Increasingly, international investment agreements (IIAs) and investor–state dispute settlement (ISDS) mechanisms relate to, and at times conflict with, constitutional rights, principles, and rules. Because of this interrelationship, since 2017, constitutional courts in several regions of the world have had to examine constitutional charges brought against IIAs when conducting their ex ante constitutional review of negotiated IIAs. In order to fill significant gaps in the current literature on the subject, this article conducts an in-depth analysis of the judgment of the Colombian Constitutional Court (CCC) which examined the constitutionality of the negotiated bilateral investment treaty (BIT) between Colombia and France (“the investment Agreement”). This article demonstrates that, while the CCC’s judgment has several positive aspects, it also has some significant shortcomings. The Court set the basis for a stricter ex ante constitutional review of IIAs, specifically the rationales, methods, and grounds for review that constitutional courts can use to conduct such a review. The Court also shed light on the methodology to interpret IIAs, the conditional constitutionality approach, and orders that constitutional courts can adopt in this type of review. However, this article demonstrates that the Court’s review over many aspects of the three sets of elements that it covered—i.e. the investment Agreement as a whole and the Agreement’s provisions on standards of treatment and ISDS, was not thorough or it applied a looser test than its reasonableness test. This research also shows that the Court did not engage in review of the investment Agreement concerning its compatibility with economic, social, and cultural rights.
{"title":"Constitutional review of negotiated international investment agreements: Strengths and shortcomings of the Colombian Constitutional Court’s approach","authors":"J. C. Ochoa-Sánchez","doi":"10.1093/icon/moac037","DOIUrl":"https://doi.org/10.1093/icon/moac037","url":null,"abstract":"\u0000 Increasingly, international investment agreements (IIAs) and investor–state dispute settlement (ISDS) mechanisms relate to, and at times conflict with, constitutional rights, principles, and rules. Because of this interrelationship, since 2017, constitutional courts in several regions of the world have had to examine constitutional charges brought against IIAs when conducting their ex ante constitutional review of negotiated IIAs. In order to fill significant gaps in the current literature on the subject, this article conducts an in-depth analysis of the judgment of the Colombian Constitutional Court (CCC) which examined the constitutionality of the negotiated bilateral investment treaty (BIT) between Colombia and France (“the investment Agreement”). This article demonstrates that, while the CCC’s judgment has several positive aspects, it also has some significant shortcomings. The Court set the basis for a stricter ex ante constitutional review of IIAs, specifically the rationales, methods, and grounds for review that constitutional courts can use to conduct such a review. The Court also shed light on the methodology to interpret IIAs, the conditional constitutionality approach, and orders that constitutional courts can adopt in this type of review. However, this article demonstrates that the Court’s review over many aspects of the three sets of elements that it covered—i.e. the investment Agreement as a whole and the Agreement’s provisions on standards of treatment and ISDS, was not thorough or it applied a looser test than its reasonableness test. This research also shows that the Court did not engage in review of the investment Agreement concerning its compatibility with economic, social, and cultural rights.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42340058","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Reflecting on the ethical commitments of our role","authors":"Thomas Bustamante","doi":"10.1093/icon/moac042","DOIUrl":"https://doi.org/10.1093/icon/moac042","url":null,"abstract":"","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48826719","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Euratom Treaty is one of the EU Treaties. It was adopted already in 1957, but unlike the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) it has not been amended in substance. The article has two aims, which are analyzed through the lens of historical institutionalism, an approach characterized by its focus on the effects of institutions over time. First, it states and discusses some possible reasons as to why the Euratom Treaty has not been revised. Second, it shows that although the Treaty has not been formally amended by treaty revision, an incremental gradual change has occurred anyway through displacement, layering, drift, conversion, and exhaustion. This change is more than profound: it provides the Euratom with a new rationale.
