International Constitutional Law Research Articles

Los derechos económicos sociales y culturales en el texto de la Constitución y en la jurisprudencia del Tribunal Constitucional

El presente artículo versa sobre la presencia de los derechos económicos sociales y culturales (DESC) en la Constitución y en la jurisprudencia constitucional. Así, tras abordar su naturaleza, el rol estatal respecto de su preservación, su exigibilidad y su relación con otros derechos fundamentales, entre otros importantes aspectos, intenta responder si en el tratamiento de los DESC en nuestro país se ha producido una internacionalización del derecho constitucional o más bien una constitucionalización del derecho internacional.

Habermas’s Understanding of Cosmopolitanism and the Constitutionalization of International Law

Habermas’s Understanding of Cosmopolitanism and the Constitutionalization of International Law

<b> Os caminhos fragmentados da proteção humana: o peticionamento individual, o conceito de vítima e o amicus curiae como indicadores do acesso aos sistemas interamericano e europeu de proteção dos direitos humanos. </b> - doi: 10.5102/rdi.v9i4.2124

The research report has elaborated in constitutional-international law context, and the object is the universal access to the human rights protection systems. The research question is what is the subject role in these protection systems. That is an epistemology and applied research, with documentary and bibliographical technical research, that (re)discusses the notion of subject in the post-modernity fragmentation context, that is presented in double dimension: as victims of human violations and to encourage the construction of the public sphere of human rights. As the demarcation issue, the comparison is made between the European and Inter-American human rights systems in three perspectives: institutional analysis, examination of access and verification of the construction of legal concepts on human rights with the participation of the subject. The search is performed within the research group of Internationalization of Law. The discussion of research hypotheses is based on two points. The first concerns the advancement of European and Inter-American human rights protection systems in judicial construction and realization of fundamental values protected by the Convention. The second refers to the actions of the subject as a victim conduct to build common values, and creating conditions of possibility individuals and other actors to access the human rights protection systems can be the start the construction of a communicative public sphere world on human rights. The European and Inter-American system, which are at different times and have different speeds, developed a common background, about the need to respect the dignity of the human person. However, at present, which analyzes the process of cross-fertilization in the light of Internationalization of Law, we can see an Inter-American system concerned with evolving saga in his quest for the realization of human rights and a model of rationality that allows direct access to the person before the court, without the destruction of the symbolic heritage built by Inter-American Comission of human rights, while the European system, in turn, finds herself in a moment of attention, especially in the clash between the demands of the economy (the “combat” to illegal immigrants) and soul built around human rights (protection of the human person, regardless of their origin or of their legal heritage).

Narratives of the International Legal Order and Why They Matter: An Introduction

Much article and web space has been recently invested in investigating the nature of the international legal order, or, rather, in promoting specific visions of the international legal order. This special issue of the Erasmus Law Review (ELR) is yet another contribution to this growing body of literature, but one that adds a twist which, we believe, may contribute positively to these debates. Before I get to that, though, let me just say that it has been a real intellectual treat and a challenge to be a guest editor to this issue of the ELR. I am deeply grateful to Prof. Dr. Ellen Hey for all of her support along the way, which makes her de facto the co-editor of this special issue. I have found our rapport most fruitful, and she has been essential to bringing the original idea for this issue to fruition. Now, this issue starts from the assumption that current debates in international law seem to be informed by different narratives about the international legal order. These narratives about ‘projects’ of the international legal order are ways of thinking that in one way or another attempt at explaining the convergences and divergences of international legal rules and institutions. More importantly, another assumption underlying the impetus for this issue is that scholars who engage with these debates about broader notions of the international legal order most often engage with the ideas on a conceptual level, or from the perspective of what is commonly referred to as ‘general’ international law, often neglecting the contribution of ‘specialised’ fields of international law to these narratives or projects. This issue attempts to remedy that, by having articles written by scholars who engage in specialised fields of international law think about their areas as contributors not only to the broader international legal project, but also to one of the narratives of the legal international. The main narratives referred to can be roughly labeled as ‘global administrative law’, ‘the constitutionalisation of international law’, ‘international legal pluralism’, and ‘the fragmentation of international law’. In broad terms, global administrative law (GAL) seeks to map out the competence creep of different interna-

