National Constitutional Law Research Articles

Protection of the Environment in National Constitutional Law in Light of the Jurisdiction of the ECtHR – A Hungarian Perspective

The article gives a comparative analysis of the protection of the environment in the European human rights framework and at the constitutional level through the example of Hungary. The contribution analyses two judgments of the ECtHR in connection with the country and presents the Hungarian constitutional framework for the protection of the environment. The starting point of the analysis is the fact that the different levels of regulations – international and national – tend to focus on different aspects of protection, yet they significantly influence each other. The presentation of the two Hungarian cases is particularly topical in light of the fact that the Fundamental Law of Hungary, which introduced several unique provisions for the protection of the environment, was adopted between the finalisation of the two judgments.

The convergence of national constitutional and international humanitarian law – challenges and opportunities for Ukraine

Today, there is a clear need for ratification of the Rome Statute of the International Criminal Court and its implementation into Ukraine's national (domestic) legislation. Regardless of when the ongoing full-scaled Russian aggression against Ukraine finishes, we should have a real possibility (that should be foreseen on the national constitutional level) to apply an effective internationally recognized mechanism and instruments to investigate mass atrocity crimes and ensure respect for humanitarian law, fundamental rights, and human freedoms and punish everyone, who committed them following the rule of law. This article aims to examine the legal (constitutional) background and political narratives regarding the accession of Ukraine to the Rome Statute of the International Criminal Court (signed on January 20, 2000, not ratified till now due to some political tensions and overcome legal (legislative) disparities). We search for strong and weak sides, challenges (threats), and opportunities created by its forthcome ratification.

Topical Issues of Counteracting the Threats to National Security

Introduction. One of the primary important objects for ensuring the national security of any state, as an independent and self-sustained subject of the system of global policy coordinates, is its sovereignty. The sovereignty is the fundamental category in formulating the principles of the national constitutional and international law. Ensuring the sovereignty is one of the most important functions and tasks of the modern Russian state. The article analyses the state policy and its legal basis for ensuring the national security, it focuses on the threats and crises in both the international and national security systems. The research is relevant due to studying the selective approach of some states to fulfilling their obligations to adhere to the commonly recognised principles of the international relations. It is emphasised, that although formally observed, the principle of national sovereignty of the states is constantly violated when referred to the weaker states according to the medieval “right of the strong”. The topical issues of counteracting the threats to national security are investigated. Attention is focused on the need to develop the measures aimed at timely and efficient prevention thereof. The aim of the study is to analyse the concept of “sovereignty”, identify the external and internal threats to the sovereignty of Russia and develop recommendations on the strategic national priorities. Materials and Methods. The research was conducted using the general and specific methods of scientific cognition, in particular, the dialectical method, content analysis of the normative legal acts, juridical comparativistics, as well as systemic, structural-functional, logical and other methods. Results. Within the research such concepts as “sovereignty”, “national interests of the Russian Federation and strategic national priorities” have been analysed. The assessment of the current state of the world order is given, as well as the directions and trends of its reform are studied. The external and internal threats to the sovereignty of Russia have been identified and strategic goals in the field of ensuring the national security have been outlined. Discussion and Conclusion. Based on the results of the conducted research, it was proved that the qualitative change of the methodological and conceptual foundations of the national and international security is required. To counteract the different national security threats, it is necessary to adhere to the national priorities, goals and the developed strategy. The present paper deems to be important for the Russian juridical science, as well as for the subjects of lawmaking and law enforcement.

Legal Adaptation for the Syrian Constitutional Committee Formed Based on UN Security Council Resolution 2245

