Abstract The article examines the issue of compatibility of the Family Reunification Directive with the important changes that the adoption of the Lisbon Treaty brought to the field of fundamental rights in the EU especially considering the fact that the Charter of Fundamental Rights of the EU gained the same legal value as the treaties. The article examines all possible scenarios that may derive from Art 52 (3) of the Charter and the problems or issues that each of them may entail for the immigrants’ right to family life in the EU. This examination reveals that certain aspects of the provisions of the Family Reunification Directive are not compatible with Art 8 of the European Convention on Human Rights, and proposes that the EU should, in any event, provide more extensive protection than the one provided for by the Convention. The article proposes a reunification model which may be more compatible with the post-Lisbon fundamental rights scene.
{"title":"A Re-examination of the Family Reunification Directive in the post-Lisbon Fundamental Rights Scene","authors":"G. Milios","doi":"10.1515/icl-2017-0083","DOIUrl":"https://doi.org/10.1515/icl-2017-0083","url":null,"abstract":"Abstract The article examines the issue of compatibility of the Family Reunification Directive with the important changes that the adoption of the Lisbon Treaty brought to the field of fundamental rights in the EU especially considering the fact that the Charter of Fundamental Rights of the EU gained the same legal value as the treaties. The article examines all possible scenarios that may derive from Art 52 (3) of the Charter and the problems or issues that each of them may entail for the immigrants’ right to family life in the EU. This examination reveals that certain aspects of the provisions of the Family Reunification Directive are not compatible with Art 8 of the European Convention on Human Rights, and proposes that the EU should, in any event, provide more extensive protection than the one provided for by the Convention. The article proposes a reunification model which may be more compatible with the post-Lisbon fundamental rights scene.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"3 1","pages":"114 - 85"},"PeriodicalIF":0.2,"publicationDate":"2018-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90148466","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 building in Braunau am Inn in which Adolf Hitler was born was privately owned until its expropriation at the beginning of 2017. The former owner believed the expropriation to be unconstitutional and filed a complaint before the Austrian Constitutional Court. The Constitutional Court denied that there was an infringement either of the Right to a Fair Trial under Art 6 ECHR or the Right to Property under Art 5 StGG and Art 1 1. Protocol to the ECHR and found the Law on Expropriation to be constitutional.
阿道夫·希特勒(Adolf Hitler)出生在因河畔布劳瑙(Braunau am Inn)的这座建筑一直是私人所有，直到2017年初被征用。前业主认为征用是违宪的，并向奥地利宪法法院提出申诉。宪法法院否认存在侵犯《欧洲人权公约》第6条规定的公平审判权或《基本法》第5条和第11条规定的财产权的情况。《欧洲人权公约议定书》并认定《征用法》符合宪法。
{"title":"Expropriation of Adolf Hitler’s Birthplace: Justified under the Special Historic Responsibility of Austria","authors":"Tamara Schöndorfer","doi":"10.1515/icl-2017-0099","DOIUrl":"https://doi.org/10.1515/icl-2017-0099","url":null,"abstract":"Abstract The building in Braunau am Inn in which Adolf Hitler was born was privately owned until its expropriation at the beginning of 2017. The former owner believed the expropriation to be unconstitutional and filed a complaint before the Austrian Constitutional Court. The Constitutional Court denied that there was an infringement either of the Right to a Fair Trial under Art 6 ECHR or the Right to Property under Art 5 StGG and Art 1 1. Protocol to the ECHR and found the Law on Expropriation to be constitutional.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"25 1","pages":"115 - 124"},"PeriodicalIF":0.2,"publicationDate":"2018-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74650034","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 European Court of Human Rights needs to find a balance between upholding diversity (and respecting sovereignty through the margin of appreciation doctrine) on the one hand, and the aspiration to set universal human rights standards, on the other. Responses to these opposing forces are reflected in various doctrines and methods of interpretation, judicial choices that often predetermine the outcome of a case. Through examples taken from the LGBT rights jurisprudence, the article explores how the competing notions of European consensus (a conservative one and a dynamic one) relate to other techniques of interpretation, and how they influence the decision-making of the Court. The article explains that the Court applies the notion of consensus in an arbitrary manner. While the conservative modalities of the consensus argument appear to constrain the Court and allow considerable leeway for domestic authorities, the dynamic notions facilitate the development of European human rights standards, even if it may not be evidenced convincingly by the practices of the member states. The article argues that in its current state, without a foreseeable and disciplined methodology, the consensus inquiry is not capable of building a bridge between the margin of appreciation and the dynamic interpretation.
