National Constitutional Law Research Articles

Constitutional Amendment Index: the procedural requirements of an EMU-induced constitutional change in EU member states

The implementation of reforms of the Economic and Monetary Union (EMU) is constrained by a complex interaction between national and EU laws. This paper presents a composite indicator of procedural constraints that national constitutional laws impose on the EMU-induced constitutional amendments. The Constitutional Amendment Index (CAI) is based on the sequence of veto points – parliamentary formations, referenda, heads of states and constitutional review bodies – as procedural requirements that the EMU-induced constitutional amendments need to comply with at each point. The coding of legal requirements combines the analysis of formal procedures in 28 EU member states with expert judgement on the potential use of these requirements in the light of the prevailing legal culture and past experience. While the relevance of these constraints depends on the specific economic and political circumstances, the legal index provides a comparison of procedural requirements across EU member states as well as a potential control variable for quantitative research.

Judicial dialogue in three silences

The Taricco litigation before the Court of Justice and the Italian Constitutional Court has generated a number of fundamental questions about the relationship between EU law and national constitutional law and about the impact of EU law on domestic criminal justice systems. The ensuing dialogue between the two Courts has resulted in a considerable degree of mutual accommodation, while leaving a number of issues unresolved. The aim of this comment is to contextualize the Taricco litigation by focusing not on what the Courts have said, but on what the Courts have actually chosen to omit or sideline in their direct conversation, focusing thus on judicial dialogue via the two Courts’ silences. Three silences will be analysed here, one for each of the rulings in the Taricco litigation in sequence.

The evolving relationship between European criminal law and national constitutional law

The evolving relationship between European criminal law and national constitutional law

Constitutional humanitarian law: basics of conceptual paradigm

In modern conditions of constitutional development of Ukraine, favorable conditions are created for the formation and separation in the system of national constitutional law of such its humanitarian component as the constitutional humanitarian law.It is grounded to distinguish three main reasons of this.The first reason – is the current stage of constitutional reforms in Ukraine, which determines this tendency of the development of national constitutional law as its humanization and improvement of human dimension of constitutional and legal realities. Hence, the recognition and legal support for livelihood, development, self-fulfillment and protection of such subjects of constitutional law as a person, a citizen, society (including civil society).The second reason for separation and formation of humanitarian law in the system of constitutional law is strengthening interaction between national and international law. This is particularly evident under current conditions of European integration of Ukraine. International acts (including in human rights and freedoms) are (under certain conditions (see: Art. 9 of the Constitution of Ukraine) part of domestic law.The third reason is associated with the need of complex regulation of social relations that arise between people, civil society and state by constitutional and legal norms for the purpose of establishing constitutional and legal freedoms.The nature of constitutional humanitarian law is marked in the fact that modern constitutional law has a relationship with humanism (humanism – Lat. “humane”), which is found in its humanitarian focus, that is – to focus on ensuring the constitutional and legal freedoms, development and sustainable development of civil society.Constitutional humanitarian law – is an institution of constitutional law, which defines the establishment and protection of human rights, development of civil society through constitutional and legal means. The subject of its regulation are the social relations that arise between people, civil society and the state in the implementation of public (state) authorities for the purpose of establishing constitutional and legal freedoms

O controle de convencionalidade e as transformações no constitucionalismo contemporâneo: a ADPF 153 e a decisão da corte interamericana de direitos humanos no caso Gomes Lund

O objetivo do presente artigo é discutir as transformações no constitucionalismo contemporâneo e o impacto no direito constitucional nacional, notadamente no controle de constitucionalidade das leis, no contexto do transconstitucionalismo e diante da perspectiva do controle de convencionalidade ser utilizado no Brasil, considerando a tensão entre o julgamento da Arguição de Descumprimento de Preceito Fundamental (ADPF) nº 153/DF pelo Supremo Tribunal Federal (STF) em 2010 e, no mesmo ano, a decisão da Corte Interamericana no caso Gomes Lund, que condenou o Estado brasileiro por crimes cometidos na Guerrilha do Araguaia. O tema suscita ainda reflexões sobre a influência do direito internacional dos direitos humanos no direito interno e permanece em aberto no Brasil, uma vez que o STF ainda não julgou os embargos de declaração proposto pelo Conselho Federal da OAB na ADPF nº 153 e foi proposta uma nova ADPF, a nº 320/DF, com o intuito de questionar os efeitos da Lei de Anistia de 1979 diante da condenação do Brasil no caso Gomes Lund na Corte Interamericana de Direitos Humanos e requerer o cumprimento integral dos pontos decisórios da sentença da Corte IDH pelo Estado brasileiro. O trabalho, portanto, utilizará a metodologia crítico-analítica e examinará as novas tendências do constitucionalismo de modo interdisciplinar, com ênfase no direito constitucional, no direito internacional e nos direitos humanos internacionais, bem como nas diretrizes da justiça de transição e do processo de direito à memória e à verdade em curso no país.

