Abstract This exploratory article focuses on the receiving end of the margin of appreciation doctrine of the European Court of Human Rights (ECtHR), that is to say, the response of national-level legislators and courts to ECtHR case law involving other states parties, that grants national authorities a wide margin of appreciation. The paper explores the risk that national authorities might misinterpret the margin of appreciation in such cases as a marker of human rights clearance of a rights-restrictive practice as such or as a prompt for domestic courts toward deference in their relationship with the legislative and executive powers. The paper finds anecdotal evidence of such misinterpretation by domestic legislators in the reception of SAS v. France. In addition, an examination of recent fundamental rights case law of the Belgian Constitutional Court illustrates the existence of a problem of misunderstanding the margin of appreciation at the level of domestic courts.
{"title":"Misunderstanding the margin? The reception of the ECtHR’s margin of appreciation at the national level","authors":"Eva Brems","doi":"10.1093/icon/moad065","DOIUrl":"https://doi.org/10.1093/icon/moad065","url":null,"abstract":"Abstract This exploratory article focuses on the receiving end of the margin of appreciation doctrine of the European Court of Human Rights (ECtHR), that is to say, the response of national-level legislators and courts to ECtHR case law involving other states parties, that grants national authorities a wide margin of appreciation. The paper explores the risk that national authorities might misinterpret the margin of appreciation in such cases as a marker of human rights clearance of a rights-restrictive practice as such or as a prompt for domestic courts toward deference in their relationship with the legislative and executive powers. The paper finds anecdotal evidence of such misinterpretation by domestic legislators in the reception of SAS v. France. In addition, an examination of recent fundamental rights case law of the Belgian Constitutional Court illustrates the existence of a problem of misunderstanding the margin of appreciation at the level of domestic courts.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135805113","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}
Abstract Domestic courts in various countries have begun to scrutinize the political branches’ responses to climate change. A central argument against court interventions pushing an individual state’s climate actions is that the individual state cannot effectively promote climate protection, and, instead, will suffer economic disadvantages in global competition. The article counters this criticism with the thesis that judicial interventions contribute to an effective realization of climate protection if they strengthen international cooperation. To substantiate the thesis, the article draws on the economic analysis of law to examine states’ decision-making rationalities for entering international agreements. It then analyzes how judicial interventions may influence these parameters, with a particular focus on the recent climate decision of the German Constitutional Court, and embeds the domestic court decisions in an emerging public relations law that closely interlinks constitutional and international climate law.
{"title":"Domestic courts as guarantors of international climate cooperation: Insights from the German Constitutional Court’s climate decision","authors":"Jannika Jahn","doi":"10.1093/icon/moad069","DOIUrl":"https://doi.org/10.1093/icon/moad069","url":null,"abstract":"Abstract Domestic courts in various countries have begun to scrutinize the political branches’ responses to climate change. A central argument against court interventions pushing an individual state’s climate actions is that the individual state cannot effectively promote climate protection, and, instead, will suffer economic disadvantages in global competition. The article counters this criticism with the thesis that judicial interventions contribute to an effective realization of climate protection if they strengthen international cooperation. To substantiate the thesis, the article draws on the economic analysis of law to examine states’ decision-making rationalities for entering international agreements. It then analyzes how judicial interventions may influence these parameters, with a particular focus on the recent climate decision of the German Constitutional Court, and embeds the domestic court decisions in an emerging public relations law that closely interlinks constitutional and international climate law.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135805131","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":"Martin Krygier, Review of Tímea Drinóczi & Agnieszka Bień-Kacała. Illiberal Constitutionalism in Poland and Hungary: The Deterioration of Democracy, Misuse of Human Rights and Abuse of the Rule of Law","authors":"M. Krygier","doi":"10.1093/icon/moad060","DOIUrl":"https://doi.org/10.1093/icon/moad060","url":null,"abstract":"","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46565195","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}
Journal Article Leena Grover, Review of Emmanuel H.D. De Groof and Micha Wiebusch, International Law and Transitional Governance: Critical Perspectives Get access Emmanuel H.D. De Groof and Micha Wiebusch, eds. International Law and Transitional Governance: Critical Perspectives. Routledge, 2020. Pp. 186. £96.00. ISBN: 9780367178109. Leena Grover Leena Grover Tilburg University, Tilburg, The Netherlands Email:L.K.Grover@tilburguniversity.edu Search for other works by this author on: Oxford Academic Google Scholar International Journal of Constitutional Law, moad059, https://doi.org/10.1093/icon/moad059 Published: 20 June 2023