{"title":"Explaining continuity and change: The case of the Euratom Treaty","authors":"Anna Södersten","doi":"10.1093/icon/moac041","DOIUrl":"https://doi.org/10.1093/icon/moac041","url":null,"abstract":"\u0000 The Euratom Treaty is one of the EU Treaties. It was adopted already in 1957, but unlike the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) it has not been amended in substance. The article has two aims, which are analyzed through the lens of historical institutionalism, an approach characterized by its focus on the effects of institutions over time. First, it states and discusses some possible reasons as to why the Euratom Treaty has not been revised. Second, it shows that although the Treaty has not been formally amended by treaty revision, an incremental gradual change has occurred anyway through displacement, layering, drift, conversion, and exhaustion. This change is more than profound: it provides the Euratom with a new rationale.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46299412","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Altneueland – European Law Open published by Cambridge University Press: Welcome","authors":"","doi":"10.1093/icon/moac050","DOIUrl":"https://doi.org/10.1093/icon/moac050","url":null,"abstract":"","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41668259","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Intense forms of judicial activism have emerged in Latin America in the last three decades. Judges dictated structural remedies decisions (SRDs) to create, design, and implement public policies to redress structural human rights violations, implementing permanent judicial monitoring of the policy process. In a region marked by judicial instability, SRDs are risky options for judges. They can be seen as strong challenges to the government and, thus, prompt retaliation. They can also damage judges’ reputations as they might be strongly criticized by influential conservative groups of society that oppose progressive structural reforms. What drives judges to pursue or avoid this kind of risky activism? I propose the equilibrist approach, an alternative model to standard accounts explaining judicial behavior in Latin America. It incorporates the legitimacy-building dimension of the strategic game and predicts some level of assertiveness but one that is careful about the preferences of elites, the mass public, and opinion leaders. I use the institutional yet fragile Argentine Supreme Court to test the model, as it decided several SDRs in the early 2000s.
{"title":"Judges as equilibrists: Explaining judicial activism in Latin America","authors":"G. Pereira","doi":"10.1093/icon/moac044","DOIUrl":"https://doi.org/10.1093/icon/moac044","url":null,"abstract":"\u0000 Intense forms of judicial activism have emerged in Latin America in the last three decades. Judges dictated structural remedies decisions (SRDs) to create, design, and implement public policies to redress structural human rights violations, implementing permanent judicial monitoring of the policy process. In a region marked by judicial instability, SRDs are risky options for judges. They can be seen as strong challenges to the government and, thus, prompt retaliation. They can also damage judges’ reputations as they might be strongly criticized by influential conservative groups of society that oppose progressive structural reforms. What drives judges to pursue or avoid this kind of risky activism? I propose the equilibrist approach, an alternative model to standard accounts explaining judicial behavior in Latin America. It incorporates the legitimacy-building dimension of the strategic game and predicts some level of assertiveness but one that is careful about the preferences of elites, the mass public, and opinion leaders. I use the institutional yet fragile Argentine Supreme Court to test the model, as it decided several SDRs in the early 2000s.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42095475","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article explores the phenomenon of informal constitutional change with a particular focus on the role played by intergovernmental agreements (IGAs) concluded between members of a federation. It has two objectives. The first is to add IGAs to the catalogue of methods through which constitutions are altered without recourse to formal amendment procedures. Using Canada as a case study, we highlight a paradox: by rendering unconstitutional certain legislative initiatives meant to circumvent formal rules of constitutional amendment, courts are actually inviting political actors, notably the executive branches, to resort to even more fluid and informal methods of altering the Constitution. Second, we bring the concept of “para-constitutionality” into the broader literature on informal constitutional change. Para-constitutionality captures two distinct dimensions of informal constitutional change which are often conflated. “Para” in the Greek sense signifies “circumvention.” The focus here is on effectivity, on the impact of mechanisms (such as IGAs) on the overall constitutional order. By contrast, “para” in the Latin sense means “against.” It is concerned with constitutional (in)validity. We seek to underscore that even when strategies are not found to be unconstitutional, they may nevertheless have a transformative impact on the overall federal architecture. In conclusion, we suggest that an implicit commitment to intergovernmental transactions and compromise, both inherent to federalism, may explain judicial benevolence in the face of negotiated para-constitutional engineering mechanisms, in contrast to unilateral legislative attempts at informal constitutional change.
