ICL Journal-Vienna Journal on International Constitutional Law最新文献_第5页

Idiosyncratic Constitutional Review in Cyprus: (Re-)Design, Survival and Kelsen 塞浦路斯的特殊宪法审查:(重新)设计，生存和Kelsen

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ICL Journal-Vienna Journal on International Constitutional Law Pub Date : 2020-12-20 DOI: 10.1515/icl-2020-0021

Constantinos Kombos

{"title":"Idiosyncratic Constitutional Review in Cyprus: (Re-)Design, Survival and Kelsen","authors":"Constantinos Kombos","doi":"10.1515/icl-2020-0021","DOIUrl":"https://doi.org/10.1515/icl-2020-0021","url":null,"abstract":"Abstract The model of the Austrian Constitutional Court, with its Kelsenian origins, has been influential in the Cypriot constitutional context in a variety of intertwined and changing ways. The initial constitutional design followed the centralized and concentrated constitutional review by the Supreme Constitutional Court. The collapse of the bi-communal structure of the Cypriot system resulted in the application of the law of necessity and the establishment of a new Supreme Court with a simultaneous decentralization of constitutional review. At the time of writing a new reform initiative is underway, and the discussion about the Austrian model and Kelsen is revived. The continuous and varied influence from the Austrian prototype and interestingly the Kelsenian logic is assessed while recognizing the delicate idiosyncrasies of the Cypriot setting. The argument is that at neither stage the Austrian model was purely applied in Cyprus and the systemic adjustments were the result of improvisation rather than model adherence. This paper highlights the inconsistencies in the understanding of the Austrian model and explains the ‘modelling vertigo’.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2020-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90023659","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}

引用次数: 0

The Relationship Between a Kelsenian Constitutional Court and an Entrenched National Ideology: Lessons from Thailand and Indonesia 凯尔森式宪法法院与根深蒂固的国家意识形态之间的关系:泰国和印度尼西亚的经验教训

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ICL Journal-Vienna Journal on International Constitutional Law Pub Date : 2020-12-20 DOI: 10.1515/icl-2020-0013

Rawin Leelapatana, Abdurrachman Satrio Pratomo

{"title":"The Relationship Between a Kelsenian Constitutional Court and an Entrenched National Ideology: Lessons from Thailand and Indonesia","authors":"Rawin Leelapatana, Abdurrachman Satrio Pratomo","doi":"10.1515/icl-2020-0013","DOIUrl":"https://doi.org/10.1515/icl-2020-0013","url":null,"abstract":"Abstract Hans Kelsen was a pro-democracy Austrian jurist, who, owing to his Jewish ancestry, was forced to flee to the United States of America after Adolf Hitler’s rise to power. His well-known theory of centralised constitutional review has not only influenced the design of many constitutional courts in Western Europe. It has also expanded to other parts of the world, including Thailand and Indonesia. Having determined to break with their authoritarian pasts, these two Southeast Asian countries decided to establish a Constitutional Court (in 1997 in Thailand and in 2003 in Indonesia), to consolidate their democratic transition as well as to safeguard democracy from attack. This decision inevitably brought the liberal-democratic assumptions underlying Kelsen’s model into competition with entrenched national ideologies traditionally exploited by political power holders and the military to preserve their hegemony – Thai-ness in Thailand and Pancasila in Indonesia. In contrast to Kelsen’s original theory, both these ideologies advocate strong leadership, national harmony and social hierarchy. This paper explores the extent to which the ideological hegemony of Thai-ness and Pancasila affects the performance and jurisprudence of the Thai and Indonesian Constitutional Courts respectively. An alternative understanding of the implementation of the Kelsenian-style Constitutional Court in the absence of its facilitative conditions will ultimately be proposed.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2020-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89401218","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}

引用次数: 0

ʻJudicial Activismʼ in Europe: Not a Neat and Clean Fit 欧洲的“司法激进主义”:并非整齐划一

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ICL Journal-Vienna Journal on International Constitutional Law Pub Date : 2020-12-20 DOI: 10.1515/icl-2020-0019

Nausica Palazzo

{"title":"ʻJudicial Activismʼ in Europe: Not a Neat and Clean Fit","authors":"Nausica Palazzo","doi":"10.1515/icl-2020-0019","DOIUrl":"https://doi.org/10.1515/icl-2020-0019","url":null,"abstract":"Abstract Achieving a proper balance between enforcing the constitution and avoiding that the courts exercise a policy-making function that that is better left to legislatures is not without its difficulties. In the United States, this issue has gained substantially higher traction giving rise to intense activism talk. The relevant American literature has exerted a deep fascination abroad, also in the light of the current globalization of constitutional discourse. Yet, the article intends to advance two claims: first, it warns against an uncritical import of US-style notions of judicial activism to continental Europe; second, it argues that contemporary research on comparative judicial activism currently has low explanatory utility. The first section takes a glimpse of the relevant US literature ‒ both legal and empirical ‒ to shed light on the multidimensional essence of the concept. Section 2 proceeds to articulate three sets of tentative reasons why activism talk should be ʻhandled with careʼ. These reasons pivot on considerations around structure, culture, and type of decisions in continental Europe. After parsing out each aspect, an argument is made that US-style judicial activism is too dependent on the US form of government; too divisive and as such unsuitable to the different European legal professional culture; and misleading, as the way European constitutional courts display activism in their decisions is distinctive. Ultimately, the article argues for the avoidance of US-style notions of judicial activism in European constitutional discourse.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2020-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83203592","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}

引用次数: 0

Mexican Supreme Court at Crossroads: Three Acts of Constitutional Politics 十字路口的墨西哥最高法院:宪法政治的三种行为

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ICL Journal-Vienna Journal on International Constitutional Law Pub Date : 2020-12-20 DOI: 10.1515/icl-2020-0022

Jaime Olaiz-González

引用次数: 2

National Human Rights Institutions: The Missing Link in Business and Human Rights Governance? 国家人权机构:企业与人权治理缺失的一环?