Background: Presumably, constitution-making is a national process reflecting the state’s sovereignty and people's will. The severity of the conflict in Syria and its danger led the international community to intervene, and in 2015, the Security Council issued Resolution 2254 to settle the conflict. This resolution, in item 4, called for the start of the drafting process of a new Constitution for Syria; hereby, the Constitutional Committee was formed in Geneva in 2019 with the agreement of the conflict parties, the government and the opposition, and the consent of the international community represented by the United Nations. This research discusses the extent to which the intervention of the United Nations in the Syrian Constitutional Committee's formation and work in Geneva affects the principle of the Constitution's nationalism and state sovereignty. The research also discusses the legitimacy of the powers granted to this committee, whether in drafting a new constitution for the Syrian state or amending the current 2012 Constitution, and whether they conflict with the national sovereignty principle in considering the constitutional law principles. Methods: We relied on the analytical method to study the legal adaptation of the Syrian Constitutional Committee formed based on Security Council Resolution 2254. The impact of the United Nations intervention in the Syrian Constitutional Committee and whether it conflicts with the principle of national sovereignty depends on clarifying the role played by the United Nations in forming the committee and its ability to impose binding decisions on it. Achieving this objective requires analysing the powers of the Constitutional Committee in light of the principles and rules of constitutional law. This entails determining whether the committee possesses the full authority of the original constituent power to establish a new constitution for the state without referring to the people or if its jurisdiction is limited to drafting. Through this analytical method, we shall know whether the formation of the Constitutional Committee and the jurisdiction granted contradicts the principle of national sovereignty, which assumes that the Constitution is a national industry. Results and Conclusions: The formation of the Syrian Constitutional Committee, authorised by the United Nations through the Security Council Resolution 2254, does not detract from Syrian national sovereignty nor conflict with the principle of constitutional nationalism. Firstly, the formation of the constituent authority responsible for establishing the Constitution is not a legal issue but rather derives its existence from reality, and this applies to the Syrian Constitutional Committee, which derived its existence from the Syrian reality conflict and with the agreement of its parties, government and opposition. Therefore, one cannot say that the formation of this committee is illegitimate or inconsistent with the principles of constitutional law, given the absence of a legal framework governing the mechanism for forming the constituent authority, whether in Syrian constitutional law or comparative constitutional law. The Constitution is a result of the circumstances and situations that have accompanied its emergence and determined the method of its establishment. Secondly, the Constitutional Committee is not a full constituent authority because it does not have the power to approve a new constitution or an amendment to the current Constitution in its sole discretion. It might adapt as a technical consensus committee whose role is limited to formulating proposals that require popular consent. Thirdly, It is arguable that Security Council Resolution 2254 and the decision to form the Syrian Constitutional Committee constitute the legal framework from which this committee derives its legitimacy and work. Therefore, we can say that the issue of forming the Syrian Constitutional Committee and its work has become a legal issue governed by an international legal framework, marking a departure from its previous extrajudicial status under national constitutional law.

The ‘European Multilevel Constitutional Review Composite’ Between ‘Primacy/Precedence’ and ‘Supremacy’: European Legal Integration After the Judgments by the German Bundesverfassungsgericht in ‘ECB-PSPP’ and the Polish Trybunal Constytutyjny in ‘K 3/21’ [pre-publication

Apparently, European legal integration currently faces once again its most fundamental doctrinal problem, i.e.,: the nature of EU supranational law and its relation to the traditional ‘superiority’ of constitutional law within its Member States. Since the European Court of Justice (ECJ) repeatedly re-emphasizes the ‘primacy’ and needed effectiveness of the former, this provokes the question about the latter’s remaining functional nature. Indirectly, this issue goes also to the heart of the EU’s judicial-system of a ‘European multilevel constitutional review composite (EMCRC)’. It relates thus not only to the ECJ, but also to the functions of Member State authorities exercising constitutional review powers within the overall EU legal integration process. Whilst this inter-institutional question had received a new impulse with the German ‘Bundeverfassungsgericht (BVerfG)’-ruling of 5 May 2020 in case ‘ECB-PSPP’, it became finally undeniable with the decision of 7 October 2021 by the Polish ‘Trybunal Constytutyjny’ in case ‘K 3/21’; there regarding the persistent EU-Poland ‘rule of law’-conflict. At issue is thus not only a theoretical approach to laws at different levels, but particularly also the EMCRC’s appropriate inter-institutional future setting. Arguably, this in turn calls however for a commensurate differentiation of terminology in both EU law and national constitutional law. This article enquires into a necessary differentiation between EU law ‘primacy/precedence’ on the one, and national constitutional law ‘supremacy’ on the other side. It aims to demonstrate that such distinction cannot be based on legal-theoretical considerations alone. Instead, particular attention deserves also how the courts factually position themselves, functionally, within the EMCRC. The basic aim is thus to show that the legal-conceptual differentiation and the judicial-institutional functions interrelate decisively. With this in mind, a judicial system such as the EMCRC functionally remains plausible only when it builds upon EU law ‘primacy/precedence’, while it must respect the ‘supremacy’ of national constitutional law(s) as a reactive safeguard for national constitutional courts. Accordingly, legal ‘supremacy’ constitutes a national constitutional law principle indispensable for national courts or tribunals exercising constitutional review. While safeguarding their constitutions’ validities, it indirectly also secures their role as ‘guardians’ over possibly excessive EU acts. By contrast thereto, legal ‘primacy/precedence’ arguably defines the ECJ’s fundamental procedural prerogative to regularly lead the way with interpretative ‘inputs’ introduced into the EMCRC. However, under the above basic conceptual distinction, the national judicial bodies’ capacity to ‘supremacy’-based disagree with the ECJ’s ‘primacy/precedence’-based rulings can only commensurate with the EMCRC’s functioning, if certain additional procedural conditions are met: initially, that their constitutional review over ECJ-rulings remains an ‘exception to the rule’, and therefore, that national constitutional review bodies should ‘regularly’ also bear the burden to substantiate their exceptional disagreement Finally, that this should normally be combined to a ‘constructive input’-consideration, i.e.,: one that avoids a ‘misuse’ of constitutional legal supremacy and, instead, allows the EMCRC to think EU law constructively forward. **To substantiate the existence of indications supporting this approach, is this article’s main objective.

