the 10th World Congress of Constitutional Law (IACL-AIDC)
2018 SEOUL 18-22 June 2018
"Violent Conflicts, Peace-Building
and Constitutional Law."
the DATE & LOCATION
for 27 Workshops
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WORKSHOP #1 The Debate on Establishment of the World Constitution
Andrew L. Strauss (USA) (firstname.lastname@example.org)
Byong Yoon, Cho (Korea) (email@example.com)
1. Abdulfatai Olad. Sambo (Nigeria) / Constitutionalism of Federalism in the Framework of a World Constitution - A challenge to Global Constituionalism
2. Birgit Aasa (Estonia) / Trust as Constituinalism - its theoretical and practical potentials. The example of EU.
3. Giuseppe Martinico (Italy) / Overcoming False Dichotomics. Constitutionalism and Pluralism in European and International Studies
4. Glen T. Martin (U.S.A.) / Philosophical-Constitutional Assumption behind The Constitution of Earth.
5. Hannah Birkenkötter (Germany) / Is there a rule of law beyond the state?
6. Hakseon JEON (Korea) / La Constitution mondiale et la Signification de l'Etat
7. ZinWan Park (Korea) / The justification of the world constitutional order from a standpoint of international constitutionalism
8. Tanja Karakamisheva-Jovanovska (Macedonia) / Venice Commission's Role in the World of Global Constitutionalism
9. Troanta R.T. Dragos (Romania) / Governing the whole world in the age of globalization
10. Viacheslav Sevalnev (Russia) / Revolutionary development/evolution of Constitutional Law - Experience implementing the Constitution of Russian Federation
11. Vlad Perju (U.S.A) / Elements of a Doctrine of Universal Constituinal Norm
12. Vu Cong Giao (Vietnam) / Constituinalism vs Socialism : Reflextion on the Vietnamese Context
This workshop will explore the universal concept of constitutionalism for the adequate constitutional dimension and the universal methodology for “the Establishment of the World Constitution” as the ultimate and fundamental solution in the 21st century for the new global challenges to traditional constitutionalism in ways such as world politics, armed conflicts, terrorism and violence, global geopolitical tensions, regional confrontations, various types of violent conflicts requiring particular solutions for peace-building and the protection of fundamental human rights.
This workshop will examine developments in global constitutionalism using both descriptive and prescriptive frames of reference. Descriptively, can the global order be fairly characterized as evolving toward a world constitutional system, and prescriptively, should governments and/or civil society work towards the creation of a written world constitution?
The descriptive analysis involves an assessment of the current global order. Though highly fragmented, the international political system arguably has the rudiments of a constitutional framework.
In terms of norm creation and execution, it has the making of Montesquieuian political and executive branches revolving around the United Nations Security Council, General Assembly and Secretariat as well as the myriad of global and regional multilateral organizations with decision-making and administrative structures.
In terms of the ability to adjudicate disputes, the International Court of Justice is a court of general subject matter jurisdiction, and we now additionally have a system of specialized regional and international courts that adjudicate matters ranging from trade to human rights to the law of the seas.
The system has also made impressive strides towards developing core human rights norms, and evolving principles of subsidiarity delineate the lines of state versus international authority.
The prescriptive question can be broken down into two components:
1. Is there a benefit to formalizing the evolving global institutional structure?
2. If so, do the prospects for successfully concluding a global parliamentary initiative warrant the opportunity cost of a sustained political initiative.
The following exemplify of the kinds of paper proposals we are seeking to elucidate these descriptive and prescriptive themes:
1. Will a functionalist or neo functionalist process of regime based incremental growth effectively lead to the creation of a well-developed world constitutional order? If so, what will the process of creation look like?
2. Would Article 109 of the United Nations Charter or another vehicle be the most effective means of creating a process for establishing a world constitution?
3. What can we learn, if anything, from the most famous attempt to create a framework for a world constitution, Grenville Clark’s and Louis Sohn’s World Peace Through World Law 1950’s era project?
4. What role should be assigned to the citizenry as opposed to states in a world constitutional system?
* The workshop welcomes papers from constitutional, international and public law scholars everywhere with a research interest in, and possible topics are, but are not limited to:
• Universal concept of constitutionalism
• The need and methodology for the establishment of the World Constitution
• Universality of human dignity
• Constitutional Education of Human Dignity for the Establishment of the World Constitution
• World Parliament
• Global democracy: consider a more democratic global system
• The creation of a world assembly of peoples: the legitimacy and power of popular sovereignty
• Governing the whole world.
WORKSHOP #2 Abuse of the Constitution in Times of Emergency
Richard Albert (Canada) (firstname.lastname@example.org)
Martin Scheinin (Finland/ Finlande) (email@example.com)
1. Merris Amos (U.K.) / Abuse of the Constitution for Political Gain: The United Kingdom’s Proposed Derogation from Article 15 of the European Convention on Human Rights
2. Maria Diaz Crego (Spain) / Recent emergency situations in Europe: lessons to be learnt from the European Court of Human Rights’ case law on art. 15 ECHR
3. Timea Drinoczi (Hungary) / Formulas from the Central and Easter in European region to abuse and observe the constitutions in times of emergency
4. Michal Jackowski (Poland) / Constitutional amendment and constitutional change as a result of a breach of a constitution in times of emergency
5. Valentina Rita Scotti (Turkey) / The state of emergency in Turkey and the ‘dialogue’ with the Council of Europe
6. Scott Stephenson (Australia) / Informal Emergency Mechanisms: Political Backlash against Courts
7. Claudia Suárez Gallo (Argentina) / The Abuse of Economic Emergency in Argentina
8. Oğuzhan Bekir Keskin (Turkey) / Rethinking Presuppositions of Liberal Constitutionalism in Order to Prevent Exceptions Turning into Norms
9. Ivi-Angeliki Mavromoustakou (Greece) / Un gouvernement “légiférant de facto”i: l’application des cas exceptionnels au cours de la crise de la dette en Grèce
10. Alexandros Kessopoulos (Greece) / Economic crisis, austerity measures and the marginalization of Parliaments: the Greek example through a historical perspective
11. Prashant Sabharwal (Germany) / Fool Me Twice? Past abuse of emergency provisions and the constitutional lessons learnt
12. Carolina Cerda-Guzman (France) / L’urgence de sortir des états urgence : les abus dans le maintien des états d’urgence
13. Tinashe Brian Mugauri (South Africa) / Abuse of the Constitution in Times of Emergency
14. Sanaa Alsarghali (Palestine) / Once Powers are Unleashed they are Hard to Constrain: Executive Authority Ruling in Palestine
Many contemporary constitutions include one or more clauses related to a state of emergency. These clauses may alter the normal division of powers, typically between an elected parliament and an executive, or they may allow for derogations from some constitutionally protected fundamental rights. Often the latter type of emergency clauses are modelled along the lines of the derogation clauses in international human rights treaties (ICCPR art. 4, ECHR art. 15, IACHR art. 27), while there is much more diversity as to how a state of emergency may affect the powers and competences of various state organs.
As history has shown, the power to declare an emergency is susceptible to abuse not only in the politically expedient interests of self-entrenchment and the suppression of opposition, but also in order to achieve otherwise contested priorities or policy objectives that would be unattainable in ordinary times in the face of an effective opposition capable of delaying or thwarting them.
Have constitutional designers developed effective mechanisms to constrain the exercise of the power to declare an emergency? Does law have a role in times of emergency? To what end? Should we accept that law has little to say about such a state of affairs—one that is more political than legal? Or should law come to terms with the reality that it will forever remain defenseless in the face of pure power-plays that we often identify with prolonged declarations of emergency? Whether or not law has a role in policing the conduct of political actors during times of emergency, can it be denied that “sovereign is he who decides on the exception,” as Carl Schmitt famously declared?
