ICL Journal-Vienna Journal on International Constitutional Law最新文献

{"title":"Contingent Power in the 21st Century Against the Backdrop of Hegel’s Philosophy of Right – Trump and Twitter as Two Sides of the Same Coin?","authors":"Elisabeth Paar, Nikolas Raunigg","doi":"10.1515/icl-2021-0031","DOIUrl":"https://doi.org/10.1515/icl-2021-0031","url":null,"abstract":"Abstract The Owl of Minerva only spreads its wings at dusk. This Hegelian realization might also apply to the last days of Donald Trump in office which brought about many a precedent in the relationship not only between the then President of the United States and its constitution but also between him and his main means of communication: Twitter. The president’s tumultuous communication surrounding the transition of power climaxed in an angry mob storming the Capitol in a vain attempt to – dependent on whose narrative one credits – either restore or abolish democracy. Twitter’s subsequent decision to ban Trump from using its services for arguably inciting or at least condoning the insurrection quickly led to heated discussions rooted in the issue of the allocation of power within contemporary societies. At the core of these discussions lie two central elements: freedom and the (legitimate) power to restrict it. One side argued that the platform operators had infringed Trump’s freedom of speech. In contrast, the other side claimed that abridging Trump’s ability to communicate whatever came to his mind was an inevitable step to protect the American constitutional order and thus liberal democracy. Meanwhile, attention has gradually been focused on the larger underlying issues. One common aspect is that both positions seem to presuppose a concept of freedom that is all too formalistic. On a more abstract level, the events also boil down to a clash of two separate claims to power: Social media operators opposing the head of state’s claim to do as he wishes. Thus, the paper aspires to analyze the sources of legitimacy for the actions taken by platform operators and their respective counterparts. The analysis is based on Hegel’s Philosophy of Right. In particular, Hegel’s understanding of freedom, the ideal state and of possible legitimate sources for universal rules shall be put to use. The first point of contact in Hegel’s Philosophy of Right is his view of the head of state, his relation to the law, especially to the constitution, and to his constituents. Against this backdrop, it shall be determined how power is distributed in Hegel’s state. Then, an attempt shall be made to transfer the underlying ideas and considerations to the power structure and the legitimizing factors as they are laid down in the US Constitution. Furthermore, the paper examines the state’s possibilities to react to possibly problematic behavior of the head of state. The focus will be placed on the possibility of holding them accountable for actions directed against the state itself or its constitutional order. Particularly against the backdrop of the questionable efficacy of impeachment procedures in deeply divided nations, the question arises as to whether private actors can legitimately intervene. Concretely, whether social media operators may legitimately bar heads of state from using their platforms in order to protect the state, the legal system or democracy.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2022-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81845803","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Follow the Leader? A Comparative Law Study of the EU’s General Data Protection Regulation’s Impact in Latin America","authors":"Arturo J Carrillo, Matías Jackson","doi":"10.1515/icl-2021-0037","DOIUrl":"https://doi.org/10.1515/icl-2021-0037","url":null,"abstract":"Abstract In May 2018, the General Data Protection Regulation (GDPR) entered into force in the European Union. As is widely recognized, its impact goes beyond the borders of the old continent, permeating through the regulatory processes of countries all over the world. Nowhere is this more evident than in Latin America, where governments have long emulated European data protection standards. Professor Anu Bradford has famously characterized this phenomenon as a prominent example of ‘the Brussels Effect,’ defined as Europe’s unilateral power to regulate global markets. Other scholars see a more complex dynamic at play. This is especially true in the data privacy context in which the EU has benefited from a highly transplantable legal model and normative innovations that have proved successful in a global marketplace of ideas. This Article joins the debate around the EU’s transnational influence on the regulation of personal data by evaluating the de jure impact that the GDPR has had in Latin America to date. To this end, the Article addresses three main questions. First, what is the panorama of data privacy legislation across Latin America since the 2016 adoption of the GDPR? Second, how have those countries in the region that have moved first to reform or enact data privacy legislation in light of the GDPR’s key innovations done so? And finally, what lessons can be learned from the Latin American experience based on the responses to these questions? In responding, the Article looks first at which countries in the region have introduced or proposed changes to their legislation in the wake of the GDPR’s enactment in 2016. It then evaluates the experience of key jurisdictions in greater detail, namely Brazil, Mexico, Chile and Uruguay, to determine what lessons can be drawn from their efforts. By pursuing these inquiries, the authors shed new light on the debate surrounding the nature of the de jure dimension of ‘the Brussels Effect’ in the region.