{"title":"European Consensus: A Conservative and a Dynamic Force in European Human Rights Jurisprudence","authors":"Eszter Polgári","doi":"10.1515/icl-2017-0091","DOIUrl":"https://doi.org/10.1515/icl-2017-0091","url":null,"abstract":"Abstract The European Court of Human Rights needs to find a balance between upholding diversity (and respecting sovereignty through the margin of appreciation doctrine) on the one hand, and the aspiration to set universal human rights standards, on the other. Responses to these opposing forces are reflected in various doctrines and methods of interpretation, judicial choices that often predetermine the outcome of a case. Through examples taken from the LGBT rights jurisprudence, the article explores how the competing notions of European consensus (a conservative one and a dynamic one) relate to other techniques of interpretation, and how they influence the decision-making of the Court. The article explains that the Court applies the notion of consensus in an arbitrary manner. While the conservative modalities of the consensus argument appear to constrain the Court and allow considerable leeway for domestic authorities, the dynamic notions facilitate the development of European human rights standards, even if it may not be evidenced convincingly by the practices of the member states. The article argues that in its current state, without a foreseeable and disciplined methodology, the consensus inquiry is not capable of building a bridge between the margin of appreciation and the dynamic interpretation.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"1 1","pages":"59 - 84"},"PeriodicalIF":0.2,"publicationDate":"2018-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82110519","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 Today, the Austrian Constitutional Court looks back on an eventful history. The Austrian model of constitutional adjudication attracted wide attention, in particular after World War II and proved to be a success story. Carefully managing both the influences of the ECHR and, most recently, those of European Union law, the Court has become an active player in the dialogue of the courts involved.
{"title":"Constitutional Jurisdiction in a Democracy Governed by the Rule of Law","authors":"Gerhart Holzinger","doi":"10.1515/icl-2018-0001","DOIUrl":"https://doi.org/10.1515/icl-2018-0001","url":null,"abstract":"Abstract Today, the Austrian Constitutional Court looks back on an eventful history. The Austrian model of constitutional adjudication attracted wide attention, in particular after World War II and proved to be a success story. Carefully managing both the influences of the ECHR and, most recently, those of European Union law, the Court has become an active player in the dialogue of the courts involved.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"35 1","pages":"1 - 17"},"PeriodicalIF":0.2,"publicationDate":"2018-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89733687","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 It is fully legitimate and permissible under international human rights law to limit the right to vote to the citizens of the State. The relationship between sovereignty, citizenship and the right to vote is to some extent self-evident and undramatic. However, the triangular relationship between the three concepts is an important background factor summarizing much of what States are and do, and therefore, it is necessary to make visible the self-sustaining nature of the triangle and explicate the three corners of the triangle by means of drafting history of the human rights conventions and case law from international and national court instances as well as by means of examples from national law, in this case drawn from the Nordic space. The point here is that although the various human rights conventions formulate a right to participation through elections, the normative powers exercised in relation to sovereignty, citizenship and the right to vote are held by the national law-maker, and they are not influenced much by international human rights law.
{"title":"Interdependency between Sovereignty, Citizenship and the Right to Vote","authors":"M. Suksi","doi":"10.1515/icl-2017-0086","DOIUrl":"https://doi.org/10.1515/icl-2017-0086","url":null,"abstract":"Abstract It is fully legitimate and permissible under international human rights law to limit the right to vote to the citizens of the State. The relationship between sovereignty, citizenship and the right to vote is to some extent self-evident and undramatic. However, the triangular relationship between the three concepts is an important background factor summarizing much of what States are and do, and therefore, it is necessary to make visible the self-sustaining nature of the triangle and explicate the three corners of the triangle by means of drafting history of the human rights conventions and case law from international and national court instances as well as by means of examples from national law, in this case drawn from the Nordic space. The point here is that although the various human rights conventions formulate a right to participation through elections, the normative powers exercised in relation to sovereignty, citizenship and the right to vote are held by the national law-maker, and they are not influenced much by international human rights law.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"19 1","pages":"19 - 58"},"PeriodicalIF":0.2,"publicationDate":"2018-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87059205","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 current Romanian constitutional system, established in 1991, has undergone numerous formal and informal developments in the last 25 years. The main issues that arose in the decade since the country’s adhesion to the European Union were the respect for the rule of law, independence of the judiciary and the fight against corruption. In this context, the Constitutional Court has been one of the central elements of the rule of law guarantee in Romania. This paper intends to present a critical overview of the actual role of the Constitutional Court in the Romanian constitutional system, in the different contexts that link the Court with ‘others’, ie mainly with State powers (the Court itself being and independent organ, placed outside the judicial power).