Global Constitutionalism and Its Legitimacy Problems: Human Rights, Proportionality, and International Investment Law

Abstract How is legitimacy to be secured for constitution-like legal orders operating beyond the state? Some scholars recommend connecting aspects of global law to human rights adjudication and enforcement by adopting their preferred method for resolving conflicts, namely, proportionality analysis. Adopting a frame of analysis widely embraced by apex courts might generate the requisite regime legitimacy, it is argued. This turns out to be a strategy that is difficult to pursue in the realm of international investment law, a global legal order made up of over 3,300 investment and regional treaties, enforced by private systems of dispute resolution, that incorporates standards of treatment familiar to national constitutional law. By undertaking an analysis of statements made by relevant actors in the field, principally investment lawyers and arbitrators, we learn that there is not that much interest in taking up proportionality analysis, despite the legitimacy problems that continue to dog the system. Whatever the purported advantages of turning to proportionality, it turns out that investment lawyers and arbitrators are not so interested in embracing logics other than one preoccupied with owing solicitude to foreign investors. This reluctance renders investment law a less legitimate, and therefore less sustainable, form of constitution-like global law.

Constitutional Pluralism Is Not Dead: An Analysis of Interactions Between Constitutional Courts of Member States and the European Court of Justice

The theory of constitutional pluralism as advanced by MacCormick and Walker witnessed immense success in its attempt to explain the relationship between courts of Member States performing constitutional review and the Court of Justice. Despite its success, the theory has often been criticized for its lack of normative prescriptions and legal certainty in resolving the question of the final arbiter in the EU. It is the aim of this Article to address and move beyond these criticisms by introducing and exploring the auto-correct function necessary for the proper and balanced functioning of the pluralist system.The auto-correct has the function of preventing an outbreak of conflict between the constitutional jurisdictions involved—in the EU judicial architecture, an awareness on the part of all the actors involved of the benefits of a pluralist setting results in conflict management and control. The auto-correct function operates as follows: in the EU as we know it, issues prone to constitutional conflict arise regularly, and both the Court of Justice and national constitutional jurisdictions are able, through their respective procedural avenues, to control the extent of the conflict. There are also two legal imperatives driving this dynamic in two opposite directions—the principle of primacy of Union law on the one hand, and the obligation to respect the national identity of Member States on the other.As analyzing judicial behaviour shows, the application of self-restraint and mutual accommodation avoids a clash between parallel sovereignty claims on EU and national levels. In particular, national and EU law interaction demonstrates the existence of in-built conditions for the auto-correct function's application, such as the principle of EU-friendly interpretation in national constitutional law, or the national identity clause in primary EU law. The auto-correct function manifests itself and brings about a balance between the different constitutional orders only through the interaction of parallel claims to sovereignty.

International Constitutional Law – Inclusive, but Still Selective?