{"title":"Leena Grover, Review of Emmanuel H.D. De Groof and Micha Wiebusch, International Law and Transitional Governance: Critical Perspectives","authors":"Leena Grover","doi":"10.1093/icon/moad059","DOIUrl":"https://doi.org/10.1093/icon/moad059","url":null,"abstract":"Journal Article Leena Grover, Review of Emmanuel H.D. De Groof and Micha Wiebusch, International Law and Transitional Governance: Critical Perspectives Get access Emmanuel H.D. De Groof and Micha Wiebusch, eds. International Law and Transitional Governance: Critical Perspectives. Routledge, 2020. Pp. 186. £96.00. ISBN: 9780367178109. Leena Grover Leena Grover Tilburg University, Tilburg, The Netherlands Email:L.K.Grover@tilburguniversity.edu Search for other works by this author on: Oxford Academic Google Scholar International Journal of Constitutional Law, moad059, https://doi.org/10.1093/icon/moad059 Published: 20 June 2023","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135187837","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":"Free speech in an age of democratic backsliding","authors":"Thomas M. Keck","doi":"10.1093/icon/moad058","DOIUrl":"https://doi.org/10.1093/icon/moad058","url":null,"abstract":"","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42980079","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":"Matthew J. Nelson, Reviw of Moeen Cheema, Courting Constitutionalism: The Politics of Public Law and Judicial Review in Pakistan","authors":"M. Nelson","doi":"10.1093/icon/moad057","DOIUrl":"https://doi.org/10.1093/icon/moad057","url":null,"abstract":"","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47536763","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 Symposium offers a critical exploration of how the identities of trans people are translated, recognized, and considered in the law. In so doing, it sheds light on the often-difficult coexistence between the lived experiences of trans people and their legal regulation. The main argument that the Symposium advances is that multiple structural—legal, social, and cultural—factors influence the evolution of rights pertaining to gender identity. Identity recognition—the articles show—is also key to accessing multiple other rights and benefits in society. The Symposium includes five articles, all addressing the recognition of diversity and the construction of gender in law, focusing on a variety of jurisdictions and drawing on different disciplinary perspectives. Showing a multifaceted approach to one of the most topical public law challenges, this Symposium discusses the limits and the possibilities of law in advancing the rights of trans people.
{"title":"Introduction: Trans identities and the law","authors":"Daniela Alaattinoğlu, A. Margaria, Stefano Osella","doi":"10.1093/icon/moad054","DOIUrl":"https://doi.org/10.1093/icon/moad054","url":null,"abstract":"\u0000 This Symposium offers a critical exploration of how the identities of trans people are translated, recognized, and considered in the law. In so doing, it sheds light on the often-difficult coexistence between the lived experiences of trans people and their legal regulation. The main argument that the Symposium advances is that multiple structural—legal, social, and cultural—factors influence the evolution of rights pertaining to gender identity. Identity recognition—the articles show—is also key to accessing multiple other rights and benefits in society. The Symposium includes five articles, all addressing the recognition of diversity and the construction of gender in law, focusing on a variety of jurisdictions and drawing on different disciplinary perspectives. Showing a multifaceted approach to one of the most topical public law challenges, this Symposium discusses the limits and the possibilities of law in advancing the rights of trans people.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41873238","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 examines the construction of trans identity in Hong Kong law and cinema. By juxtaposing the key Hong Kong court cases on trans rights and some recent feature films on trans experience, it argues that film can reproduce and reinforce the understanding of identity in the court cases, and that they can unwittingly perpetuate the dynamic of exclusion enacted in those cases. Law and popular film may seem to be distinct discursive domains, but their constructions of trans identity are in fact intertwined. The article contends that to break out of these limiting identity formulations, we need to move beyond the dominant imaginaries of law and popular culture. It offers one way of doing so by turning to independent queer filmmaking as a forum for articulating and recognizing alternative trans subjectivities.
{"title":"Law, film, and trans identity in Hong Kong","authors":"M. Wan","doi":"10.1093/icon/moad052","DOIUrl":"https://doi.org/10.1093/icon/moad052","url":null,"abstract":"\u0000 This article examines the construction of trans identity in Hong Kong law and cinema. By juxtaposing the key Hong Kong court cases on trans rights and some recent feature films on trans experience, it argues that film can reproduce and reinforce the understanding of identity in the court cases, and that they can unwittingly perpetuate the dynamic of exclusion enacted in those cases. Law and popular film may seem to be distinct discursive domains, but their constructions of trans identity are in fact intertwined. The article contends that to break out of these limiting identity formulations, we need to move beyond the dominant imaginaries of law and popular culture. It offers one way of doing so by turning to independent queer filmmaking as a forum for articulating and recognizing alternative trans subjectivities.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48225164","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}
In recent years, increasing numbers of jurisdictions are abolishing sterilization requirements for legal gender recognition and are introducing self-declared change of legal gender. The abolition of this requirement leads to a change in the reproductive capacities of legal men and legal women, enabling legal men to become pregnant and to give birth, and legal women to beget children. The change in the reproductive capacities of the legal genders leads to biopolitical questions about how states do and should govern trans reproduction after decades of state-regulated sterilization. This article uses the situation in Norway to explore the regulation of trans reproduction and aims to explain why trans people’s reproductive rights are lesser than those of cis people. It first investigates the Norwegian regulation of medically assisted reproduction and how it applies to people who have changed their legal gender. It shows that trans people are excluded from accessing medically assisted reproduction because their legal gender does not fit the conceptions of reproduction and gender under the Norwegian Biotechnology Act. Second, the article explores why trans people’s reproductive rights are limited, and argues that the law is based on cis-normative assumptions about reproduction, pregnancy, and the desire to become pregnant. Such assumptions, it is argued, permeate the law and lead to discrimination against trans people. The Norwegian legislature has not given any reasons as to why trans people’s reproductive rights are limited. The article demonstrates that although the sterilization requirement for legal gender recognition is abolished, the law continues to concentrate on cis realities and to restrict trans people’s ability to form a family with children.