{"title":"Para-constitutional engineering and federalism: Informal constitutional change through intergovernmental agreements","authors":"J. Poirier, Joan M. Hartery","doi":"10.1093/icon/moac040","DOIUrl":"https://doi.org/10.1093/icon/moac040","url":null,"abstract":"\u0000 This article explores the phenomenon of informal constitutional change with a particular focus on the role played by intergovernmental agreements (IGAs) concluded between members of a federation. It has two objectives. The first is to add IGAs to the catalogue of methods through which constitutions are altered without recourse to formal amendment procedures. Using Canada as a case study, we highlight a paradox: by rendering unconstitutional certain legislative initiatives meant to circumvent formal rules of constitutional amendment, courts are actually inviting political actors, notably the executive branches, to resort to even more fluid and informal methods of altering the Constitution. Second, we bring the concept of “para-constitutionality” into the broader literature on informal constitutional change. Para-constitutionality captures two distinct dimensions of informal constitutional change which are often conflated. “Para” in the Greek sense signifies “circumvention.” The focus here is on effectivity, on the impact of mechanisms (such as IGAs) on the overall constitutional order. By contrast, “para” in the Latin sense means “against.” It is concerned with constitutional (in)validity. We seek to underscore that even when strategies are not found to be unconstitutional, they may nevertheless have a transformative impact on the overall federal architecture. In conclusion, we suggest that an implicit commitment to intergovernmental transactions and compromise, both inherent to federalism, may explain judicial benevolence in the face of negotiated para-constitutional engineering mechanisms, in contrast to unilateral legislative attempts at informal constitutional change.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49262742","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Constitutional change can be produced through judicial interpretation when a particular dictum becomes informally entrenched and creates a new constitutional meaning without the need for a formal amendment. However, scholarship has not yet scrutinized the form of legal reasoning that may be used to push for such a change. The purpose of this article is to analyze the role of expressivism in justifying constitutional change through judicial interpretation. For this purpose, I have developed the expressivist framework into what I call “operationalized expressivism,” which refers to constitutional courts interpreting references to constitutional identity in the constitution such as to create a juridical effect. I then use the dissenting opinion in the Indonesian LGBT case as a case study of how operationalized expressivism can initiate a constitutional change. I have selected this particular opinion because of its potential to radically transform the constitutional landscape of Indonesia, as the dissenting judges have declared the Indonesian Constitution as a “Godly” Constitution that requires all laws to be consistent with religious values.
{"title":"Constitutional identity, expressivism, and constitutional change through judicial interpretation: The Indonesian LGBT case as a case study","authors":"Ignatius Yordan Nugraha","doi":"10.1093/icon/moac045","DOIUrl":"https://doi.org/10.1093/icon/moac045","url":null,"abstract":"\u0000 Constitutional change can be produced through judicial interpretation when a particular dictum becomes informally entrenched and creates a new constitutional meaning without the need for a formal amendment. However, scholarship has not yet scrutinized the form of legal reasoning that may be used to push for such a change. The purpose of this article is to analyze the role of expressivism in justifying constitutional change through judicial interpretation. For this purpose, I have developed the expressivist framework into what I call “operationalized expressivism,” which refers to constitutional courts interpreting references to constitutional identity in the constitution such as to create a juridical effect. I then use the dissenting opinion in the Indonesian LGBT case as a case study of how operationalized expressivism can initiate a constitutional change. I have selected this particular opinion because of its potential to radically transform the constitutional landscape of Indonesia, as the dissenting judges have declared the Indonesian Constitution as a “Godly” Constitution that requires all laws to be consistent with religious values.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":"1 1","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41474971","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"“Scholarship is about knowledge, not justice”","authors":"J. Komárek","doi":"10.1093/icon/moac043","DOIUrl":"https://doi.org/10.1093/icon/moac043","url":null,"abstract":"","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47121215","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Despite its global proliferation, there is no standard formulation for proportionality analysis. The result is debate over the optimal formulation and application of the doctrine and the ramifications of adopting different versions. A subset of this debate relates to which element of the doctrine provides rights with greater protection against competing public interests. Although this dispute is essentially empirical, arguments on the matter remain strictly theoretical. This study presents the first experimental analysis of the effects of specific subtests of proportionality analysis on the level of protection afforded to rights. We find strong evidence that applying proportionality in terms of the necessity test—whether there are less restrictive means—results in greater protection of rights in policy decisions than does applying proportionality in terms of the strict proportionality test—balancing the benefit against the harm. The findings suggest that including a necessity component within the proportionality doctrine, and emphasizing it as a central stage of the analysis, can enhance the protection of rights in decisions regarding rights-restricting policy.
{"title":"Necessity or balancing: The protection of rights under different proportionality tests—Experimental evidence","authors":"Talya Steiner, Liat Netzer, R. Sulitzeanu-Kenan","doi":"10.1093/icon/moac036","DOIUrl":"https://doi.org/10.1093/icon/moac036","url":null,"abstract":"\u0000 Despite its global proliferation, there is no standard formulation for proportionality analysis. The result is debate over the optimal formulation and application of the doctrine and the ramifications of adopting different versions. A subset of this debate relates to which element of the doctrine provides rights with greater protection against competing public interests. Although this dispute is essentially empirical, arguments on the matter remain strictly theoretical. This study presents the first experimental analysis of the effects of specific subtests of proportionality analysis on the level of protection afforded to rights. We find strong evidence that applying proportionality in terms of the necessity test—whether there are less restrictive means—results in greater protection of rights in policy decisions than does applying proportionality in terms of the strict proportionality test—balancing the benefit against the harm. The findings suggest that including a necessity component within the proportionality doctrine, and emphasizing it as a central stage of the analysis, can enhance the protection of rights in decisions regarding rights-restricting policy.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46853546","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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