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ICL Journal-Vienna Journal on International Constitutional Law Pub Date : 2020-11-01 DOI: 10.1515/icl-2020-0006

Nicola Jägers

{"title":"National Human Rights Institutions: The Missing Link in Business and Human Rights Governance?","authors":"Nicola Jägers","doi":"10.1515/icl-2020-0006","DOIUrl":"https://doi.org/10.1515/icl-2020-0006","url":null,"abstract":"Abstract In 2014, the United Nations established a working group to elaborate an international treaty on business and human rights. In October 2018, negotiations on a first draft of the actually text took place. Besides this zero-draft, the working group released the draft text of an Optional Protocol containing several institutional arrangements. The Optional Protocol carves out a key role for national implementation mechanisms to promote compliance with, monitor and implement the treaty on business and human rights. With such an institutional arrangement, the future treaty would join the ranks of what can be called a new generation of human right treaties which institutionalize a top down with a bottom up approach aiming to address the disjuncture between rules and practice. The Optional Protocol indicates that this role of national implementation mechanism could be taken up by National Human Rights Institutions (NHRIs). This follows an increased recognition of NHRIs as significant actors in the business and human rights domain. Yet, the role of NHRIs in human rights governance in general, and in the business and human rights field in particular, is not yet well understood and undertheorized. The aim of this article is to add insight into the role of NHRIs in business and human rights by, first, describing some of the current activities undertaken by NHRIs in this field in order to analyze whether the role ascribed to them is actually being taken up and what challenges NHRIs face. From this perspective, it will be discussed whether the role foreseen in the Optional Protocol of the future business and human rights treaty holds promise.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2020-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82798930","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}

引用次数: 0

Ius puniendi and Constitution: A Comparative (Canadian-German) Perspective 刑法与宪法:一个比较(加拿大-德国)的视角

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ICL Journal-Vienna Journal on International Constitutional Law Pub Date : 2020-11-01 DOI: 10.1515/icl-2020-0008

引用次数: 1

Frontmatter

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ICL Journal-Vienna Journal on International Constitutional Law Pub Date : 2020-11-01 DOI: 10.1515/icl-2020-frontmatter3

引用次数: 0

Writing While Quarantined: A Personal Interpretation of Contemporary Comparative Constitutional Law 隔离中写作:当代比较宪法的个人解读

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ICL Journal-Vienna Journal on International Constitutional Law Pub Date : 2020-08-11 DOI: 10.2139/ssrn.3671148

M. Tushnet

引用次数: 0

Constitutional Disqualification: A Critique of English and English-Derived Law 宪法剥夺资格:对英语和英源法的批判

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ICL Journal-Vienna Journal on International Constitutional Law Pub Date : 2020-08-01 DOI: 10.1515/icl-2019-0056

J. Jaconelli

引用次数: 0

Trial Within a Reasonable Time and the Impact of Justice Reform in Albania 合理时间内审判与阿尔巴尼亚司法改革的影响

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ICL Journal-Vienna Journal on International Constitutional Law Pub Date : 2020-08-01 DOI: 10.1515/icl-2019-0053

Jonad Bara, B. Bara

{"title":"Trial Within a Reasonable Time and the Impact of Justice Reform in Albania","authors":"Jonad Bara, B. Bara","doi":"10.1515/icl-2019-0053","DOIUrl":"https://doi.org/10.1515/icl-2019-0053","url":null,"abstract":"Abstract Since becoming a potential candidate country for the EU accession in 2000 and in particular after being granted candidate status in June 2014, Albania has taken many positive steps to meet the necessary standards for its EU integration, through among other things, strengthening democracy and the rule of law and the harmonization of its national legislation with the acquis communautaire. In 2016, as part of the pre-conditions for the opening of the accession negotiations for the country, the Albanian Parliament passed a major justice reform which brought about many constitutional and legislative changes, as well as changes to the organization and functioning of justice institutions in Albania. A key component of the reform was the transitional re-evaluation of judges and prosecutors (also known as the vetting process). While the reform itself was supported and praised by the EU and international institutions, the vetting process has affected the functioning of the Albanian judiciary at all levels. The paralysis of the justice system due to the low number of judges who successfully passed the vetting process, as well as the resignation of many others, has significantly increased the backlog and the number of pending cases before the courts. Thus, the aim of the paper is to analyze the influence of the justice reform on individual’s right to a fair trial within a reasonable time in Albania and state’s obligations to guarantee this right as provided by the Constitution of Albania and the European Convention on Human Rights.","PeriodicalId":41321,"journal":{"name":"ICL Journal-Vienna Journal on International Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2020-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90622000","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}

引用次数: 0