Trends in Modern Ukrainian Constitutionalism in the Context of Globalisation

Constitutionalism is the most progressive political and legal system, which is substantively and functionally adapted to the effective development of Ukraine as a democratic, rule-of-law State and a full-fledged member of the European community, and therefore it is theoretically justified and practically necessary to identify the main trends in the development of Ukrainian constitutionalism in the context of globalisation challenges of the modern world. The most important areas of Ukrainian constitutionalism that correspond to the political, economic and social aspects of globalisation are: political science, internationalisation, economisation, socialisation, humanisation, environmentalisation, informatisation and digitalisation. The politicalisation of constitutionalism is expressed in the influence of political ways and means on constitutional and legal relations, in particular, in the area of organisation and functioning of the state authorities and civil society. This tendency is associated with the internationalisation of the system of constitutionalism, which is expressed primarily in the convergence of national constitutional law with public international law. The trend towards the economisation of constitutionalism means the process of formation and functioning of a constitutional, socially oriented economic organisation of modern society and the State with a view to ensuring economic freedom of a person. Economic freedom can only be ensured by a system of economic relations based on the principle of economic diversity, including recognition of the diversity of ownership forms, freedom of entrepreneurship and an effective economic system of the state. Socialisation, as a trend of constitutionalism, is manifested in the socialisation of the constitution and constitutional law in general. This is reflected in the formation and development of a social state whose policy has a priority social orientation, which is expressed in the state’s service to civil society - an association of free and equal people and their associations, in the state’s provision of human rights and freedoms. The trend towards humanisation of constitutionalism characterises the development of its system from the perspective of the «human dimension». This trend is of particular relevance in the current conditions of war, when a person needs special protection from the state. The globalisation of environmental issues determines the trend towards the greening of constitutionalism. In Ukraine, this trend is manifested, first of all, in the creation of a system of environmental legislation aimed at regulating relations in the field of interaction between society and nature. The trend towards informatisation of constitutionalism is manifested in the processes of creating an informationbased national society and an effective legal framework for Ukraine’s transformation into a digital state. Hence, the digitalisation of the State and society determines its digitalisation as an independent trend of constitutionalism. The above list of constitutionalism trends does not claim to be complete and comprehensive. The main directions of its development may change or be supplemented with new ones, since constitutionalism is a modern political and legal system which is always on time. Key words: constitutionalism, globalisation, trends in the development of constitutionalism, political science, internationalisation, economisation, socialisation, humanisation, environmentalisation, informatisation, digitalisation.

