Icon-International Journal of Constitutional Law最新文献_第10页

Constitutional review of negotiated international investment agreements: Strengths and shortcomings of the Colombian Constitutional Court’s approach 对谈判达成的国际投资协定的宪法审查：哥伦比亚宪法法院做法的优点和缺点

IF 1 3区社会学

Icon-International Journal of Constitutional Law Pub Date : 2022-08-08 DOI: 10.1093/icon/moac037

J. C. Ochoa-Sánchez

{"title":"Constitutional review of negotiated international investment agreements: Strengths and shortcomings of the Colombian Constitutional Court’s approach","authors":"J. C. Ochoa-Sánchez","doi":"10.1093/icon/moac037","DOIUrl":"https://doi.org/10.1093/icon/moac037","url":null,"abstract":"\u0000 Increasingly, international investment agreements (IIAs) and investor–state dispute settlement (ISDS) mechanisms relate to, and at times conflict with, constitutional rights, principles, and rules. Because of this interrelationship, since 2017, constitutional courts in several regions of the world have had to examine constitutional charges brought against IIAs when conducting their ex ante constitutional review of negotiated IIAs. In order to fill significant gaps in the current literature on the subject, this article conducts an in-depth analysis of the judgment of the Colombian Constitutional Court (CCC) which examined the constitutionality of the negotiated bilateral investment treaty (BIT) between Colombia and France (“the investment Agreement”). This article demonstrates that, while the CCC’s judgment has several positive aspects, it also has some significant shortcomings. The Court set the basis for a stricter ex ante constitutional review of IIAs, specifically the rationales, methods, and grounds for review that constitutional courts can use to conduct such a review. The Court also shed light on the methodology to interpret IIAs, the conditional constitutionality approach, and orders that constitutional courts can adopt in this type of review. However, this article demonstrates that the Court’s review over many aspects of the three sets of elements that it covered—i.e. the investment Agreement as a whole and the Agreement’s provisions on standards of treatment and ISDS, was not thorough or it applied a looser test than its reasonableness test. This research also shows that the Court did not engage in review of the investment Agreement concerning its compatibility with economic, social, and cultural rights.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42340058","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Reflecting on the ethical commitments of our role 反思我们角色的道德承诺

IF 1 3区社会学

Icon-International Journal of Constitutional Law Pub Date : 2022-08-08 DOI: 10.1093/icon/moac042

Thomas Bustamante

引用次数: 0

Explaining continuity and change: The case of the Euratom Treaty 解释连续性和变化:以欧洲原子能共同体条约为例

IF 1 3区社会学

Icon-International Journal of Constitutional Law Pub Date : 2022-08-08 DOI: 10.1093/icon/moac041

Anna Södersten

引用次数: 0

Altneueland – European Law Open published by Cambridge University Press: Welcome Altneueland-剑桥大学出版社出版的欧洲法律公开赛：欢迎

IF 1 3区社会学

Icon-International Journal of Constitutional Law Pub Date : 2022-08-08 DOI: 10.1093/icon/moac050

引用次数: 0

Judges as equilibrists: Explaining judicial activism in Latin America 作为平衡者的法官:解释拉丁美洲的司法能动主义

IF 1 3区社会学

Icon-International Journal of Constitutional Law Pub Date : 2022-08-08 DOI: 10.1093/icon/moac044

G. Pereira

引用次数: 1

Para-constitutional engineering and federalism: Informal constitutional change through intergovernmental agreements 准宪法工程与联邦制：通过政府间协议进行的非正式宪法改革

IF 1 3区社会学

Icon-International Journal of Constitutional Law Pub Date : 2022-08-08 DOI: 10.1093/icon/moac040