{"title":"The Constitutional Court and Others in Romanian Constitutionalism – 25 Years After","authors":"Bianca Selejan-Gut̗an","doi":"10.1515/icl-2017-0074","DOIUrl":"https://doi.org/10.1515/icl-2017-0074","url":null,"abstract":"Abstract The current Romanian constitutional system, established in 1991, has undergone numerous formal and informal developments in the last 25 years. The main issues that arose in the decade since the country’s adhesion to the European Union were the respect for the rule of law, independence of the judiciary and the fight against corruption. In this context, the Constitutional Court has been one of the central elements of the rule of law guarantee in Romania. This paper intends to present a critical overview of the actual role of the Constitutional Court in the Romanian constitutional system, in the different contexts that link the Court with ‘others’, ie mainly with State powers (the Court itself being and independent organ, placed outside the judicial power).","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"7 1","pages":"565 - 584"},"PeriodicalIF":0.2,"publicationDate":"2017-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90038273","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 Europe can be considered a sort of fortress of the protection of socio-economic rights. However, this bright scenario has been unsettled by the eruption of the Eurozone crisis, which has challenged the narrative of social Europe and swept away protections for social rights in Member States grappling with sovereign debt crises such as Greece, Portugal, Ireland, Cyprus, Latvia and Romania. In these countries, austerity measures led to persistent violations of social rights, under the external constraint of conditionality regimes which involved cuts in wages, pensions and welfare services. Consequently, austerity measures were challenged in domestic and European Courts and before the ECSR. In other words, there has been a ‘turn to the law’, in order to give concrete effect to the potential offered by the relevant legal instruments. What has been the general attitude of the Courts and quasi-judicial bodies to actions challenging austerity measures? Since the analysis of how the Courts and other human rights bodies manage the complex and controversial balance between austerity and social rights is an excellent ‘stress test’ to determine the ‘weight’ of the latter not only in the political debate, but also in the human rights discourse, this paper will focus on the ‘crisis cases’ in Europe, so as to shed light on the actual level of protection for social rights.
{"title":"Social Rights Protection in Europe in Times of Crisis: ‘A Tale of Two Cities’","authors":"A. Baraggia, Maria Elena Gennusa","doi":"10.1515/icl-2017-0071","DOIUrl":"https://doi.org/10.1515/icl-2017-0071","url":null,"abstract":"Abstract Europe can be considered a sort of fortress of the protection of socio-economic rights. However, this bright scenario has been unsettled by the eruption of the Eurozone crisis, which has challenged the narrative of social Europe and swept away protections for social rights in Member States grappling with sovereign debt crises such as Greece, Portugal, Ireland, Cyprus, Latvia and Romania. In these countries, austerity measures led to persistent violations of social rights, under the external constraint of conditionality regimes which involved cuts in wages, pensions and welfare services. Consequently, austerity measures were challenged in domestic and European Courts and before the ECSR. In other words, there has been a ‘turn to the law’, in order to give concrete effect to the potential offered by the relevant legal instruments. What has been the general attitude of the Courts and quasi-judicial bodies to actions challenging austerity measures? Since the analysis of how the Courts and other human rights bodies manage the complex and controversial balance between austerity and social rights is an excellent ‘stress test’ to determine the ‘weight’ of the latter not only in the political debate, but also in the human rights discourse, this paper will focus on the ‘crisis cases’ in Europe, so as to shed light on the actual level of protection for social rights.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"8 1","pages":"479 - 506"},"PeriodicalIF":0.2,"publicationDate":"2017-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88014232","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 construction of names and the use of nobility titles is not regulated by European Union law. Yet the Court of Justice of the EU has had to deal with such issues on various occasions where national rules on names or titles had to be contrasted with the EU law on equal treatment, Union citizenship and free movement and residence. Rules on names fall essentially within the competence of the member states, but the states have to regard EU law when exercising this competence. Our paper undertakes to analyse this issue in light of a recent relevant judgment, the Bogendorff von Wolffersdorff case, having regard also to the Court’s reasoning regarding the national constitutional identity clause [Art 4 (2)TEU]. We argue – inter alia – that the Court of Justice decided in this judgment not to favour the rights of a free-moving EU citizen (even if the judgment admittedly affects only a limited circle of individuals) and put national constitutional identity first, yet the way in which the identity clause was used by the Court is also debatable in our view.