This Workshop will inquire into the risk of abusing constitutional emergency clauses for purposes beyond what is necessary to respond to the emergency with measures that would legitimately aim at the restoration of normalcy while at the same time effectively containing the threat to the nation. The types of “abuses” we hope to discuss on the basis of papers submitted from Workshop participants include:
• Invoking the emergency clause(s) in the absence of any actual emergency;
• Using an emergency as an opportunity to introduce permanent change, in contrast to temporary measures aimed at the restoration of normalcy;
• Deploying emergency powers to curtail opposition (political parties, new social movements, dissidents, trade unions, free media, indigenous peoples, or minority or religious groups);
• Re-organizing the state administration with the purpose or effect of purging the administration, judiciary or academia of people not regarded as “loyal” to the regime;
• Centralizing powers into the hands of the executive at the expense of the elected parliament or the constituent units of a federal state;
• Breaching non-derogable rights;
• Invoking an emergency for the wholesale suspension of fundamental rights, rather than imposing measured restrictions upon them;
• Introducing restrictions to rights that as such are subject to legitimate derogation but without satisfying the requirements of necessity and proportionality;
• Using the emergency clause(s) to legitimize breaches of the country’s international commitments, including human rights obligation.
This Workshop will be structured around common themes drawn from the accepted papers. It will feature several moderated discussions rather than individual presentations. The Workshop co-chairs will introduce each theme, followed by open discussion and debate among Workshop participants, with time allotted to those authors whose papers relate to a given theme. The chosen themes will be announced to all authors prior to the Workshop, and all accepted papers will be made available online to Workshop participants in advance of the program.
Submissions are welcome from scholars of all levels, including doctoral candidates in law and related disciplines. The Workshop co-chairs will endeavor to assemble a group that reflects a diversity of perspectives, national origins, seniority and methodological approaches.
To participate in this Workshop, please email an abstract of roughly 500-750 words to:
All abstracts should indicate the name, institutional affiliation and contact information of the author(s). All abstracts should also state clearly the title of the Workshop for which it is intended.
WORKSHOP #3 State of Emergency
Eva Brems (Belgium) (Eva.Brems@UGent.be)
Charles Fombad (Cameroon/ Cameroun) (firstname.lastname@example.org)
1 Sanaa Alsarghali (Palestine) / Normalizing the exception: Exlusive authority ruling in Palestine
2 Eva Schulev-Steindl (Austria) / Resilience of law in times of crisis - The Austrian perspective with a view to other European countries.
3 Osayd Awawda (Australia) / The Palestinian Constitutional Court's review of the state of emergency in Palestine
4 Samo Bardutzky (Slovenia) / State of exception and sovereignty of interdependent states: Lessons from the responses to the arrival of refugees to Europe along the Balkan route 2015-2017.
5 Rawin Leelapatana (Thailand) / The Kelsen-Schmitt debate on the nature and use of emergency powers revisited: The lesson from Thailand's binary stars.
6 Lukman Abdulrauf (Nigeria) / States of emergency and the rule of law under modern African constitutions
7 Olivier Le Bot (France) / Le droit au juge sous l'état d'urgence
8 Priscilla Jensel-Monge (France) / Le Parlement francais et la lutte contre le terrorisme: une atténuation du déséquilibre institutionnel de la Ve Republique
9 Audrey De Montis (France) / Le Parlement francais et la lutte contre le terrorisme: une atténuation du déséquilibre institutionnel de la Ve Republique
10 Tolga Sirin (Turkey) / Governing with emergency law without review: A Turkish case
11 Saul Tourinho Leal (Brazil) / The Brazilian use of military forces to face the urban violence in Rio de Janeiro
12 Marciej Pisz (Poland) / Extra lege legislative powers for the executive during states of emergency in contemporary Polish constitutional law
13 Surabhi Chopra (Hong Kong) / Judging the troops: Exeptional security measures and judicial impact in India
14 Asem Khalil (Palestine) / Emergency as normal governance: Egypt as a case study
15 Nora Taha (Palestine) / Emergency as normal governance: Egypt as a case study
16 Xavier Miny (Belgium) / "Ceci n'est pas un état d'urgence": Analysis of the Belgian terrorism legal framework for combating terrorism
17 Quentin Pironnet (Belgium) / "Ceci n'est pas un état d'urgence": Analysis of the Belgian terrorism legal framework for combating terrorism
18 Shigenori Matsui (Canada) Natural disaster and emergency
A state of emergency or any regime designed to deal with an emergency, such as a state of siege or other regime of exception, refers to exceptional situations which gives extraordinary powers to public authorities, authorising them to take the measures which the circumstances require in order to return to normal as soon as possible. The implementation of such regimes has been discussed regularly and has resulted in numerous doctrinal studies since the events of 11 September 2001 and the lessons it has taught different countries in the context of counter-terrorism policies which they have implemented.
However, threats of terrorism are not the only reason why a country can establish a regime of exception. Other reasons may include invasion, civil war or natural disaster such as an earthquake, an epidemic or a famine. Declaring a state of emergency then leads to concentrating almost all the powers in the hands of the executive, rendering inoperative most of the checks and mechanisms that constitute guarantees against the abuse of power. The challenge then is to strike the right balance between state security and law enforcement requirements on one hand, and the protection of rights and freedoms on the other.
The purpose of emergency regimes is to ensure that, where circumstances warrant it, all measures can be taken to restore normalcy and regular functioning of public authorities. In this context, the first question is what can effectively be characterized as urgent and what powers institutions need to deal with the situation. Although there is no single definition of emergency, international law sets out some principles and guidelines. Thus, for example, article 4 of the International Covenant on Civil and Political Rights provides that, where an exceptional danger threatens the existence of the nation and is proclaimed by an official act, a country may, to the extent strictly necessary and within certain limits, take measures derogating from obligations under the Covenant. In such cases, the State concerned will, through the Secretary-General of the United Nations, promptly report to the other States parties the provisions from which it has deviated and the reasons for which it has been obliged to do so. Similarly, fora such as the International Commission of Jurists and the International Law Association have made recommendations concerning the content of the national constitutional provisions on emergency regimes. Undoubtedly one of the most significant contributions is the "Paris Minimum Standards of Human Rights Norms in a State of Emergency" adopted by the International Law Association in 1984, which set the minimum standards for regimes of exception, in the event of an emergency threatening the existence of the nation.
State practices differ significantly. Questions remain about the competent authority to declare a state of emergency, the procedures to be followed, the circumstances justifying it, the institutions associated with the process and the type of control they may exercise, especially the adequacy and proportionality of the measures that have been implemented. In other words, the question is how to give governments the means to deal with an exceptional situation without taking the risk that leaders may abuse it for personal ends.
This workshop provides an opportunity for researchers and legal practitioners to explore the theoretical and legal outlines of the practice of exceptional regimes in light of contemporary crises and especially the threat of terrorism. Case studies, theoretical approaches and comparative studies are welcome on any subject related to this issue, such as:
• The guiding principles on states of emergency
• Limits in time, space and purpose of regimes of exception
• Rules and principles applicable in a state of emergency
• Maintaining the rule of law during a state of emergency
• Extra legal emergency powers
• Separation of powers under a regime of exception
WORKSHOP #4 Parliamentary Control of Military Engagements
Javier Garcia Roca (Spain/ Espagne) (email@example.com)
Eivind Smith (Norway/ Norvège) (firstname.lastname@example.org)
1. Christian Behrendt & Zoé Vrolix (Belgium) /
2. Francisco Manuel García Acosta (Spain) / THE PARLIAMENT’S INVOLVEMENT IN DECLARING WAR AND MAKING PEACE IN COMPARATIVE LAW
3. Jia Yin (China) / How does weapons control effectively works: relying on national parliament or external authority arrangement?
4. Jong Hoon Lim ( Korea) / Parliamentary Control of Military Engagements: Korean Case
5. Marco Podetta (Italy) / “JUST WAR”: FUSION AND CONFUSION BETWEEN LEGAL AND POLITICAL LEVELS IN RELATION TO MILITARY INTERVENTIONS
6. Mathias El Berhoumi (Belgique) / Le contrôle des operations de la Défense: des parlamentaires désarmés ou remobilisés?