J. Poirier, Joan M. Hartery

{"title":"Para-constitutional engineering and federalism: Informal constitutional change through intergovernmental agreements","authors":"J. Poirier, Joan M. Hartery","doi":"10.1093/icon/moac040","DOIUrl":"https://doi.org/10.1093/icon/moac040","url":null,"abstract":"\u0000 This article explores the phenomenon of informal constitutional change with a particular focus on the role played by intergovernmental agreements (IGAs) concluded between members of a federation. It has two objectives. The first is to add IGAs to the catalogue of methods through which constitutions are altered without recourse to formal amendment procedures. Using Canada as a case study, we highlight a paradox: by rendering unconstitutional certain legislative initiatives meant to circumvent formal rules of constitutional amendment, courts are actually inviting political actors, notably the executive branches, to resort to even more fluid and informal methods of altering the Constitution. Second, we bring the concept of “para-constitutionality” into the broader literature on informal constitutional change. Para-constitutionality captures two distinct dimensions of informal constitutional change which are often conflated. “Para” in the Greek sense signifies “circumvention.” The focus here is on effectivity, on the impact of mechanisms (such as IGAs) on the overall constitutional order. By contrast, “para” in the Latin sense means “against.” It is concerned with constitutional (in)validity. We seek to underscore that even when strategies are not found to be unconstitutional, they may nevertheless have a transformative impact on the overall federal architecture. In conclusion, we suggest that an implicit commitment to intergovernmental transactions and compromise, both inherent to federalism, may explain judicial benevolence in the face of negotiated para-constitutional engineering mechanisms, in contrast to unilateral legislative attempts at informal constitutional change.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49262742","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

On scholactivism in constitutional studies: Skeptical thoughts 论宪法研究中的经院行动主义:怀疑论

IF 1 3区社会学

Icon-International Journal of Constitutional Law Pub Date : 2022-08-08 DOI: 10.1093/icon/moac039

Tarunabh Khaitan

引用次数: 1

Constitutional identity, expressivism, and constitutional change through judicial interpretation: The Indonesian LGBT case as a case study 宪法认同、表现主义与司法解释下的宪法变迁:以印尼LGBT个案为个案研究

IF 1 3区社会学

Icon-International Journal of Constitutional Law Pub Date : 2022-08-08 DOI: 10.1093/icon/moac045

Ignatius Yordan Nugraha

{"title":"Constitutional identity, expressivism, and constitutional change through judicial interpretation: The Indonesian LGBT case as a case study","authors":"Ignatius Yordan Nugraha","doi":"10.1093/icon/moac045","DOIUrl":"https://doi.org/10.1093/icon/moac045","url":null,"abstract":"\u0000 Constitutional change can be produced through judicial interpretation when a particular dictum becomes informally entrenched and creates a new constitutional meaning without the need for a formal amendment. However, scholarship has not yet scrutinized the form of legal reasoning that may be used to push for such a change. The purpose of this article is to analyze the role of expressivism in justifying constitutional change through judicial interpretation. For this purpose, I have developed the expressivist framework into what I call “operationalized expressivism,” which refers to constitutional courts interpreting references to constitutional identity in the constitution such as to create a juridical effect. I then use the dissenting opinion in the Indonesian LGBT case as a case study of how operationalized expressivism can initiate a constitutional change. I have selected this particular opinion because of its potential to radically transform the constitutional landscape of Indonesia, as the dissenting judges have declared the Indonesian Constitution as a “Godly” Constitution that requires all laws to be consistent with religious values.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":"1 1","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41474971","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

“Scholarship is about knowledge, not justice” “学术关乎知识，而非正义。”

IF 1 3区社会学

Icon-International Journal of Constitutional Law Pub Date : 2022-08-08 DOI: 10.1093/icon/moac043

J. Komárek

引用次数: 0

Necessity or balancing: The protection of rights under different proportionality tests—Experimental evidence 必要性还是平衡：不同比例检验下的权利保护——实验证据

IF 1 3区社会学

Icon-International Journal of Constitutional Law Pub Date : 2022-07-08 DOI: 10.1093/icon/moac036

Talya Steiner, Liat Netzer, R. Sulitzeanu-Kenan

{"title":"Necessity or balancing: The protection of rights under different proportionality tests—Experimental evidence","authors":"Talya Steiner, Liat Netzer, R. Sulitzeanu-Kenan","doi":"10.1093/icon/moac036","DOIUrl":"https://doi.org/10.1093/icon/moac036","url":null,"abstract":"\u0000 Despite its global proliferation, there is no standard formulation for proportionality analysis. The result is debate over the optimal formulation and application of the doctrine and the ramifications of adopting different versions. A subset of this debate relates to which element of the doctrine provides rights with greater protection against competing public interests. Although this dispute is essentially empirical, arguments on the matter remain strictly theoretical. This study presents the first experimental analysis of the effects of specific subtests of proportionality analysis on the level of protection afforded to rights. We find strong evidence that applying proportionality in terms of the necessity test—whether there are less restrictive means—results in greater protection of rights in policy decisions than does applying proportionality in terms of the strict proportionality test—balancing the benefit against the harm. The findings suggest that including a necessity component within the proportionality doctrine, and emphasizing it as a central stage of the analysis, can enhance the protection of rights in decisions regarding rights-restricting policy.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46853546","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1