欧盟法律对姓名的构成和贵族头衔的使用没有规定。然而，欧盟法院不得不在各种场合处理这类问题，这些场合必须将有关姓名或头衔的国家规则与欧盟关于平等待遇、联盟公民身份、自由流动和居住的法律进行对比。关于名称的规则基本上属于成员国的权限范围，但各国在行使这一权限时必须考虑欧盟法律。我们的论文将根据最近的一项相关判决，即Bogendorff von Wolffersdorff案，对这一问题进行分析，同时考虑到法院对国家宪法认同条款(第4(2)条)的推理。我们认为-除其他外-法院在这一判决中决定不支持自由流动的欧盟公民的权利(即使判决承认只影响到有限的个人圈子)，并将国家宪法身份放在首位，但在我们看来，法院使用身份条款的方式也值得商榷。
{"title":"What’s in a Name? Equal Treatment, Union Citizens and National Rules on Names and Titles","authors":"Á. Mohay, N. Tóth","doi":"10.1515/ICL-2017-0075","DOIUrl":"https://doi.org/10.1515/ICL-2017-0075","url":null,"abstract":"Abstract The construction of names and the use of nobility titles is not regulated by European Union law. Yet the Court of Justice of the EU has had to deal with such issues on various occasions where national rules on names or titles had to be contrasted with the EU law on equal treatment, Union citizenship and free movement and residence. Rules on names fall essentially within the competence of the member states, but the states have to regard EU law when exercising this competence. Our paper undertakes to analyse this issue in light of a recent relevant judgment, the Bogendorff von Wolffersdorff case, having regard also to the Court’s reasoning regarding the national constitutional identity clause [Art 4 (2)TEU]. We argue – inter alia – that the Court of Justice decided in this judgment not to favour the rights of a free-moving EU citizen (even if the judgment admittedly affects only a limited circle of individuals) and put national constitutional identity first, yet the way in which the identity clause was used by the Court is also debatable in our view.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"85 1","pages":"585 - 602"},"PeriodicalIF":0.2,"publicationDate":"2017-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83991498","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 September 2014, the deadlock over election reforms in Hong Kong sparked off a mass civil disobedience occupy movement. This political dispute eventually reached the legal arena after the filing of injunction applications before the courts of Hong Kong to clear the protest sites. This article aims to discuss the courts’ approach towards the adjudication of these injunction cases. In particular, this article will review: (a) the appropriateness of the scope of the interim injunctions granted to protect the plaintiff’s personal rights under the tort of public nuisance; (b) the function of the police in implementing the injunction orders; (c) the position the courts should adopt in defending individual rights of the plaintiffs if a similar remedy is already available under the statute; and (d) the way courts should reconcile competing claims and protect both the unidentified protestors’ human rights and the private rights of the plaintiffs. The article maintains that the injunction cases have set rather dangerous precedents regarding the protection of fundamental rights in Hong Kong in cases of public order involving protection of private rights. The same analysis leads to the conclusion that in a democratic society, the courts have a duty to find the balance between the protection of fundamental human rights and private rights under tort of nuisance, while also observing significant procedural rules.