7. Matteo Frau, Elisa Tira (Italy) / PESCO: the prospect of a European army and the “constitutional need” to provide for a power of control of the European Parliament on military interventions
8. Mehriban Babakhanova (Azerbaijan) / Conditions for effective parliamentary controls in the security sector
9. Sebastian Seedorf (Germany) / A detailed legal regime-but a limited scope of judicial review: parliamentary oversight of external military engagements in Germany
10. Toon Moonen (Belgium) / Who´s guarding the Brussels street guards (also when they bomb ISIS)? Democracy and the Military in times of terror
11. Xiamoei Liu (China) / Norms in war in Chinese Constitution and the mechanism for their operation
National constitutions invariably confer the supreme military command to the executive power. The question then arises to know how Parliament is brought into the decision-making procedure before military engagements start and during their duration, and how subsequent control is ensured.
The word “control” should be understood in a broad sense, encompassing upstream measures like requirements of formal parliamentary consent before starting a military intervention, control through parliament’s command of the state budget, the permanent running of ordinary oversight mechanisms like questions and hearings, and downstream measures like accountancy, evaluations and inquiries.
It is useful to distinguish between engagements at home and abroad, and between defensive and active (or even aggressive) engagements.
Military interventions within the relevant state might take place under different circumstances, stretching from natural disasters to social unrest, regions heading for independence, to civil war. Particular mention might be made of the admissibility of calling upon military forces for accomplishing tasks that normally belongs to the police.
As to military interventions abroad, the criteria for bringing parliament in seem frequently out-dated. For instance, formal “declarations of war” seem obsolete, parliamentary authorizations to use armed forces abroad are not. Could the notion of “war” be qualified as equally out-dated? At this point at least, bringing in elements of international public law might be useful or even necessary.
Across the suggested distinctions, the question about secrecy invariably appears: To what extent and under which conditions may or should parliament be brought in about matters that by necessity should be treated as secret, and which specific parliamentary procedures apply? For how many years after the end of the operations do secrecy clauses apply, and what would be acceptable?
WORKSHOP #5 Constitutional Responses to Terrorism
Kim Lane Scheppele (USA) (email@example.com)
Federico Fabbrini (Italy/ Italie) (firstname.lastname@example.org)
1 Ding Wei (China) / The Balance Between Security and Liberty: The Construction of Counterterrorism Legal System in accordance with Constitution in China
2 Zhao Xin (China) / Constitutional regulation on extraterritorial jurisdiction of terrorism crime - Based on China's perspective
3 Marek Zubik, Jan Podkowik,Robert Rybski (Poland) / Data Retention Laws under constitutional scrutiny in the European Union – towards new legal standard on combating terrorism
4 Edwin Figueroa Gutarra (Peru) / Teachers sentenced to terrorism: restrictions on the right to teach?
5 Andrea Gatti (Italy) / Securization of Religion: Rethinking Religious Freedom and Identity in Liberal Democracies
6 Akono Ongba Sedena (Cameroun) / Les libertés publiques dans un contexte de lutte contre le terrorisme: une lectura des lois antiterroristes au Cameroun et en France (in French)
7 Carolina Cerda-Guzman (France) / L’impact des objectifs de lutte contre le terrorisme sur le droit des étrangers: des outils antiterroristes au service de la maîtrise de l’immigration (in French)
8 Ige Ogunniyi Ayodeji Ebenezer (Nigeria) / An overview of constitutional response to Nigeria terrorism
More than a decade and a half after 9/11 and the rapid creation of new anti-terrorism policies, some legal tools used to fight terrorism have moved on to new uses. The workshop will focus on the use of anti-terrorism powers for purposes other than fighting the forms of terrorism that provided the rationales for anti-terrorism policies when they were first created.
Some of these new uses of anti-terrorism tools create beneficial effects: anti-terrorism powers have aided fights against organized crime, trafficking and money laundering outside the terrorism context. Other effects can be pernicious: political opposition groups and critical journalists can be harassed under broadly worded anti-terrorism laws; special police and courts set up to fight terrorism can be used for consolidating political power in the hands of autocratic governments; constitutional exceptions have become constitutional norms.
Some of the “drift” in the uses of anti-terrorism policies can be seen in the use of old laws to fight new groups. Some groups targeted by anti-terrorism laws are the logical successor groups to the groups originally targeted; laws created to fight al Qaeda are now being used to fight ISIS. But other groups targeted by anti-terrorism laws are not so directly related; laws targeting radical Islamic groups may be deployed to fight far-right nationalist groups or simply any group in political opposition.
The workshop will explore the drift in purposes and targets of anti-terrorism laws in the years since they were first enacted. Consistent with the ethos of the Research Group on "Constitutional responses to terrorism," the chairs of the workshop welcome and encourage contributions that embrace a comparative, transnational or supranational perspective on the topic of national security and constitutional law as well as contributions that interpret the theme in a variety of different ways.
WORKSHOP #6 Judicial Review during Violent Conflicts
Suzie Navot (Israel/ Israël) (email@example.com)
Javier Couso Salas (Chile/ Chili) firstname.lastname@example.org
1. Alberto Abad Suárez Ávila (Mexico) / The Interior Security Law before the Mexican Supreme Court: A test for its endurance as protector of Human Rights
2. Amnon Reichman (Israel) / Evidence and burden of proof in rights-protection cases during belligerences
3. Andrea Robles Ustariz (Colombia) / Judicial review during “No ordinary times”: How to make constitutional the transition
4. Anne-Laure Youhnovsly- Sagon (France) / What proportionality control for the use of lethal force in times of crisis? Decryption of the conventional judge’s office in the light of the right to life.
5. Claudia Ivonne Sánchez Ayala (Mexico) / THE ROLE OF THE CONSTITUTIONAL JUDGE: BALANCING POLICE
INTERVENTIONS ON THE PRE-TRIAL DETENTIONS
6. Djordje Gardasevic (Croatia) / From the Prize cases to the Mathews Approach – the Emergency Role of Courts in a Comparative Perspective
7. Gonzalo Ramírez (Colombia) / Constitutional revision of the constitutional amendments for the implementation of the Peace Agreement with the FARC-EP in Colombia (2016 -2017)
8. Karolina Naranjo Velasco (Colombia) /The Role of the Constitutional Court in Protecting the Rights of Victims in the Colombian Transitional Process
9. Mathieu Disant (France) / Contrôler l’incontrôlable. Le Conseil constitutionnel et l’article 16 de la Constitution française
Many countries suffer from violent conflicts. War and terrorism defy democracy and challenge democratic states. Clearly, traditional, time-consuming legislative steps fail when states require urgent and emergency tools. Violent conflicts and the war on terrorism might require the reaching of decisions that are inconsistent with democratic values. The end might be confused with the means. Democracies must make difficult and delicate decisions on ways to balance national security and human rights. The question of whether the rule of law and emergency powers may co-exist is problematic in nature and nations worldwide have discovered the hard way that ordinary legal instruments that suit ordinary times may be lacking in times of war or when counter-terrorist action is required.
What is the role of judges during times of war –a traditional war or a war on terrorism? A central question in times of war is whether courts may intervene in the decisions of bodies whose duty it is to actually control the conflict, or fight against terrorism. Special legal tools are employed in times of emergency that might threaten the liberties of the population they are meant to defend, violate human rights and conflict with other democratic values. It has therefore been argued that the courts should avoid intervening when decisions or laws are made to fight terror in times of emergency or during violent conflicts. Some argue that judicial review undermines security, while others claim that judicial review unjustifiably legitimizes governments’ actions in times of war.