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2022-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90467531","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Three Years with Coman: How Much Has Changed?","authors":"Lenka Křičková","doi":"10.1515/icl-2021-0039","DOIUrl":"https://doi.org/10.1515/icl-2021-0039","url":null,"abstract":"Abstract In 2018, the ECJ ruled in its landmark Coman judgment (C-673/16) that same-sex spouses of EU citizens exercising their freedom of movement must be granted a right of residence even in Member States that do not recognize same-sex marriages. Looking back on the judgment after 3 years, this article reviews the academic reactions which ranged from criticism to celebration of the judgment. Using the example of the Czech Republic, it then assesses the judgment’s practical impact to see whether the initial expectations regarding future development came true, and identifies potential barriers in the national law that could still hinder free movement of same-sex couples. Finally, the article discusses what lessons can be learnt from the Coman judgment for other similar cases before the ECJ, especially those concerning the status of children born to same-sex couples. The article argues that there have been no noticeable changes in Czech law ascribable to the Coman judgment. This suggests that beyond the narrow holding strengthening the same-sex couples’ residence rights, though symbolically and practically important, possible greater impact of the Coman case on Member States’ national law should not be overestimated. However, the judgment’s significance lies in its potential to shape the future ECJ’s case-law because the free movement framework used in Coman can be similarly applied to cross-border recognition of same-sex couples and families for other purposes than residence rights. If the ECJ does so in the upcoming cases and properly tackles the Member States’ national identity or public policy objections, further developments of gay rights through EU law might take place.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2022-04-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73454948","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Health as a Purpose or as a Right – The Principle of Proportionality and the Measures Against the Covid-19 Pandemic","authors":"Gabriel Ducatti Lino Machado","doi":"10.1515/icl-2021-0042","DOIUrl":"https://doi.org/10.1515/icl-2021-0042","url":null,"abstract":"Abstract The Covid-19 pandemic has given cause for serious restrictions of fundamental liberty rights. In the legal doctrine of fundamental rights, the classical tool for the assessment of the material constitutionality of interferences with fundamental rights is the principle of proportionality. Indeed, the material determinant of the principle of proportionality is the intensity of the intervention in the fundamental right. One preliminary question, however, is often underestimated: the question as to the constitutional status of the interests protected or promoted by the intervening measures. After outlining the structure of the principle of proportionality, this article investigates the constitutional status that the interests protected by Covid-19 measures might have: is the protection of people’s health merely a legitimate purpose or a right? Finally, this article shows, with recourse to decisions of the German and Brazilian Constitutional Courts, the implications that different classifications have for the principle of proportionality.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2022-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88712098","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Treaties in the Philippine Constitutional System","authors":"D. Desierto","doi":"10.1515/icl-2021-0035","DOIUrl":"https://doi.org/10.1515/icl-2021-0035","url":null,"abstract":"Abstract International law has always had a dual significance to the Philippine constitutional system. On the one hand, the frequent articulation of international law principles within modern Philippine constitutional norms, statutes, and administrative rules demonstrate an outward-looking normative ethos – one I have described in other scholarship to be consistent with the 1987 Philippine Constitution’s ‘universalist history’. On the other hand, the considerable volume of Philippine jurisprudence applying international law norms to date overwhelmingly illustrate how Philippine litigants have strategically deployed international law (most especially international human rights law) over the years, as an acceptable external legal basis to hold Philippine government leaders to account under the vastly expanded judicial review doctrine in the 1987 Philippine Constitution. This active individual and group resort to adjudication and legislation could explain why international law has flourished under the postcolonial and post-dictatorship 1987 Philippine Constitution. This comprehensive jurisprudential, statutory, and constitutional analysis aims to show how, and to what degree, Philippine legal culture and history reflect a continuing deep engagement with international law, in ways that are certainly unique to the Philippines’ evolving political ideologies, colonial and postcolonial history, treatment, and implementation of international treaties within the Philippine constitutional system. Most importantly, the absence of explicit methodology for the breadth of constitutional interpretation of the Incorporation Clause under the 1987 Philippine Constitution warrants normative rethinking, so as not to uniformly open the floodgates to hard international law sources (eg treaties, customs, general principles) as well as softer international instruments lacking the requisite State consent to the binding quality of such sources within the Philippine legal system. To this end, I make three proposals on how the Philippine Supreme Court could define an explicit methodology for use and interpretation of the Incorporation Clause, transparently refer to other foreign and international sources, and openly reassess its ideological bases for recognition of international law in the Philippine constitutional system, as part of the Court’s distinct judicial function.