The significance of international legal standards in the context of the development of the constitutional law of Ukraine

Purpose. The aim of the work is to analyze in the general legal aspect of understanding the significance of international legal standards and their implementation in the context of the development of constitutional law of Ukraine, determining their role and significance in the national legal system. Methodology. The methodology includes a comprehensive analysis and generalization of available scientific and theoretical material and the formulation of relevant conclusions and recommendations. The following methods of scientific reseach have been implemented: terminological, logical-semantic, functional, system-structural, logical-normative. Results. In the process of research, it was recognized that ensuring commitment to the principles and norms of international law is a socio-historical, socially determined phenomenon and appears to be a significant factor in the world recognition of Ukraine as a full-fledged participant in international relations, where a significant role is played by the readiness and ability of the state through the system of contract law, the implementation and the implementation of contractual norms, their introduction into the system of national constitutional law to fulfill the prescriptions of international legal standards. Originality. In the process of research, it was established that international legal standards should be considered an integral part of the national legal system in general and the constitutional law of Ukraine in particular, which is the result of the efforts of the international community of states for their democratic, legal development. Practical significance. The results of the research can be used in law-making and law-enforcement activities during the development of proposals regarding the mechanism of implementation of international legal standards into the national system of law and legislation.

National climate litigation and the international rule of law

AbstractThis article assesses the implications of national climate litigation for what is termed ‘the international rule of law’. Starting from the finding that the current international climate treaty regime lacks several elements of an international rule of law, such as legal bindingness, clarity, and justiciability, the author explores what national courts contribute to filling these gaps. Deviating from a linear progression narrative, which is prevalent in existing literature, this article provides a more nuanced and complex picture. Whereas successful climate litigation is hardly imaginable without reliance on internationally agreed-upon facts – such as reports by the Intergovernmental Panel on Climate Change and global average temperature levels deemed ‘dangerous’ – doctrinally decisions do not represent a turn toward a stricter rule of international climate law. Instead of applying and progressively developing climate treaties, courts thus far have primarily used these provisions only to develop national constitutional law and regional human rights law. The created system of highly contextual national rule(s) of climate law is a fragmented one which is regionally limited to a few states predominantly located in Western Europe. Consequently, it is a far cry from a truly global rule of international climate law.

The Independences of Judges at the Confluence between the Primacy of the National Constitutional Law and the Primacy of the European Union Law

Constitutional control in Romania implies the obligation of the courts to apply the decisions of the Constitutional Court and may involve the disciplinary sanctioning of judges for non-compliance with these decisions. Some judges considered that this mechanism may affect their independence, especially if the EU law may come into conflict with the decisions of the Constitutional Court. Our paper highlights that a proper understanding of constitutional control underlines the essential role of the Constitutional Court for the protection of the democratic state and of the values of the European Union through its dialogue with the CJEU and with the national courts.

A concept at the edge of national and European constitutional law: different understandings within the same region. Constitutional identity in Poland and Hungary

A concept at the edge of national and European constitutional law: different understandings within the same region. Constitutional identity in Poland and Hungary

Rechtliche Implikationen der Völkerrechtsfreundlichkeit: Sonderfall EMRK und EGMR – Österreich

The European Convention on Human Rights (ECHR) enjoys constitutional status in Austria. This is a special case, both in comparison with the integration of the ECHR in the legal systems of other contracting states and in comparison with the rank of other human rights treaties in Austria. However, the constitutional rank alone does not mean that the Austrian legal system is particularly friendly to international law, namely the ECHR. It does, however, lead to a self-evident reference to the guarantees of the Convention and the case law of the European Court of Human Rights (ECtHR) in the everyday application of fundamental rights, which is more an expression of the function of the ECHR as a supplement to national constitutional law than of a special friendliness towards international law. Additional aspects, however, suggest that the Austrian legal system is friendly to international law with respect to the ECHR.

Constitutional identity as a normative constitutional concept

AbstractAlthough constitutional identity is nowadays invoked by European states primarily against the extension of the powers of the EU institutions, it can also be understood as a substantive concept of national constitutional law. This article deals with constitutional identity as a normative constitutional concept. In this respect, the problem is the same as that which arises in the relationship between EU law and domestic law: namely, its fundamental indeterminacy and the possible arbitrariness of its application. The author argues that, therefore, constitutional identity can only be plausibly invoked if satisfactory answers can be given to the questions of exactly whose identity it is, what its source is, who and how its content may define, and what the constitutional function of this category is. The second part of the study examines the Hungarian constitutional identity according to this analytical framework, and concludes that, although its subject is the Fundamental Law, its definition, content and constitutional function are unclear and contradictory. Consequently, the current concept of constitutional identity in Hungary raises a number of problems for which no plausible answers have yet been found, and it is highly doubtful whether the doctrinal and practical difficulties related to it can be resolved at all.