The Appeal of the Project of Global Constitutionalism to Public International Lawyers

Global constitutionalism, an idea neither necessarily rooted in nor emerging specifically from international law, has captured the imagination of public international lawyers. Rather than adding to the plethora of suggestions of what a global constitution would and should look like, this article is aboutwhyinternational lawyers are interested in this idea. The literature so far has largely omitted a stocktaking of what it is that is so appealing about constitutionalism and who is particularly partial to it. When discussing global constitutionalism, international lawyers commonly assume one of two orientations: either a normative orientation (this is the type of constitutionalism we should have) or a descriptive orientation (this is the type of constitutionalism we already have). The former mostly concerns visions for “a global constitution” while the latter often concerns ideas of the process that will at some point culminate in “a global constitution;” this process is commonly referred to as “constitutionalization.” The recent co-authored book by Jan Klabbers, Anne Peters and Geir Ulfstein,The Constitutionalization of International Law, sets out to go further. It aims to see “what a constitutional international legal order could look like.” In a sense, they have therefore adopted a third orientation: one that takes the descriptive case of constitutionalism as a given and theorizes about further normative aspects in regard to the international legal order.

The Holy Trinity of International Legal Debate

‘Fragmentation, verticalization, and constitutionalization form the holy trinity of international legal debate in the early 21st century’ – such is the opening phrase of Jan Klabbers's first chapter in his co-authored book, The Constitutionalization of International Law. Although Klabbers possibly did not intend it, by invoking the ‘holy trinity’, he is calling attention to an important aspect of the contemporary constitutionalist debate, namely what I would like to describe as the faith in constitutionalism as a secular religion. It is from this perspective – the complete and unquestioning belief in constitutionalism – that I will explore global constitutionalism and the three books that are the object of this review.

The Kelsen/Schmitt Controversy and the Evolving Relations between Constitutional and International Law

AbstractThe article examines Hans Kelsen's and Carl Schmitt's lines of thought concerning the relationship between constitutional and international law, with the aim of ascertaining their respective ability to capture developments affecting that relationship, even those of a contradictory nature. It is significant that, while the rise of wars of humanitarian intervention in the post‐Cold War era has evoked Schmitt's concept of the bellum iustum, the evolution in the direction of the “constitutionalisation of international law” has drawn attention to Kelsen's theoretical approach. However, these assumptions rely heavily on the opposing objectives that the two authors claimed to pursue, such as, respectively, the search for the ultimate seat of political power and a pure theory of law. Things are more complicated, both because these objectives by no means exhaust Kelsen's and Schmitt's lines of thought, and because the conception of sovereignty as omnipotence, at the core of the Weimar controversy, is now behind us.

Ulrich Haltern. Was bedeutet Souveranitat? * Toni Erskine. Embedded Cosmopolitanism. Duties to Strangers and Enemies in a World of 'Dislocated Communities' * Jeffery L. Dunoff and Joel P. Trachtman (eds.). Ruling the World? Constitutionalism, International Law, and Global Governance

Two notions constantly re-emerge in present-day research on issues arising under the general heading of constitutionalization of international law: sovereignty and cosmopolitanism. The former is regarded as being rather an impediment to the projects of international constitutionalism, the latter as a distant future goal, but both to be reinterpreted and readapted to modern realities and aspirations of researchers engaged in the theorization of international constitutionalism. The three books under review, which appeared during the last three years, represent an excellent illustration of the relationship and tensions existing between sovereignty, cosmopolitanism, and the project of a constitutionalization of international law. It is significant that the titles of two of these books are formulated as questions. Many uncertainties dominate the field. The first and one of the most important of these uncertainties relates to the notion of sovereignty. Ulrich Haltern in his book entitled What does sovereignty mean? (Was bedeutet Souveranitat?) attempts to shed more light on some ways in which the notion of sovereignty continues to shape our understanding of the political and on reasons for the continuing relevance of sovereignty in the modern world, including international law. Haltern describes his approach as a political theology of the notion of sovereignty (politische Theologie des Souveranitatsbegriffs) (at 10). He provides an explanation of one of the paradoxes at the core of the project of international constitutionalism, namely that between increased sophistication of theoretical arguments developed by international lawyers to demonstrate the relevance and force of international law beyond the mere will of states and the continuing political practice of the imposition of the will of dominant state(s) on the world contrary to international rules and prescriptions. Sometimes this paradox is explained in terms of the insufficiency of international law's enforcement mechanisms. This explanation is viewed by Haltern as too simplistic (at 8). �

Bottom-Up Constitutionalization of International Law: The Targeted Sanctions Regime as a Case Study

Bottom-Up Constitutionalization of International Law: The Targeted Sanctions Regime as a Case Study

International Human Rights Law and Domestic Constitutional Law: Internationalisation of Constitutional Law in Hong Kong

The case of Hong Kong, a former British colony which since 1997 has become a Special Administrative Region of the People’s Republic of China, provides an interesting case study of the interaction of international human rights law and domestic constitutional law and the internationalisation of constitutional law. Hong Kong has, since 1991, introduced constitutional and legislative arrangements to enable the human rights norms in International Covenant on Civil and Political Rights to have constitutional force in Hong Kong, to be justiciable before the Hong Kong courts and to be used as yardsticks for constitutional judicial review of legislative and governmental actions. This system has continued to operate effectively after the handover in 1997 under the new constitutional regime established by the Basic Law of the Hong Kong Special Administrative Region enacted by the PRC. Part II of this article provides an overview of the application of the norms of international human rights in the domestic law of the HKSAR. Part III consists of several case studies of major court cases in recent years that illustrate the internationalisation of constitutional law in Hong Kong. Part IV seeks to locate the case of Hong Kong in the international and global context, and to develop a conceptual framework for the study of the internationalisation of constitutional law. It seeks an understanding or explanation of the internationalisation of constitutional law in the HKSAR in terms of the lack of an indigenous constitutional tradition in Hong Kong and the peculiar mentality of the people of Hong Kong living under “one country, two systems”, particularly their anxiety regarding the “mainlandization” of Hong Kong and their aspirations for the preservation of civil liberties and the maintenance of their cherished way of life.

The Basic Law (Grundgesetz): The Constitution of the Federal Republic of Germany

This translation is part of the research project International Constitutional Law. All amendments up to and including the 60th Amendment of 23rd December 2014 have been translated and included into a consolidated edition. There have been no more amendments until today (6th July 2016).

Introduction—Global Constitutionalism from an Interdisciplinary Perspective

This issue discusses the process and substance of global constitutionalism from an interdisciplinary perspective. The contributions look at international law and governance through constitutionalist spectacles. These spectacles have normative and empirical-analytical lenses. Seen through the normative lens of lawyers, a constitutionalist reading of current international law is, to some extent, an academic artifact. It has a creative moment, even if it only emphasizes certain characteristics of international law. From a legal perspective, such an intellectual construct is nothing unusual. If we accept the hermeneutic premise that a naked meaning of a text, independent of the reader, does not exist, then the reconstruction of some portions of international law as international constitutional law is just an ordinary hermeneutic exercise. It is a legitimate form of interpretation, not a distortion of norms that are “objectively” something else. Seen through the empirical-analytical lens, the major question is whether there is strong empirical evidence for the emergence of an effective constitution beyond the nation-state. The term “effective constitution” denotes the idea that these constitutional rules make a difference for individuals and are not just cheap talk by politicians. Most analyses of constitutionalism are written by legal scholars. Only recently,

The Constitutionalization of International Law and the Legitimation Problems of a Constitution for World Society

The Constitutionalization of International Law and the Legitimation Problems of a Constitution for World Society

A Global State of Emergency or the Further Constitutionalization of International Law: A Pluralist Approach

A Global State of Emergency or the Further Constitutionalization of International Law: A Pluralist Approach

Intelligence Operations on Religious Terrorist Groups and the Right to Data Protection – Current Issues in International Constitutional Law

Article Intelligence Operations on Religious Terrorist Groups and the Right to Data Protection – Current Issues in International Constitutional Law was published on September 1, 2008 in the journal ICL Journal (volume 2, issue 3).