Abstract Developing international constitutional law, apart from difficulties concerning its definition, faces certain well-known problems – ranging from its pluralistic mode of creation to its enforceability, but has also to scrutinise its aims. If its aim is to at least provide a global reference framework for constitutional principles and concepts – since serving as a common set of values does reach its own limits rather quickly eg concerning fundamental issues such as the role of women in society or sustainability – it has to be inclusive in nature. Certain areas of international law, such as human rights – via Universal Periodic Review or treaty monitoring bodies such as CAT – or WTO law interact closely with national constitutional and/or regional international law (ECHR) and or regional constitutional/public law (eg EU Law). Therefore, their ideas may be taken up – voluntarily through courts or academia, due to examination mechanisms through governments or tribunals – be modified (if necessary to fit into a national constitutional system or supranational constitutional framework) and transported back into the global community (eg as feedback within a WTO case or an UPR). This, however, is event driven. Therefore, it cannot be a carefully conceptualised coherent law such as national constitutions. National (and land constitutions, which may also provide important ideals) constitutions in general serve several functions: as set of values eg in the area of fundamental rights, for structuring the state functions by setting up institutions and modes of operation, and as reference for the interpretation of norms eg in court cases. Their overall purpose is to provide a coherent inner regime. Nevertheless, by promoting certain selected ‘institutionalisable’ constitutional ideas (for example through the rule of law initiative) we can aim to strive from a fragmented towards a more coherent global framework.

The Sociology of Constitutions

This article sets out an account of the historical development and the contemporary elaboration of sociological approaches to constitutional law. It argues that recent years have seen a broad sociological turn in constitutional theory, such that sociological constitutionalism now forms a distinct field of legal research. This is due to the general increase in the importance of constitutionalism in different national societies across the globe. This is also due to the emergence of new patterns of constitutional formation, both within and beyond national societies, resulting from the interaction between national and domestic constitutional law. The article separates different constitutional-sociological approaches into two categories: those with a primarily national, and those with a primarily transnational focus. Overall, however, it claims that sociological constitutionalism is driven primarily by engagement with transnational law, and the main insights in this field relate, in different ways, to global processes of transnational norm formation.

Towards a Right to Democratic Governance in International Law

In its classical positivist tradition international law was not concerned with the internal structures of states, nor did it recognise the place of actors other than states; rather it espoused the concept of domestic jurisdiction and non-interference in the domestic affairs of states as evident in the Charter of the United Nations. Nevertheless, international law has progressed from its traditional state-centrism to an acknowledgement of the place of individuals in international law as highlighted by the development of the field of human rights. The aversion of traditional international law theorists to contemplate matters of purely national law or constitutional law, such as how a government is formed, has been challenged by the rise of democratic governments within state structures in Europe and Africa following the end of the Cold War. With the articulation of a democratic entitlement to individuals in the International Bill of Rights, as well as the aforementioned rise in democratic governments and the work of the United Nations, regional organisations, civil society in democracy and democratisation, a discourse on democratic governance has been inaugurated, opening up international law to a consideration of matters of constitutional law, which hitherto were uncharted waters.

International Delegation in the Swedish Constitution

It has become rather common for States to enter into international agreements where an external body, often an international organization, is given the right to make decisions binding on the States under international law. This is often referred to as ‘international delegation’, and the prime example is of course the European Union. Such agreements may affect the States’ sovereignty in different ways, and therefore, there may be good reasons for a State to have a constitutional regulation limiting the possibilities to delegate decision-making authority. In Sweden, this type of regulation can be found in Chapter 10 of the 1974 Instrument of Government. This article contains an analysis of how the Swedish regulation is constructed, taking into account both a national constitutional law perspective, and an international law perspective. The main conclusion is that the construction is problematic, since an international delegation is treated more or less like a delegation from one internal body to another. The architects of the regulation do not seem to have taken into account the international law perspective to any larger extent. Three aspects of the problem are highlighted in the article, and a few suggestions on how the regulation could be changed are made.

Environmental Constitutionalism in the United States and Nigeria: Recognizing Environmental Rights

Environmental constitutionalism is a scheme that protects the national and international environment by applying national and global constitutional law. By this, constitution-makers agree to include in their constitutions provisions aimed at environmental protection and sustainability, whereby procedural and substantive rights are written in the constitutions. The courts are in such jurisdictions called upon to enforce and protect such rights. This article addresses constitutionally embedded rights in the national constitutions of the United States of America and Nigeria. It analyzes constitutional environmental provisions in both how their judiciaries respond to such issues. This article looked at the problems associated with environmental constitutionalism in the United States and Nigeria and their connection with environmental rights. The aim is to take a holistic examination of the topic. The methodology adopted for the research is empirical. The primary and secondary sources of material selection were adopted through the use of the law libraries and the internet, books, journals and periodicals to gather information for this article. In conclusion, it was observed and recommended that no matter the similarities shared by the Untied States and Nigeria, the former has a more developed environmental jurisprudence on environmental protection by the courts. This is a truism, notwithstanding the fact that Nigeria’s constitution contains “state environmental duties”. The value of the research is that Nigeria should identify areas to be improved upon in its law and practice of environmental constitutionalism.