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2022-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87214079","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Convicted Individuals as a Group Stigmatised by the State in the Case Law of the Constitutional Court of the Republic of Latvia","authors":"S. Osipova","doi":"10.1515/icl-2021-0027","DOIUrl":"https://doi.org/10.1515/icl-2021-0027","url":null,"abstract":"Abstract This research aims at analysing the Constitutional Court’s case law in respect of restrictions on the fundamental rights of convicted individuals in correlation with society’s view of convicts. To do so, along with the methods of legal science (analysis of legal provisions and case law) the research uses sociological concepts, methods, and sources. The fundamental rights of an individual require the State to protect every individual’s human dignity in equal measure. However, even modern-day society still stigmatises particular groups of individuals, restricting their rights without good reason. The case law of the Constitutional Court of Latvia marks convicted individuals as a stigmatised group with limited rights. In the cases analysed, not even the minimum standards of fundamental rights protecting personal privacy were applied to persons serving a sentence for serious offences, with no individual assessment provided for, because society’s opinion, among other things, denies prisoners such fundamental rights. Furthermore, the convicted individuals may suffer from a life-long stigma as they keep being restricted in their rights – eg the rights to employment or to family life – even after the conviction is expunged. The State has to realise: if it limits the possibilities for convicted individuals to lead life with enjoying full rights, the probability of repeated offences by such individuals will be higher. By unreasonably restricting inclusion of convicted individuals in its life, society endangers rather than protects itself.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2022-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87201329","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Balancing Competences and the Margin of Appreciation: Structuring Deference at the ECtHR","authors":"C. A. Chagas","doi":"10.1515/icl-2021-0009","DOIUrl":"https://doi.org/10.1515/icl-2021-0009","url":null,"abstract":"Abstract The margin of appreciation is an important argumentative framework employed by the ECtHR. Through its application, the Court may establish a balanced relationship with the member states. This is why the margin is one of the main sources for the ECtHR’s exercise of deference. Deference happens when low intensity of review is applied – or a wide margin. Therefore, to properly know when to act deferentially demands a clear procedure to determine the intensity of review. However, the application of the margin still presents some weak points and lacks consistency. In this paper, I defend the possibility of applying formal balancing to provide a clearer structure for the exercise of the margin of appreciation and, thus, a way to improve deferential practices by the ECtHR. With the clear structure of balancing, factors are employed in a more organized manner and the relationships behind the idea of determining the intensity of review are explicitly justified. Hence, the notion and structure of balancing competences organize the margin of appreciation in a way to free it from its main criticisms and fulfill the argumentative potential it has.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2022-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82092323","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Democratic Commitment as Marker of Successful Constitution-Making: Donald L Horowitz, Constitutional Processes and Democratic Commitment (Yale University Press 2021)","authors":"Aistė Mickonytė","doi":"10.1515/icl-2021-0046","DOIUrl":"https://doi.org/10.1515/icl-2021-0046","url":null,"abstract":"","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2022-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83178814","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Schoolchildren’s Right to Education and Freedom of Religion in the Case Law of the ECtHR: Comments on Papageorgiou v Greece","authors":"G. Milios","doi":"10.1515/icl-2021-0026","DOIUrl":"https://doi.org/10.1515/icl-2021-0026","url":null,"abstract":"Abstract The article deals with the schoolchildren’s right to education and freedom of religion in the case law of the ECtHR, with a special focus on the case Papageorgiou v Greece adopted in October 2019. In the case at hand, the applicants challenged the content of the religious courses in Greece as well as the opt-out procedure offered for parents who did not wish their children to participate in the religious course. The Court concluded that the exemption procedure violated Art 2 of Protocol 1 of the ECHR. After examining previous case law of the ECtHR on similar cases, the article focuses on the most striking parts of the Court’s judgment in Papageorgiou. In particular, the ECtHR only considered the exemption procedure from the courses offered, and made no reference to, or examination of, the courses themselves. In addition, the perspective related to the right to private life is also missing. The article concludes by commenting that the Court’s judgment had already had an impact on the case law of the Greek Supreme Administrative Court.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2022-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85950730","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Societal Constitutionalism: Background, Theory, Debates","authors":"Angelo Jr Golia, Gunther Teubner","doi":"10.1515/icl-2021-0023","DOIUrl":"https://doi.org/10.1515/icl-2021-0023","url":null,"abstract":"Abstract The article provides a systematic outline and refinement of societal constitutionalism (SC), one of the frameworks emerged in contemporary legal theory to analyse constitutional phenomena. After an introduction in Section 1, Section 2 summarises SC’s theoretical background, namely the debates on the Economic Constitution (2.1), legal pluralism (2.2), systems theory (2.3), and the work of David Sciulli (2.4). Section 3 explains SC’s analytical limb, which on the one hand criticises some tenets of state-centred constitutionalism (3.1); and on the other hand identifies functions, arenas, processes, and structures of a constitutionalised social system (3.2). Section 4 turns to SC’s normative limb, pointing to some constitutional strategies that increase social systems’ capacities of self-limitation (4.1); and develop a law of inter-constitutional collisions (4.2). Section 5 addresses the main competing approaches and criticisms, which are based on state-centred constitutionalism (5.1); on international/global constitutionalism (5.2); and on contestatory/material constitutionalism (5.3).","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2021-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83578552","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}