Constitutional patriotism as a model of postnational political association

Economic globalization has resulted in the transfer of national power to supranational actors and their supranational procedures and institutions. Concomitant with this trend is the ascendancy of the discourses of democracy and human rights that have given rise to the idea of cosmopolitan justice. These trends, in turn, have weakened statehood [ Entstaatlichung], requiring theoretical envisioning and practical institutionalization of a supranational model of political association. Among the competing theories, in this article I will defend the Kantian project of constitutionalization of international law. In doing so, I take the doctrine of constitutional patriotism as an appropriate model of supranational political association in the European Union and defend it against the republican critique that rejects the idea as deficient. I argue that the European project of constitution-making can overcome the charges of democratic deficit and the lack of European demos by establishing the terms and conditions for democratic negotiation and institutionalizing shared practices of law-making.

Making a World of Difference? Habermas, Cosmopolitanism and the Constitutionalization of International Law

This paper examines the explicit linkage in the recent work of Habermas between cosmopolitanism and the constitutionalization of international law. Whereas previous thinking on the constitutionalization of international law has tended either towards the utopianism of world government or the modest ambition of attaching the constitutional label to certain material developments in transnational regulation - in particular the human rights regimes and the institutional structure of the UN as developed through state agreement - Habermas looks for an intermediate solution. This would involve a modest range of institutions and functions at the global level, in particular around peace and human rights, but founded on a broader and more popular basis than state agreement. The potential and urgency of the Habermas proposal lies in its opposition less to the other constitutional visions and more to the alternative and increasingly tangible prospect of a lop-sided international regime dominated by American perspectives.

The Internationalized Pouvoir Constituant ― Constitution-Making Under External Influence in Iraq, Sudan and East Timor

I. Framing External Influence: Concepts and Categories 1. The Traditional Concept of Constitution-Making 2. Categories of External Influence II. Describing External Influence: Three Case Studies 1. Constitution-Making Under International Administration – East Timor a. Factual Context b. Legal Framework for the Constitution-Making c. Actual Process of Constitution-Making 2. Constitution-Making Under Foreign Occupation – Iraq a. Factual Context b. Legal Context c. Actual Process of Constitution-Making aa. Which Actors? bb. Which Ideas? 3. Constitution-Making through International Moderation – Sudan a. Context b. The Peace Negotiations c. Executing the Peace Agreement: The Process of ConstitutionMaking III. Assessing External Influence: Legality and Legitimacy 1. The Legality of External Influence a. Applicable Law and Legal Regime b. Whether Existing Rules are Respected in Practice

Looking Beyond the National Constitution – The Growing Role of Contemporary International Constitutional Law. Reflections on the First Vienna Workshop on International Constitutional Law

In a world of societies ever more closely interrelating to each other, lawyers face the challenge of crossing the borders of their national legal system and looking beyond its fundamental source of identity – the constitution. Having this thought in mind, Harald Eberhard, Konrad Lachmayer and Gerhard Thallinger organized the First Vienna Workshop on International Constitutional Law held on 20 and 21 May 2005, bringing together members of the academic community, legal officers in International Organizations and law students. The Workshop offered eight lectures and fruitful discussions on the comparative analysis of constitutional law thus providing a new impetus to a field of law of steadily growing importance to which, so far, too little attention has been given.

International Constitutional Law and Anti-Corruption Measures in the European Union's Accession Negotiations: Romania in Comparative Perspective

A. Bulgaria, Romania and Turkey 629 B. Enlargement and International Constitutional Law. 633 C. Enlargement and Corruption 635 Table 1: Ratification of COE Conventions by Pre2004 EU Member States 639 Table 2: Ratification of COE Conventions by Class of 2004 EU Member States 639 Table 3: Ratification of COE Conventions by EU Candidate States 640