Conspicuous Absence and Mistaken Presence - A Note on the Ambiguous Role of Scandinavian Legal Realism in Nordic Approaches to International Law

This contribution deals with more methodological and theoretical issues in relation to the study of Nordic approaches to international law. It focuses, in particular, on the role played by Scandinavian realism in relation to two different aspects of this question. On the one hand, there is the legal political dimension of shaping international law directly in treaties. On the other hand, there is the more legal doctrinal dimension in national constitutional law having to do with the domestication of such international law particularly through the integration by national judiciaries of the case law of international courts and tribunals. In the contribution, I argue that Scandinavian realism apparently plays two rather different roles in international legal scholarship relating to these two dimensions: it is conspicuously absent in discussions about the direct shaping of international law, and it is mistakenly present in discussions about the apparently reluctant domestication of such law in the national judiciaries of the Nordic countries.

The dialectic relation between the national and the European constitutional identity in the framework of European Constitutional Law

This article intends to reflect on the concept of constitutional identities of states in the frame of the dialectic relationship between the legal order of the European Union and the national legal orders. Both the conflictual dimension of the constitutional identity and the relations of confluence that that can maximize are explored. It concludes with an open and flexible understanding of the concept of constitutional identity which can benefit the evolution of the national constitutional law in an Europeist sense and the progressive transformation of the European legal system in aconstitutional sense.

Integrity or Openness? Reassessing the History of the CJEU’s Human Rights Jurisprudence†

This Symposium highlights the different comparative law methods used by the contributors and at the same time reveals a common theme, namely the difficult tension facing the Court of Justice of the European Union (CJEU) in maintaining the integrity and exclusivity of EU law in a unique supranational system, while simultaneously maintaining an openness to the legal traditions of its constituent states and other judicial systems. This emerges in the Court’s views on one particular foreign source of law: the European Convention on Human Rights (ECHR). Starting in the 1970s, the CJEU began imagining the basic set of fundamental rights that could be found both in the general principles of the original treaties and in the constitutional traditions of the member states. When the Court began articulating these in the Internationale Handelsgesellschaft ruling, it was met with stiff opposition for the first time by the constitutional courts of the member states, the erstwhile guardians of human rights across the Union. Faced with this resistance, the Court was pushed to articulate its rights doctrine, which it did by including the ECHR in its Nold ruling of 1974. Still insufficiently appeased, the national courts continued their demands. Efforts to mediate this crisis were led by the European Commission and its Legal Service, which advocated strongly for the then-Community to fully accede to the ECHR in the late 1970s. This effort was, however, stymied by the President of the CJEU in late 1978, for reasons which closely reflect the much more recent Opinion 2/13, in which a barrier on ECHR accession was also raised. Instead, the Court responded to the Commission’s continued advocacy of accession in the 1970s with its Hauer ruling of 1979, in which it cited national constitutional law and the ECHR for the first time, adroitly navigating the tension between maintaining integrity and openness in EU law.

The Swedish Riksdag as Scrutiniser of the Principle of Subsidiarity

Early Warning Mechanism – Principle of Subsidiarity – Lisbon Treaty – Protocol No. 2 on Proportionality and Subsidiarity – A theoretical definition of the Principle of Subsidiarity – The scope of the Principle of Subsidiarity – Scrutiny of the respect for the principle of subsidiarity – The role of national parliaments in the EU legislative procedure – The Swedish Riksdag – national constitutional law – decentralised scrutiny – no selection mechanism – sectoral committees – reasoned opinions – the role of the Plenary – the Committee on the Constitution – method for scrutiny – the principle of proportionality – principle of conferral – legality – European Public Prosecutor’s Office – broad or narrow scrutiny – impact of the Early Warning Mechanism

Whatever it Takes vs Whatever is Legal: The ECB's Problematic Relationship with the Rule of Law