Polish Constitutional Tribunal’s Judgement Regarding Supremacy of the Polish Constitution Over EU Law: The Next-Level Debate on the “Last Word’’

2021 judgement K 3/21 of Poland’s Constitutional Tribunal (Trybunał Konstytucyjny, hereinafter – the Tribunal) concerns compatibility of some norms of Treaty on European Union (TEU) with Polish constitution. According to the Tribunal, contested norms of TEU are incompatible with relevant norms of the Polish constitution. It also suggested that Polish government institutions follow national constitutional rules in case of any conflicts. In essence, the Tribunal ruled that Polish constitution shall supersede TEU in specific cases brought before the constitutional court. This article aims to explore the contents of Tribunal’s judgement, analyse its legal rationale, reflect upon relationship between EU law and national constitutional laws from a broader legal and political perspective, and draw conclusions regarding the next steps.

THE ANTI-OLIGARCHY POPULAR CONSTITUTION

THE ANTI-OLIGARCHY POPULAR CONSTITUTION

A Comparative Juridical Analysis of the Constitutional Advancement of Women’s Matrimonial Property Rights in Swaziland and Kenya

The equalisation of women’s and men’s marital rights is still a challenge for certain countries on the African continent. Although most African countries have adopted supreme constitutions guaranteeing a host of justiciable human rights, the marginalisation and subjugation of women persists. In this article, we engage in a critical review and assessment of two divergent court decisions (one from Swaziland and the other from Kenya) which concern the matrimonial property rights of women. Those cases will be used as the foundation for investigating and evaluating the degree to which Swaziland and Kenya are either enhancing or constraining women’s matrimonial rights. In this article, we also assess the extent to which national constitutional law is being harmonised with existing and recently promulgated legislation and whether the purported synthesis of enacted marriage laws has affected constitutional equality in those specific countries. Additionally, we contend that the promulgation of new legislation and/or the amendment or repeal of unconstitutional legislation is insufficient to advance true equality. The courts or the judiciary, must also perform their remedial and pre-emptive role in the protection, enforcement and promotion of constitutional rights and the facilitation of equality reform. In our opinion, the matrimonial property rights of women in Africa can be equalised and enhanced even in systems of law that remain rooted in traditionalism and which habitually treat women as inferior to men. Such a mammoth undertaking requires a dual commitment and concerted action from both the legislature and the judiciary.

When can religious employers discriminate? The scope of the religious ethos exemption in EU law

AbstractWhen are religious employers exempt from the prohibition of discrimination (i.e., when can they discriminate against non-adherents)? The European Union (EU) Equality Framework Directive exempts religious employers from the prohibition of religious discrimination, but the scope of the religious ethos exemption is disputed and its interpretation by the Court of Justice of the European Union (CJEU) in Egenberger and IR v JQ has been criticised for being ultra vires and for disrespecting the constitutional identities of the EU Member States. This article clarifies the religious ethos exemption, by examining the underlying legal and normative issues that determine its scope. It shows that the scope of the exemption depends not just on the Framework Directive but also on the relationship between EU law and national constitutional law and that between EU law and international law. Thus, this article not only provides clarity regarding the religious ethos exemption, but also uses these judgements as an opportunity to revisit these related constitutional issues, and in particular the role of the CJEU and EU legislature in defining the place of national constitutional identity in EU law.

The Relationshipbetween EU Law and National Constitutional Law in the Field of Fundamental Rights

The Constitutional Court of Romania carries out the control of the constitutionality of the laws and ordinances of the government and pronounces decisions that have a binding effect erga omnes. Within the constitutionality control, a special position is occupied by the EU law. In our paper we will focus on the interferences that may arise between the national norm, the EU law and the national Constitution, from the perspective of the jurisprudence of the Constitutional Court and the principle of priority of the EU law.