{"title":"The Hong Kong Occupy Injunction Cases","authors":"F. Lone","doi":"10.1515/ICL-2017-0072","DOIUrl":"https://doi.org/10.1515/ICL-2017-0072","url":null,"abstract":"Abstract In September 2014, the deadlock over election reforms in Hong Kong sparked off a mass civil disobedience occupy movement. This political dispute eventually reached the legal arena after the filing of injunction applications before the courts of Hong Kong to clear the protest sites. This article aims to discuss the courts’ approach towards the adjudication of these injunction cases. In particular, this article will review: (a) the appropriateness of the scope of the interim injunctions granted to protect the plaintiff’s personal rights under the tort of public nuisance; (b) the function of the police in implementing the injunction orders; (c) the position the courts should adopt in defending individual rights of the plaintiffs if a similar remedy is already available under the statute; and (d) the way courts should reconcile competing claims and protect both the unidentified protestors’ human rights and the private rights of the plaintiffs. The article maintains that the injunction cases have set rather dangerous precedents regarding the protection of fundamental rights in Hong Kong in cases of public order involving protection of private rights. The same analysis leads to the conclusion that in a democratic society, the courts have a duty to find the balance between the protection of fundamental human rights and private rights under tort of nuisance, while also observing significant procedural rules.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"41 1 1","pages":"507 - 539"},"PeriodicalIF":0.2,"publicationDate":"2017-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89239270","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 Developing international constitutional law, apart from difficulties concerning its definition, faces certain well-known problems – ranging from its pluralistic mode of creation to its enforceability, but has also to scrutinise its aims. If its aim is to at least provide a global reference framework for constitutional principles and concepts – since serving as a common set of values does reach its own limits rather quickly eg concerning fundamental issues such as the role of women in society or sustainability – it has to be inclusive in nature. Certain areas of international law, such as human rights – via Universal Periodic Review or treaty monitoring bodies such as CAT – or WTO law interact closely with national constitutional and/or regional international law (ECHR) and or regional constitutional/public law (eg EU Law). Therefore, their ideas may be taken up – voluntarily through courts or academia, due to examination mechanisms through governments or tribunals – be modified (if necessary to fit into a national constitutional system or supranational constitutional framework) and transported back into the global community (eg as feedback within a WTO case or an UPR). This, however, is event driven. Therefore, it cannot be a carefully conceptualised coherent law such as national constitutions. National (and land constitutions, which may also provide important ideals) constitutions in general serve several functions: as set of values eg in the area of fundamental rights, for structuring the state functions by setting up institutions and modes of operation, and as reference for the interpretation of norms eg in court cases. Their overall purpose is to provide a coherent inner regime. Nevertheless, by promoting certain selected ‘institutionalisable’ constitutional ideas (for example through the rule of law initiative) we can aim to strive from a fragmented towards a more coherent global framework.
{"title":"International Constitutional Law – Inclusive, but Still Selective?","authors":"Judith Köbler","doi":"10.1515/icl-2017-0020","DOIUrl":"https://doi.org/10.1515/icl-2017-0020","url":null,"abstract":"Abstract Developing international constitutional law, apart from difficulties concerning its definition, faces certain well-known problems – ranging from its pluralistic mode of creation to its enforceability, but has also to scrutinise its aims. If its aim is to at least provide a global reference framework for constitutional principles and concepts – since serving as a common set of values does reach its own limits rather quickly eg concerning fundamental issues such as the role of women in society or sustainability – it has to be inclusive in nature. Certain areas of international law, such as human rights – via Universal Periodic Review or treaty monitoring bodies such as CAT – or WTO law interact closely with national constitutional and/or regional international law (ECHR) and or regional constitutional/public law (eg EU Law). Therefore, their ideas may be taken up – voluntarily through courts or academia, due to examination mechanisms through governments or tribunals – be modified (if necessary to fit into a national constitutional system or supranational constitutional framework) and transported back into the global community (eg as feedback within a WTO case or an UPR). This, however, is event driven. Therefore, it cannot be a carefully conceptualised coherent law such as national constitutions. National (and land constitutions, which may also provide important ideals) constitutions in general serve several functions: as set of values eg in the area of fundamental rights, for structuring the state functions by setting up institutions and modes of operation, and as reference for the interpretation of norms eg in court cases. Their overall purpose is to provide a coherent inner regime. Nevertheless, by promoting certain selected ‘institutionalisable’ constitutional ideas (for example through the rule of law initiative) we can aim to strive from a fragmented towards a more coherent global framework.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":"72 1","pages":"387 - 408"},"PeriodicalIF":0.2,"publicationDate":"2017-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85576742","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：