The paper offers a reflection on how the ECB approaches its mandate and tests how well its key crisis-response policies and initiatives rest within a framework of law. It is argued that there are limits to doing ‘whatever it takes’, even when things are considered economically necessary. The Union is based on a foundation of law and excessive discretion, warranted though it may be, can undermine the whole basis of the European project. The paper offers a discussion drawing examples from the ECB's interventions in markets, and its decisions in relation to Greece, as a response to the European debt crisis. The paper then moves on to examine the nature of the ECB’s independence within the institutional structures of the EU and to define how the concept of the rule of law is understood within the European institutional setting. The investigation ends by exploring the tensions between European law, institutional decision making and national constitutional law, by looking at the backlash against the expansion of ECB competences in Germany. The paper ultimately argues that doing the right thing is not necessarily compatible with doing the legal thing. The ECB may not have been currently found to violate its mandate, but the link between economic criteria, such as conditionality, and legality (as determined by recent German challenges to Mario Draghi’s choices) is an unsteady platform from which to defend the rule of law in Europe.

Towards a Humanized International “Constitution”?

AbstractThe article argues that, by bringing a number of changes of systemic proportions in the order of international law, the internationalization of national constitutional human rights law has led to the ‘constitutionalization’ of international law. To build that argument, the paper first critically assesses the constitutionalization narrative. To that end it explains the reasons for its agnostic stance vis-à-vis the constitutionalization narrative and highlights the fact that international law has always contained some general, “constitutional” features that are particular to its systemic physiognomy. The article then explains how human rights law, as a special branch of international law, expands beyond the so-called humanization of international law narrative, acting as an important ingredient in a number of other narratives such as the constitutionalization of international law and the ones that are comparable to it, like legal pluralism and fragmentation. As to the systemic changes the internationalization of human rights has brought to the order of public international law, the examples given are those of collective enforcement at the decentralized level for the protection of common interests/values, sui generis normative hierarchy beyondjus cogensand the idea of the responsibility of states to act in a protective manner linked with the principle of due diligence and the so-called positive effect that human rights develop.

Queer Customs against the Law

This article concatenates an idea of the customary as a potential site of queer agency and mode of sovereignty against the claims of international law, national constitutional law, and customary law. It tracks the current contested emergence of the right to sexual orientation and gender identity in international law alongside the ongoing conflict between the right to sexual orientation in the South African constitution and customary law. Next, it discusses recent attempts to inhabit the customary queerly in the cases/spectacles of two queer “weddings,” one in South Africa in 2014 and one in Malawi in 2010. Finally, it turns to a compromised historical and cultural archive in the imagining of the customary as a source of new political and sexual imaginaries and as a site of circumscribed community self-determination through the possibility of the appeal to multiple authorities beneath and above the reach of the law.

State Sovereignty in the Contemporary National, International and Supranational Law

Review. The first part of this article explains the concept of sovereignty as a characteristic inherent in the modern State which should be reflected in the supremacy of its authority in its own territory and independence from any external power. This view prevailed in the middle of the 17th century, when the ideathe State is me proclaimed by Louis XIV was relevant to many countries. The sovereignty then was more or less absolute. Today, the situation is different: the supremacy of the authorities of the State within the country is limited by separation of powers and the autonomy of self-governing territorial units, as well as constitutionally recognized rights and freedoms of man and citizen. The independence of States outside is limited to participation in international organizations and treaties with other States. Among the trends in the development of constitutional law it is important to emphasize its internationalization, which is expressed in borrowing foreign experience in constitutional construction, as well as in the synthesis of national constitutional and legal provisions in the universal and regional international instruments. The process of economic, and later political, integration of a number of Western European countries which began in the 50s of the last century lead to the creation of the European Union (EU) currently consisting of 28 States. One of the consequences of the process is the emergence of supranational law governing relations within the integration association along with international law. Supranational law occupies an intermediate position between international law and national law. The possibility of integration is often provided for under national constitutional law. As far as our country is concerned, it is naturally involved in economic integration with other countries, although only post-Soviet countries so far. In conclusion, the question on relations between the European Court of human rights and the Constitutional Court of the Russian Federation is considered.