This workshop deals with the different aspects of the topic, including the following questions (that are, of course, not exhaustive):
• Access to courts in times of crisis
• Political questions in times of war
• Justiciability and standing
• Judicial review of emergency legislation, temporary legislation and regulations
• Unconstitutional constitutional amendments during conflicts and emergency times
• Applying the principle of proportionality in times of war
• Balancing between human rights and national security
• Judicial examination of the military operations
• The question of the initiation of wars and judicial review
• War powers
• Judicial tools and remedies
WORKSHOP #7 Constitutional Rights Protection in times of Emergency
Anne-Marie Le Pourhiet (France) (email@example.com)
Jihong Mo (China/ Chine) (firstname.lastname@example.org)
1. Ademola Oluborode Jegede (South Africa) / Climate change as a global emergency - Critiquing the exception regime of constitutional rights
2. Chris Shematsi Kibancha (République démocratique du Congo) / Dialectique ordre public-libertés publiques en RDC : vers la désuétude de la liberté de manifestation, regards sur un néant jurisprudentiel
3. Kizito Kabengele (South Africa) / The constitutional court as a battlefield ? The limits of judicial function in reading the Constitution
4. Luca Buscema (Italy) / The state of emergency and the (inalienable) firmness of the values of freedom of a democratic order: the Italian approach
5. Osayd Awawda (Australia) / Protection of opposition member's rights in Palestine after the coup d'Etat in 2007
6. Sasa Zagorc (Slovénie) / Emergency measures in times of mass influx : rule of law and human rights concerns
7. Seokmin Lee/Birgit Daiber (Korea/Germany) / Danger to Democracy and Principle of Proportionality:
A Comparative Study on Political Party Dissolution Standards Applied by Constitutional Courts
8. Vu Cong Giao/Le Thuy Huong (Vietnam) / Freedom of peaceful assembly in Vietnam : constitutional rights v. political security
9. Wanki Justin Ngambu (Cameroun ) / The rule of law and Constitutional rights protection in times of emergency in Cameroon: A hollow hope
10. Yuantaon Ye (China) / A study on the protection of basic rights of Hong-Kong Residents in emergency
11. Zenjun Wang (China) / On the Constitutional Regulation on the Administrative Emergency Power
Predicting the unpredictable: such is the critical task assigned to the law of exception.
The rules of law established for peaceful times are not always adapted to times of war or crisis. Peaceful times are governed by rules of law not always suitable in crisis or war time. The proper authorities used to making the decisions can prove too far away from the ground or too slow to intervene in such a way that their powers must be transferred to other more effective authorities. The procedures and warranties usually imposed for decision-making may excessively slow down public action and should therefore be shortened or removed. Respecting the rights and liberties that are normally imposed on public authorities will sometimes constitute an obstacle to the regulation of the crisis and the restoration of public order and security. Limits will therefore be necessary by imposing constraints on citizens. Accordingly, aspects of procedural and substantive constitutional law will have to undergo the required inflections. Sometimes, statute law already has a legislative arsenal applicable to crisis situations which it will be enough to start if an emergency occurs. Sometimes, on the contrary, the legislator did not or could not have foreseen the particular adaptations to prevent the crisis. Therefore, under the supervision of a magistrate who will check the proportionality of the emergency measures, public authorities will spontaneously be able to derogate from the normal duty but at least above some lowest standards in conformity with rule of law and constitutional principles.
All legal systems throughout the world provide for the adoption of emergency measures to deal with crisis situations.
In «The Spirit of the Law», Montesquieu wrote: «the use of the freest people who have ever been on earth makes me think that there are times when we must put on a veil over freedom as we hide the statues of the gods ».
It is this serious issue that the present workshop proposes to consider by welcoming papers dealing with the protection of constitutional laws in times of crisis or emergency.
Communications may consider the problem from a general theoretical point of view or focus on comparative national cases by dealing with rights and freedoms in general or specific aspects.
WORKSHOP #8 Freedom of Speech under Stress: Speech and
Press Freedoms in times of Conflict, Violence and Rising Authoritarianism
Adrienne Stone (Australia/ Australie) (email@example.com)
Miyoko Tsujimura (Japan/ Japon) (firstname.lastname@example.org)
1. Dilara DÖNMEZKUŞ (Turkey) / Horizontal Effect of the Freedom of Expression in Turkish Constitutional Law
2. Dr. Uday Shankar (India) / Freedom of Speech in Social Media: Indian Perspective
3. Elisa Bertolini & Graziella Romeo (Italy) / Fake News, Hate Speech and Populism: the Dark Side of Democracy and Social Networks
4. Han Zhu (Hong Kong) / A Legal and Comparative Analysis of Legislative Oath-Taking Disputes in Hong Kong
5. Ilton Norberto Robl Filho (Brazil) / Academic Freedom Under Stress: Dilemmas about Freedom of Speech
6. Itsuko YAMAGUCHI (Japan) / Free Speech, National Security, and Privacy under Stress of Algorithmic Surveillance: A Comparative Study of Japan and the United States
7. Jimmy Chia-Shin Hsu (Taiwan) / HOW DOES POLITICAL POLARIZATION DISTORT THE MARKETPLACE OF IDEAS? A THEORY FROM A COMPARATIVE PERSPECTIVE
8. Junko KOTANI (Japan) / Proceed with Caution: Hate Speech Regulation in Japan
9. Jurij Toplak (Austria and Slovenia) / Limits on Freedom of Speech during Elections
10. Kelly Picard (France) / LIBERTÉ D’EXPRESSION ET JUSTICE TRANSITIONNELLE
11. Lisa Draga (South Africa) / Silencing Hate: Defining the Contours of Hate Speech in Post-apartheid South Africa
12. Muyou Wu (China) / The Problem of the Freedom of Speech and the National Security under the Pressure of Conflict
13. Pierre de Vos (South Africa) / “Fuck White People”: Hate speech and the limits of free expression in a racially divided constitutional democracy haunted by apartheid
14. Qu Xiangfei (P. R. China) / Freedom of Network Speech in the Digital Age
15. Diána Rita FARKAS, Boldizsár SZENTGÁLI-TÓTH (Hungary) / FREEDOM OF EXPRESSION AS AN INSTRUMENT OF PEACE-BUILDING
16. Uladzislau BELAVUSAU (The Netherlands) / Memory laws and freedom of speech: Governance of history in European law
17. Letshwiti B Tutwane (Botswana) / Freedom of speech and rising authoritarianism: The Paradox of Africa’s model Democracy
Freedom of speech is a central tenet of democracy and yet in times of crisis, it may be the first casualty. When fear spreads, dissent seems more dangerous and the desire for ideological unity seems more important. Governments, whether well-intentioned or self-interested, face strong pressure towards censorship. Censorship in turn undermines government accountability and impedes political change. Eventually, this dynamic can weaken constitutional institutions and the rule of law.
Threats to freedom of speech are most acute when societies are under threat of violent physical attack but in modern times threats to the state come in other forms including cyber-attack and the threats ‘from within’ posed by the rise of authoritarianism or xenophobia in democracies. At the same time, freedom of speech can be used to undermine democratic orders: spreading violent ideology, propaganda, hate-speech and fake news.
This workshop explores the multiple challenges posed to, and by, freedom of speech in times of stress arising from conflict, violence and rising authoritarianism.
Possible themes for papers include:
• freedom of speech in times of war;
• freedom of speech and anti-terrorism laws;
• freedom of speech in emergency regimes;
• freedom of speech and the threat of authoritarianism;
• freedom of speech in peace building processes;
• freedom of the media in the digital age;
• freedom of speech in a time of ‘post-fact’ politics.
However, participants are encouraged to conceive of these themes broadly and the Workshop welcomes papers all aspects of these ideas.
WORKSHOP #9 Financial Crisis and Constitutional Responses
Elena Simina Tănăsescu (Romania/ Roumanie) (email@example.com)
Tom Ginsburg (USA) (firstname.lastname@example.org)
1. Ángel Aday Jiménez Alemán & Carmen Montesinos Padilla (Spain) / The Protection of Social Rights in Spain after The Constitutionalization of The Budgetary Discipline
2. Antonia BARAGGIA / Social rights and power analysis
3. Bernardo Brasil Campinho / CONSTITUTIONAL REFORMS, PUBLIC DEFICIT AND DEMOCRATIC TENSIONS: A COMPARATIVE ANALYSIS OF EXPERIENCES OF CONSTITUTIONAL AMENDMENTS AS POLITICAL RESPONSES TO FINANCIAL CRISIS IN SPAIN (2011) AND BRAZIL (2016).