{"title":"Trans reproduction: Continuity, cis-normativity, and trans inequality in law","authors":"A. Sørlie","doi":"10.1093/icon/moad055","DOIUrl":"https://doi.org/10.1093/icon/moad055","url":null,"abstract":"\u0000 In recent years, increasing numbers of jurisdictions are abolishing sterilization requirements for legal gender recognition and are introducing self-declared change of legal gender. The abolition of this requirement leads to a change in the reproductive capacities of legal men and legal women, enabling legal men to become pregnant and to give birth, and legal women to beget children. The change in the reproductive capacities of the legal genders leads to biopolitical questions about how states do and should govern trans reproduction after decades of state-regulated sterilization. This article uses the situation in Norway to explore the regulation of trans reproduction and aims to explain why trans people’s reproductive rights are lesser than those of cis people. It first investigates the Norwegian regulation of medically assisted reproduction and how it applies to people who have changed their legal gender. It shows that trans people are excluded from accessing medically assisted reproduction because their legal gender does not fit the conceptions of reproduction and gender under the Norwegian Biotechnology Act. Second, the article explores why trans people’s reproductive rights are limited, and argues that the law is based on cis-normative assumptions about reproduction, pregnancy, and the desire to become pregnant. Such assumptions, it is argued, permeate the law and lead to discrimination against trans people. The Norwegian legislature has not given any reasons as to why trans people’s reproductive rights are limited. The article demonstrates that although the sterilization requirement for legal gender recognition is abolished, the law continues to concentrate on cis realities and to restrict trans people’s ability to form a family with children.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45558171","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}
Gender equality matters in the global public law academy for at least three reasons: the production of diverse scholarship, and substantive equality of opportunity for, and the equal exercise of social power by, female-identifying scholars. And while the global public law academy is in many ways becoming more diverse and inclusive, a great deal of work remains to be done to achieve true gender equality, especially after COVID-19, given its impact on geographic and gender (in)equality. In this article, we examine one important dimension to gender equality in the global public law academy: the degree to which articles by female-identifying scholars are cited at rates comparable to those authored by male-identifying scholars. To do so, we construct a unique database of articles published and cited within I•CON itself and use a variety of empirical techniques to analyze this data. Doing so, we find a clear pattern of gendered citation in global public law: while 37% of I•CON articles are authored by at least one female, only 25% of citations include at least one female author. We explore a variety of gendered and non-gendered explanations for the pattern. Perhaps our most striking finding is that male-author teams cite female authors at lower rates than author teams that have at least one female author, an effect that persists even when we account for self-citation, time trends, and the reputation of the cited authors. Notably, female authors cite female scholars at about the same rate as which they are published; the gender citation gap appears to be driven by the citation practices of male scholars alone. This finding suggests that implicit bias in citation, especially by male authors, cannot be ruled out. We therefore explore potential gender-conscious responses to the phenomenon.
{"title":"Unsexing citation: Closing the gender gap in global public law","authors":"Rosalind Dixon, Mila Versteeg","doi":"10.1093/icon/moad035","DOIUrl":"https://doi.org/10.1093/icon/moad035","url":null,"abstract":"\u0000 Gender equality matters in the global public law academy for at least three reasons: the production of diverse scholarship, and substantive equality of opportunity for, and the equal exercise of social power by, female-identifying scholars. And while the global public law academy is in many ways becoming more diverse and inclusive, a great deal of work remains to be done to achieve true gender equality, especially after COVID-19, given its impact on geographic and gender (in)equality. In this article, we examine one important dimension to gender equality in the global public law academy: the degree to which articles by female-identifying scholars are cited at rates comparable to those authored by male-identifying scholars. To do so, we construct a unique database of articles published and cited within I•CON itself and use a variety of empirical techniques to analyze this data. Doing so, we find a clear pattern of gendered citation in global public law: while 37% of I•CON articles are authored by at least one female, only 25% of citations include at least one female author. We explore a variety of gendered and non-gendered explanations for the pattern. Perhaps our most striking finding is that male-author teams cite female authors at lower rates than author teams that have at least one female author, an effect that persists even when we account for self-citation, time trends, and the reputation of the cited authors. Notably, female authors cite female scholars at about the same rate as which they are published; the gender citation gap appears to be driven by the citation practices of male scholars alone. This finding suggests that implicit bias in citation, especially by male authors, cannot be ruled out. We therefore explore potential gender-conscious responses to the phenomenon.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48105388","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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