires review in general and answers the fundamental question whether national ultra-vires review represents a threat or rather an asset to the rule of law at a national, European and international level. It argues that a national ultra-vires review is an important instrument to supervise the international judiciary provided that it is not abusive of the law. Secondly, the article analyses the PSPP Judgment and the Polish ultra-vires decision of October 21, 2021. It concludes that only the ultra-vires review of the German Constitutional Court meets the requirements for a rule of law based control. The final argument is that a rule of law based ultra-vires review should be seen as a crucial piece of the puzzle in the current process of delimiting vertical authority.
{"title":"Emotion and the Vertical Separation of Powers: Ultra-Vires Review by National (Constitutional) Courts, and EU and International Law","authors":"Monika Polzin","doi":"10.1515/icl-2022-0002","DOIUrl":"https://doi.org/10.1515/icl-2022-0002","url":null,"abstract":"Abstract Whether national (constitutional) courts are entitled to exercise ultra-vires review of the decisions of the European Court of Justice is not only a controversial question, but also one of the most emotive issues in European and constitutional law. This article questions firstly the general and often emotional criticism of national ultra-vires review in general and answers the fundamental question whether national ultra-vires review represents a threat or rather an asset to the rule of law at a national, European and international level. It argues that a national ultra-vires review is an important instrument to supervise the international judiciary provided that it is not abusive of the law. Secondly, the article analyses the PSPP Judgment and the Polish ultra-vires decision of October 21, 2021. It concludes that only the ultra-vires review of the German Constitutional Court meets the requirements for a rule of law based control. The final argument is that a rule of law based ultra-vires review should be seen as a crucial piece of the puzzle in the current process of delimiting vertical authority.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"11 1","pages":"285 - 325"},"PeriodicalIF":0.2,"publicationDate":"2022-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73374698","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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