5. Eugenia Kopsidi / Dealing with the financial crisis: between rule and exception
6. Francisco Secaf Alves Silveira / THE STATE OF ECONOMIC EMERGENCY AND THE TRANSFORMATION OF THE BRAZILIAN PUBLIC FINANCE LAW: CONSTITUTIONAL AND JUDICIAL RESPONSES
7. Grzegorz KUCA / The Financial Crisis and Transformations to the Theoretical Model of Budget Procedure
8. Jerome CHARPENTIER - La limitation juridique des deficits publics en France : avancee reelle ou rationalisation en trompe l’oeil ?
9. Joel BONILLA-BLONDET / Is PROMESA Constitutional?
10. Julia BOLTEN / Socio-economic Rights in a Time of Austerity. Understanding Socio-economic Rights as an Essential Tool Towards the Building of Transnational Constitutionalism in Light of the European Financial Crisis
11. Marie-Odile PEYROUX-SISSOKO / La révision constitutionnelle de 2008 : où en est-on de l’évaluation des politiques publiques par le Parlement et la Cour des comptes, dix ans après ?
12. Miroslaw GRANAT / The principle of the balanced budget in the Polish constitutional jurisprudence
13. Sofiane BENMESSAOUD / Les solutions constitutionnelles face aux problèmes économiques et financiers - l’exemple de l’Algérie–
14. Teresa VIOLANTE / Constitutional Performance of austerity in Portugal
15. Vivien RomainMA NANGOU / CRISE FINANCIERE ET RESILIENCE CONSTITUTIONNELLE : LE CAS DES ETATS DE LA CEMAC
In the wake of the most recent financial crisis, some countries have tried to constitutionalize budgetary and fiscal discipline. Others sought to double down on social and economic protections.
This panel seeks to attract a range of papers on the relationship between financial crisis, regulation and constitutions. Issues to be addressed include the following:
• What is the impact of these constitutional provisions adopted in the wake of financial crisis, and have they worked in practice?
• What is the role of international institutions, including multilateral development banks, intergovernmental organizations and rating agencies, in constitutionalizing these issues, and in their actual performance?
• How are other aspects of the economic constitution affected by financial crisis?
• How have courts responded?
WORKSHOP #10 Children in Violent Conflict Zones
Selin Esen (Tukey/ Turquie) (email@example.com)
Rainer Arnold (Germany/ Allemagne) (firstname.lastname@example.org)
1 Manuel Strunz (Germany) / PROTECTION OF THE RIGHTS OFMINORS - The legal effects of the Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition,enforcement and cooperation in respect of parental responsibility and measures for theprotection of children -
2 Azubike C Onuora-Oguno (Nigeria) / Reexamining the Theories of the Right to Access to Education-Beyond State Obligation to promote and fulfill. A case for the Constitutional Obligation to protect
3 Nevila Saja (Germany) / Unaccompanied Children as Refugees
4 Zeynep Özkan (Turkey) / IMPACT OF THE VIOLENT CONFLICTS ON THE RIGHT TO EDUCATION OF SYRIAN CHILDREN
5 Miroslaw Granat (Poland) / The Main Problems in the Protection of Childrens Rights in Poland
6 Cesar Landa (Peru) / Special Protection of Minors in Latin America: Constitutional Challenges in the context of Armed Conflicts, Social Conflicts and Natural Disasters
7 Insoo Park (South Korea) / Child Protection System of abuse in Korea
8 Elina Almila (Finland) / The Rights of the Child and Sexual Exploitation and Abuse Committed by International Forces on Peace Operations - Work in Process
9 Ramkanta Tiwari (Nepal) / Children in violent conflicts and the constitutional agency: The case of Nepal
10 Tushar Kanti Saha (Kenya) / Right to Education of Internally Displaced Children in Camps in Kenya
11 Maria Grahn-Farley (Sweden) / The Right to be Human: freedom of speech in times of war and violence
12 Joanna Osiejewicz (Poland) / Protection of Children's Rights in Armed Operations in the Conditions of Cybernetic Conditions
13 Isaac de Paz (Mexico) / THE IMPORTANCE OF THE INTER-AMERICAN RULINGS FOR CHILDREN’S RIGHTS IN CONFLICTIVE SCENARIOS
14 Arta Vorpsi (Albania) / Children Displacement – Kosovo war case
15 Luiz Guilherme Arcaro Conci (Brasil) /
Violent conflicts have a significant negative impact on civilians. However, as a vulnerable category children suffer on a greater degree. They are subject to grave human rights violations including being killed or maimed, recruited to military forces, abducted, forced into labor, and sexual abuse. Children in conflict zones are deprived of accessing basic services and enjoying many rights, such as food, water, proper accommodation, health, and education. In situations of armed conflict the integrity of household and local community are commonly threatened, leading to the loss of familiar domestic environments.
International and domestic law provide a legal shield regarding the rights and the protection of children in cases of violent conflict. International law, in particular the UN Convention on the Rights of the Child, establishes a recognized framework for the protection of children which is complemented by three Facultative Protocols.
This Convention has been adopted by nearly all of the UN member states. In addition to international conventions a country’s constitutional law may safeguard the rights and the protection of children at the national level and be implemented by specific legislation.
This workshop intends to explore the rights and the protection of children in violent conflict zones both in international and national constitutional law. Issues to be addressed including the following:
• responses of national constitutions and legislations concerning the rights and the protection of children in conflict zones
• efficiency of international human rights documents and international cooperation in acknowledging the rights of children and adopting measures for their protection from all kind of abuses in violent conflict zones
• impact of supreme/constitutional courts on the recognition and enjoyment of the rights and the protection of children in violent conflict zones
• responses of the supra-national human rights judicial organs regarding the rights and the protection of children in violent conflict zones
• Interaction between the supreme/constitutional courts and supra-national human rights judicial organs regarding the rights and the protection of children in violent conflict zones
WORKSHOP #11 Women and Violence in Areas and/or Times of Conflict
Nadia Bernoussi (Morocco/ Maroc) (Nadia.email@example.com)
Surya Deva (India/ Inde) (firstname.lastname@example.org)
1. Dai Ruijun (China) / Taking CEDAW Convention as A Tool to Combat Violence against Women in Conflict Situations
2. Elena Yi (Ukraine) / Mass Atrocities By a Woman’s Hand
3. Janaína Lima Penalva da Silva (Brazil) / Femicide in Militariam Area in Rio de Janeiro/Brazil
4. José Miguel Cabrales Lucio and Alma Delia Gámez Huerta (Mexico) / Extreme obstetric violence in times and/or areas of armed, social and/or communitarian conflict in Mexico: Social and Constitutional analysis 21 years after the Acteal Massacre, Chiapas
5. Mehriban Babakhanova (Azerbaijan) / Sexual violence as a means of psychological warfare (Khojaly massacre case)
6. OKAFOR, Ifeoma P & AJIBOLA, Bolaji C. (Nigeria) / ROLE OF EDUCATION IN PREVENTING VIOLENCE AGAINST WOMEN AND GIRLS IN NIGERIA
7. Rafika El Khatib (Morocco) / Femmes et Violence
8. Ruchi Singh (India) / Asking the Women’s Question in the Moral Vacuums of Continuing Conflicts across Indo-Bangladesh Border
9. Valentina Rita Scotti (Turkey ) / Women as rights’ claimants after Mediterranean ‘Revolutions’. The case of Algeria
Violence and discrimination against women even in “normal” times is rife in many countries and is trivialized because of the patriarchal values imbedded in laws or local customs. However, the violence against women (including female children) takes an extreme form in areas or times of “conflict”. Women often end up becoming weapons of war and suffer in diverse ways such as rape, abduction, forced marriage, prostitution, human trafficking, sexual slavery, forced pregnancy and sterilization. The recent upsurge of populism and religious fundamentalism also tends to harm women disproportionately in all times. To make it worse, women generally remain excluded from decision-making bodies as well as processes of peacebuilding and post-conflict rehabilitation.
In the last two decades or so, a number of developments in international law have tried not only to grapple with the root causes of violence against women in conflict zones but also end the impunity of perpetuators of such violence. The international community has also made a vital link between maintaining peace and the need to involve women in the prevention, management and resolution of conflicts.