THE PRINCIPLE OF PRIMACY OF EUROPEAN UNION LAW: A COMPARATIVE APPROACH IN RELATION TO THE CONSTITUTIONAL LAW OF THE MEMBER STATES OF THE EUROPEAN UNION

At the supranational level of the European Union legal order, the Principle of Primacy of European Union Law holds a prominent position, as one of the general principles of European Union Law, in relation to the Constitutional Law of the Member States of the European Union. The objective of this scientific research is to scientifically highlight the reasons for the primacy of European Union Law in relation to the national Constitutional Law. The purpose of this scientific research is to cure the non-uniform implementation of Primary and Secondary European Union Law that arises in various affairs of citizens of the European Union by national Authorities in the interpretation of European Union Law. The methodology of writing the scientific research is based on the use of the current Primary European Union Law and the current jurisprudence of the Supreme Court of Justice of the European Union in conjunction with the recent scientific theory in the cognitive object of European Union Public Law. Emerges the nature of its Principle of Primacy of European Union Law emerges. For scientific analysis in the research field of Comparative Law, the scientific, modern and external comparative method of the macro-comparison is used. After reading of this scientific research, the readership will own the appropriate scientific tools which scientifically substantiate the primacy of European Union Law in relation to the Constitutional Law of the Member States of the European Union.

РОЛЬ ТЕРИТОРІАЛЬНИХ ГРОМАД У ФОРМУВАННІ ФЕНОМЕНОЛОГІЇ СУЧАСНОГО ЕКОЛОГІЧНОГО КОНСТИТУЦІОНАЛІЗМ

The article is devoted to the study of the phenomenology of environmental constitutionalism in terms of the influence of local communities on environmental human rights, providing them with new content and local content in the global environmental crisis, constitutionalization of legal systems and the formation of global constitutionalism. The opinion is substantiated that the formation of the constitutional and legal level of environmental human rights is evidence of the state’s recognition of its natural rights through further constitutional legalization, which is especially important in the global environmental crisis. Increasing the level and scope of sufficient quality, proper and optimal constitutional and legal regulation of environmental rights is a reliable guarantee and demonstration of readiness of man, society, state and the entire international community to function sustainably in the new difficult conditions of human existence. It is emphasized that environmental rights, which have a constitutional and normative level, are in fact accompanied by significant meta-legal and quasi-legal phenomena that form the basis of everyday life of a particular person, building, so to speak, the philosophical state of everyday life. The human life cycle takes place at the local level of the society within the territorial community as a territorial human community that exists in the context of local self-government. The author notes that environmental constitutionalism is seen as a complex multilevel, multidimensional, teleological and normatively determined phenomenon at the intersection of national constitutional law, general international law, international human rights law and general environmental law (national and international). It has a direct connection with the person, his groups and groups operating in the relevant territory of a particular state, carrying out its life cycle. That is why territorial communities play a fundamental role in its formation and definition. It is concluded that the above provisions allow us to assert about the phenomenology of environmental constitutionalism that, by and large, it acts as a complex multilevel, multidimensional, teleological and normatively determined phenomenon at the junction of national constitutional law, general international law, human rights law and general environmental law (national and international). They transformed into the object of normative legal identification, historical and legal contextualization and pragmatic axiology from the level of phenomenology and the object of purely applied the scientific and doctrinal level. Because it has a direct connection with the person, his groups and collectives functioning in the corresponding territory of the concrete state, carrying out the life cycle, and territorial communities play in its formation and definition a fundamental role.

The Electrical Contractors Case: Irish Supreme Court Illuminates Collective Bargaining and Delegated Legislation

AbstractAs Europe begins to emerge from the Covid‐19 pandemic, two trends are clear: one, labour market reform is urgently needed, to cope with new economic and technological realities; and two, big government is back. The recent decision of the Irish Supreme Court in Náisiúnta Leichtreach Contraitheoir Éireann v Labour Court illuminates the relationship between collective bargaining and the regulatory state. In potentially one of the most important decisions in Irish labour law in decades, the Court rejected a constitutional challenge to legislation aimed at empowering social partners to regulate economic sectors through collective bargaining. This article situates that decision within recent scholarship on the ‘labour constitution’ model of labour law, under which the social partners should participate in economic governance. It also highlights the relevance of the decision for the ‘Social Europe’ agenda and the political economy of both national constitutional law and the EU internal market.