Against this background, this Workshop will explore a range of issues such as the following:
• What is ‘violence’ and what is ‘conflict’? Who defines these concepts and whether given definitions take into account women experiences?
• What is the relevance of applying a gender lens to examine diverse issues concerning violence against women in conflicts?
• In what ways are experiences of women displaced, or forced to migrate, due to conflicts different from others?
• What are the different roles that women have come to occupy in violent conflict zones (e.g., victims, warriors, collaborators, and sex slaves)?
• What strategies could be adopted to minimise the use of sexual violence against women as a weapon during conflicts?
• Is the current articulation of rights and remedies sensitive to the justice needs of women? If not, what role is there for the CEDAW jurisprudence?
• What is the responsibility of non-state actors (e.g., terrorist organisations, private security providers, and multinational corporations) for violation of women’s human rights in conflict zones?
• What gender-sensitivity should be internalised by post-conflict peacebuilding and rehabilitative measures?
• What should reparations mean for women victims of violent conflicts?
• Are existing institutional mechanisms and the procedural rules that they follow adequate to provide justice to redress abuses of women rights in situation of conflict?
WORKSHOP #12 Transnational Solidarity and Justice in Times of Crisis
Eva Brems (Belgium/ Belgique) (Eva.email@example.com)
Helle Krunke (Denmark/ Danemark) (firstname.lastname@example.org)
1. Akihiko Kimijima / Cosmopolitan Peace Principles of the Japanese Constitution: Human security-oriented transformation of the military and roles of the civilian
2. Antoni Abat i Ninet / Secessionist claims in the European Union and the founding principle of Solidarity
3. Ebrahim Afsah / Duties and Privileges of Humanitarian Organizations: Practical and Legal Limits to Transnational Solidarity in Times of Crisis
4. Maartje de Visser / THE LONG ROAD TOWARDS TRANSNATIONAL JUDICIAL SOLIDARITY IN ASIA
5. Marina Aksenova / Solidarity as a Moral and Legal Basis for Crimes Against Humanity: A Durkheimean Perspective
Workshop 12: Programme
Welcome and short introduction (Chairs: Eva Brems and Helle Krunke)
9.30-10.00: Antoni Abat i Ninet / Secessionist claims in the European Union and the founding principle of Solidarity, discussant: Erika Arban
10.00-10.30: Akihiko Kimijima / Cosmopolitan Peace Principles of the Japanese Constitution: Human security-oriented transformation of the military and roles of the civilian, discussant: Akiko Ejima
10.30-11.00: Maartje de Visser / The Long Road Towards Transnational Judicial Solidarity in Asia, discussant: Sangkyung Lee
11.30-12.00: Ebrahim Afsah / Duties and Privileges of Humanitarian Organizations: Practical and Legal Limits to Transnational Solidarity in Times of Crisis, discussant: Martin Scheinin
12.00-12.30: Marina Aksenova / Solidarity as a Moral and Legal Basis for Crimes Against Humanity: A Durkheimean Perspective, discussant: Acar Kutay
12.30-13.00: Final comments by Michel Rosenfeld and general discussion
Armed conflicts often challenge human rights and democracy in the affected areas. Vulnerable groups become even more vulnerable. Starvation, poverty, homelessness and crime can be consequences of such crisis. Support is often needed both in the crisis areas and in the countries which the refugees flee to.
All over the world we find such violent crisis and witness their impact on human rights and democracy. Furthermore, we increasingly see countries close their borders for refugees.
This situation raises several questions which might be addressed at this workshop:
• what are the legal and moral perspectives and consequences in light of transnational solidarity and justice?
• Do other countries have obligations to support the victims of armed conflicts?
• Can solidarity be thought beyond nation states?
• Can human rights and democracy be seen as part of ‘universal’ solidarity and justice?
• are there, on the other hand, limits to how far transnational solidarity can go for instance as regards intervention in countries which violate democracy and human rights?
• and, finally, shall or can solidarity be understood as the form of burden-sharing between the countries which the refugees flee to becomes an important question.
At the core of all these questions we find the concept of solidarity and its legal implications. We also find the role of states, international organisations and individuals including the rise of new active actors beyond these categories for instance internet groups in some cases across borders. This leads to the question how solidarity can be institutionalised?
The topic has global interest and an inter-disciplinary character since it can be approached from among others a legal, philosophical, political and sociological perspective. As regards the legal approach the topic is situated in the cross-field between constitutional law, international law and legal philosophy.
WORKSHOP #13 Human Dignity and the Right to Asylum from Persecution
Marcelo Figueiredo (Brazil/ Brésil) (email@example.com)
Simon Young (Hong Kong, China/ Chine) (firstname.lastname@example.org)
1. Pui Yin LO (Hong Kong ) / Hong Kong’s Non-refoulement Protection Screening: Complementary protection reflecting immigration control and the dignity of the resident population
2. Yi-Li LEE (Taiwan ) / South Korea’s Refugee Engagement: A Contextual Analysis of Global Norm and its Local Practice
3. Robert Hlathi Freeman (South Africa) / Plugging the Protection Dyke: Asylum, Disaster Displacement and the Limitation of Rights
4. Fransiska Ayulistya Susanto (Indonesia) / Indonesia Presidential Regulation regarding Refugee Management, it is enough to give protection to Refugee in Indonesia?
5. Vivian Cheung (Hong Kong ) / Hong Kong: Children’s Right to Asylum
6. Sharon Cheung and Peter H Chang (Hong Kong ) / Non-refoulement on the Basis of Inaccessibility to Medical Treatment in a Receiving State
7. Atushi Kondo (Japan) / Human Dignity and the Right of Access to the Courts for Asylum Seekers in Japan
8.Jose M Martinez Sierra & Keina Espiñeira & Juan Manuel Mecinas Montiel (U.S.A) / Right to asylum in limbo? The role of the Court of Justice of the European Union in the case of the Greek-Turkish border
9. Kay McArdle (Hong Kong) / Hong Kong: Children’s Right to Asylum
10. Valentina Carlino (Italy) / Una politique commune? Critiques et perspectives futures du système européen d’asile
11. Shreeya Smith (Australia) / Freedom from Arbitrary Detention: Immigration Detention and the Australian Constitution
12. Pablo Barragán (Mexico) /The Right of Asylum
13. Giammaria Milani (Italy ) / The Detention of Asylum Seekers, Between Fundamental Rights and National Security
14. Moinuddin Ahmed (Korea ) / Asylum Seekers in Europe: Protecting Human Rights
15. Mehrnoosh Farzamfar (Finland ) / Diplomatic Assurances in Cases of Expulsion to Torture: A Critical Analysis
16. Luigi Mariano Guzzo (Italy ) / The protection of religious freedom in the refugees’ shelters in Italy
The internationalization process of the constitutional law became an indisputable fact along the last decades. On the other hand, in the globalization era, the law and the reality of the international community play a role in all aspects of the national state power.
In the 21st Century globalized world not only the States but also the individuals and the social groups are inserted in a complex network of multinational relationships.
Nowadays the community of States must be willing to assume the protection of rights and liberties although the National States resist in assuming the full defense of the human rights in a more generous sense and as ample as possible.
The State, as we know, can and must be a way to accomplish liberty not only for its citizens but also for all human beings, with no discrimination or unjustified intolerances.
Today it is possible to realize the close relationship of constitutional problems amongst international, supranational, transnational, international and local orders.
Therefore, in a complex world, there is a multilevel legal system, in which a multidimensional trans-constitutionalism takes place, resulting from the relevance of the knowledge of all juridical-constitutional problems for a diversity of juridical orders.
The main objective of this panel is to examine, discuss and gather the main views and collaborations of the scholars on the matter involving the legal relations between refugees, international law and their protection and regulation by the sovereign National States.
As we all know, the refugee's legal regime and the concept of asylum, in a great extent, constitute along the history measures of protection to people living in a situation of vulnerability.
Moreover, the traditional prerogative of the States of controlling the entry and permanence of foreigners does not always offer an answer to the constant challenges resulting from massive migrations and the displacement of refugees coming from several parts of the world for a number of reasons.
This picture leads to disputes and claims that would usually be solved in the perspective of the traditional constitutional law and in the human rights and humanitarian regime.
In practical terms, supranational and international organisms have had an important role in providing solutions and in trying to prevent an escalation of conflicts in this matter. Different views and values must be accommodated in this topic. The tensions between the values which separate the national identities must be taken into account.
In what way can we contribute so that all the players involved in this process, States, international organizations, legislators, public authorities, take into account all the sensitive cultural, social and political peculiarities offered by this subject?
Is there a way of mitigating the adverse conditions which lead millions of people to become global migrants? Can we conceive more creative mechanisms to compensate and help the States receive refugees with severe social and economic problems?
Which are the main difficulties in applying the international and supranational norms and those involving all the players who interact in this context and in this issue? Are the governmental authorities and the border police connected to the international humanitarian law and the right of refugees, even when they act beyond their national boundaries?
In what extent the judicialization of these conflicts has contributed to solve them?
The organizers of the present panel invite all those interested in submitting their works related to such topics involving especially:
• the right to asylum, its essence and its exceptions;
• the possible and the not always possible “dialogue” between the constitutional law and the international law as regards asylum;
• the right of asylum and its applicants – administrative and judicial problems involving the matter;
• the enhancement of the international regulation and the right to asylum - failures, virtues and perspectives.
WORKSHOP #14 Constitutional Amendments under Crisis
George Katrougalos (Greece) (email@example.com)
Anne Levade (France) ( firstname.lastname@example.org)
1 ZHAI Han (The Netherlands, China) / Revisit Spain and its 1978 Constitution in external and internal constitutional disharmonies: Constitutional amending for economic crisis, institutional deficiency and regional separationism
2 Silvia Suteu (U.K./Romania) / Rethinking Unamendability: Eternity Clauses in Postconflict Constitutions
3 Jungen Goossens (Belgium) / Popular constitution making towards amendment of traditional constitutional amendment provisions
4 Johanna Hasse (Germany) / Amending Constitutional Identity in Critical Times
5 Roberto Viciano Pastor & Diego GonzalesCadenas (Spain) / Democratic legitimacy crisis and re-opening of a constituent process within the European Union
6 Rivka Weill (Israel) / Secession and the Prevalence of Both Militant Constitutionalism and Eternity Clauses Worldwide
7 Jairo Lima & Rubens Beçak (Brazil) /When 5x4 is not a winning majority: judicial decision-making on unconstitutional constitutional amendments
9 Neliana Rodean (Italy) / The People’s Will within the paradox of the Unconstitutional amendment processes
10 Oliver Garner (U. K.) / Brexit and Constitutional Amendment: The Future of Europe and the United Kingdom
11 Alexander Fischer (India) & David KuanChuan Huang (Taiwan) / Last VetoPlayer Standing? Crisis Constituent Power and Judicial Resistance in India and Taiwan
12 Yaniv Ronzai/Richard Albert (Israel) / Emergency unamendability
13 Edward Oyelowo Oyewo (Nigeria) / The Challenges of Constitutional Reforms in democratizing states in Subsaharan Africa: Is it mission impossible for Nigeria?
14 Alfonso Palacios Torres (Colombia) / Peace building process thru constitutional amendment: The challenges shown by realty in Colombia
15 Fabio Estrada Valencia (Colombia) /The Constitutional Amendment that facilitates the implementation of the Peace Agreement in Colombia
16 Imam Hossain (Bangladeshi) / Manipulation of the Constitution through amendments
17 Rafael Macía Briedis (Spain) / The Heteronomous Sovereign: Redefining “the People” Through Popular Constitution-Making in Venezuela
18 Oesten Baller (Germany) / Constitutional development and constitutional interpretation in Ukraine adn Russia in the light of the Russian-Ukrainian conflict
19 Paul Zibi (Cameroun) / Les changements infra-constitutionnels en période de crise : Cas de la résolution de la « crise anglophone » au Cameroun
20 Mortimer Sellers (U.S.A.) / Formal and Informal Constitutional Amendment
21 Sasha Sydoryk (France) / LES LIMITES DIRECTES AUX RÉVISIONS CONSTITUTIONNELLES EN PÉRIODE DE CRISE : PANORAMA
EUROPÉEN ET MODÉLISATION
22. Khrystyna Prykhodko (Ukraine) / CONSTITUTIONAL DEVELOPMENT OF UKRAINE: REALIAS AND PERSPECTIVES
23. Malkhaz Nakashidze (Georgia) / Constitutional Amendments under Crisis in Georgia
Moments of national crisis are often an important impetus for processes of constitutional change. Certain kinds of crisis can, in this sense, also be democracy-generative: they can provide the impetus for important reforms to existing political and economic systems in ways that advance substantive commitments to peace, justice and democracy. Yet change, under conditions of crisis, can also involve distinct dangers: it can reduce opportunities for debate and deliberation. It can silence or chill political opposition. And it can increase public support for changes to the power of current government actors that may advance democratic stability in the short-term, but at the expense of long-term democratic commitments and principles.
This workshop will examine this complex relationship between processes of constitutional amendment, and conditions of crisis, from a number of different directions.
First, it will explore the different ways in ‘amendment’ can occur in different systems, including via different formal procedures and processes, and formal and informal mechanisms. Second, it will consider the relationship between amendment processes and various kinds of crisis, and the normative and empirical dimensions of this relationship. Third, it will explore the way in which constitutional designers and judges have developed techniques to cabin the scope for constitutional amendment under conditions of crisis – including via eternity clauses, differential procedures for amendment, and the ‘unconstitutional constitutional amendment’ doctrine. Fourth, and finally, it will consider the degree to which processes of constitutional borrowing, comparison and engagement have informed these different constitutional responses, and their implementation in different national contexts.
WORKSHOP #15 Illiberal Democracies
Bertrand Mathieu (France) (email@example.com)
Ricardo Ramirez Calvo (Argentina/ Argentine)(firstname.lastname@example.org)
1.Antoni Abat i Ninet / Liberal and illiberal democracies and the role of the people in theConstituent Moments in that differentiation.
2.Shams Al Din Al Hajjaji / Government by Judiciary in Islam: Islamic Theory and Mal/Practice of Muslim Governments (Turkey, Saudi Arabia, Egypt and Morocco)
3. Sanaa Alsarguali / The semi-presidentail system in Palestine, always a zero sum game?
4. Cedric Bernard / Sanctionner les démocraties non libérales : Le rôle du constitutionnalisme global et du droit international
5. Francesco Biagi /Constitutional Courts in the MENA Region Following the Arab Uprisings: The Start of a New Deal?
6. José Ramón Bohon Sosa / Democracy and liberalism: perils of an indissociable combination
7. Tom Gerald Daly /Illiberal Democracy: Pinning Down a Problematic Term
8. Gianmario Demuro (Italy) /European Governance as a constitutional value against illiberal democracy
9. Ramratan V. Dhumal / A WEAK FOUNDATION OR A BUILDING WITH CRACKS: REVISITING INDIAN CONSTITUTIONALISM
10. Timea Drinoczi /Constitutions and constitutionalisme captured: shaping illiberal democracies in Hungary and Poland
11. Cristina Gazzetta (Italy) / Entre démocratie et libéralisme. La naissance de nouveaux ordres juridiques en Afrique du Nord après les Printemps arabes
12. Giorgio Grasso (Italy) / Démocratie (libérale) contre démocratie non libérale: le cas des partis politiques européens et du respect des valeurs sur lesquelles se fonde l’Union Européenne
13. Aeyal Gross / Illiberal democracy and constitutional populism The view from Israel
14. Alex Koutsogiannis / Authoritarian trends in liberal democracies: lapses or necessary evils?
15. Zdenek Kühn /The Rise and Fall of Eastern European Constitutional Courts
16. Acar Kutay / Liberal Constitutionalism, Arab Spring, and Realism
17. Tanasije Marinkovic / ENEMIES OF INSTITUTIONS – REVIVAL OF POPULISM IN THE WESTERN BALKANS
18. Tatiana Maslovskaya (Belarus) / Démocratie et libéralisme, théorie et pratique, dans les pays de la CEI
19. Eugénie Merieau / Vers une théorie du dualisme constitutionnel : la zone grise de la démocratie illibérale, Réflexion à partir de la Thaïlande et de la Turquie
20. Franz Merli /Illiberal Direct Democracy
21. Giammaria Milani / The representative institutions in the illiberal democracies
22. Abiodun Odusote /Africa: A Continent on the Edge, From Skewed Elections to Illiberal Democracies
23. RACHEDI Guermia Maître (Algeria) / Démocratie autoritaire pour une transition démocratique libérale en Algérie
24. NamePablo Riberi / Republican reluctance toward illiberal, non liberal and liberal democraties
25. Ilan Saban / Israel: The Political Counter-Reaction to its Constitutional Revolution
26. Saniia Toktogazieva /Democratic backsliding and its effect on international institutions: the case of the Kyrgyz Republic.
27.Julius Yam / THE LEGITIMACY PARADOX OF COURTS IN HYBRID REGIME HONG KONG
28. Hajime Yamamoto /An authoritarization of Japanese constitutionalism?
Representative democracy has constituted for a long time a model. From this paramount, it became a system which essentially brought social cohesion, peace and the development of human rights.
Based at the same time in a specific concept of the functioning of political institutions and a system of values embodied in human rights, it has been presented as a universal model. From this point of view democracy has been largely identified with the notion of "good government" and with the concept of the rule of law.
This concept of rule of law aims to bring into existence a political system which rests on three principles: a legitimizing principle which is democracy strictly speaking, a form of government which is liberalism, and a value system embodied essentially by fundamental rights.
Although these conditions usually converge, contradictions may arise, for example, when the power to control (specifically, the courts) prevails over the power to decide (the political power). Also, protection of fundamental rights can conflict with popular will. These contradictions partially show the crisis faced by the system of liberal democracy.
Authoritarian regimes, in order to weaken the strength of opposing forces and the absolute superiority of individual rights, but using the argument of democratic legitimization, exist in numerous regions of the world and develop even in countries with established liberal democracies.
The question is whether this constitutional dressing is only the mask and the instrument of legitimization of an authoritarian power and if it can establish a new constitutional current. In any event, this phenomenon has a deep impact in contemporary constitutional systems.
The object of this workshop is to analyze the reasons, the conditions and the effects of a possible dissociation between democracy and liberalism, to examine the possibility or the reality of illiberal national constitutional systems and thus research their influence on the development of constitutional law.
Independently of the future of such a concept and its possible realization, the claim by certain governments of a counter model of democracy may lead to a revision of what constitutes the core of the democratic principle.
WORKSHOP #16 Conscientious objection, religion and the constitution
Susanna Mancini (Italy/ Italie) (Susanna.email@example.com)
Michel Rosenfeld (USA) (firstname.lastname@example.org)
1. Consorti Pierluigi (Italy) / “You must prove that your conscience is genuine!” How much may the judge investigate personal conscience?
2. Darshan Datar (India) / DANCING TO A DISCORDANT SYSTEM: DIFFERENTIATING RELIGIOUS FREEDOM AND NON-DISCRIMINATION IN INDIA AND THE U.K.
3. Hiroshi Nishihara (Japan) / Exemption from general legal rules on the ground of freedom of conscience as contemporary issue of fundamental rights
4. Hostovsky Brandes Tamar (Israel) / The Right to Religious Exemptions: Conscientious Objection, Religious Accommodations and Social Solidarity
5. Kang, Hyun Ho (Korea) / Conscientious objection to the military service according to the Korean Constitution
6. Kapai Puja (Hong Kong) / Intersectionality and the Clash Between Comprehensive Doctrines: Negotiating Spaces for Autonomy, Empowerment and Justice for Complex Identities in the Courtroom
7. Kyung Seon Kang (Korea) / The Constitutional Study to Embrace Alternative Service Systems(Conscientious Objection) for the Realization of a Peaceful Country
8. Lo Giacco Maria Luisa (Italy) / Is it Possible the Conscientious Objection of Adoption Agencies? Religious Freedom, Antidiscrimination Principle and Best Interest of the Child
9. Smet Stijn (Belgium) / Conscientious Objection or Unconscionable Refusal? A Comparative Analysis through the Contrasting Lenses of Tolerance and Respect
10. Stopler Gila (Israel) / Gender segregation in public places: religious accomodation or sex discrimination?
11. Tan Eugene K B (Singapore) / The Lack of Constitutional Regard or the Valorization of the State Imperatives in a Garrison State?
The question to what extent attitudes or obligations based on religious beliefs should be accommodated in liberal, secular democratic societies that are increasingly multicultural and multi-religious, has become a paramount one. Traditionally, the practice of conscientious objection arose in the context of individuals refusing to bear arms in a military conflict or to serve in the armed forces, and was rooted in the right to freedom of thought, conscience and religion. Under the current predicament, however, the claimed space for religious exceptions has become much wider and diverse, as the right to religious objection is most frequently invoked in conflicts implicating abortion, assisted reproduction techniques, contraception, LGBT equality, and same-sex marriage. Moreover, in contrast to traditional invocations of conscientious objection aimed at protecting minority views (such as pacifism) and minority religious practices, today religious exemptions are often invoked in the name of traditional religious views in order to thwart the implementation of laws intended to advance the equality of marginalized groups and of minorities, (e.g., refusals to serve others on the ground of their sexual orientation). Current day litigation on both sides of the Atlantic is often coordinated by the same conservative lobbies and NGOs, most of which originate in the US and expand their reach to Europe, motivated in part by the aim of minimizing opportunities for US courts to rely on progressive European jurisprudence for purposes of rejecting religious conscience challenges to antidiscrimination laws.
This workshop is designed to explore the new challenges of conscientious objection from a comparative and transnational perspective. Questions to be addressed include the following:
• Liberal philosophers, such as Dworkin, Rawls and Raz, have stressed the importance of conscience objection to the point of defending a right to civil disobedience under certain circumstances, in cases in which law impinges on fundamental freedoms. But in a pluralistic polity, where individuals and groups hold irreconcilable convictions, what are the criteria to determine what exemptions from generally applicable law—if any-- should be granted on the basis of a genuine assertion of conscientious objection?
• Is a ‘general right to conscientious objection’, which would exempt religious individuals and/or corporate entities under the latter’s control from antidiscrimination and other laws interfering with manifestations of their beliefs, consistent with a secular, pluralistic democracy?
• Does the focus on rights obscure other more desirable pathways to accommodation and resolution of conflicts between the conscientious objector and those adversely affected by the latter’s action?
• What is the role of courts in adjudicating religious exemption claims by religious majorities and minorities?
• Should claims of religious majorities be treated differently than those of religious minorities and left to the ordinary democratic process?
• Is there a difference if such claims are expressed in the language of constitutional law rather than in that of human rights law?
• To what extent are claims of religious exceptions constitutive of political identities?
WORKSHOP #17 Economic Crisis and Migration Crisis:
Challenges for the “Social State”
Julia Iliopoulos-Strangas (Greece/ Grèce) (email@example.com)
Axel Kaemmerer (Germany/ Allemagne) (firstname.lastname@example.org)
1. Arguilar Camargo, Daniela & Hermany, Ricardo (Brazil) / THE HUMANITARIAN CRISIS IN VENEZUELA AND THE MIGRATORY FLOW TO BRAZIL: THE PRINCIPLE OF SUBSIDIARITY AND COOPERATION AS AID TO THE BRAZILIAN FRONTIER MUNICIPALITIES
2. Bolzan, José & Labanca, Marcelo (Brazil) / The new immigration law in Brazil and the hospitality between friends and enemies
3. Canotilho, Mariana (Portugal) / Relocation of Refugees as a Practical Test to Social Rights Protection: The Portuguese Experience
4. Frasheri, Ermal (Albania) / When Different Faces of Migration Collide: Global Migration and Law
5. Fuo, Oliver (South Africa) / The Right of Foreigners to Access Hounsing and Basic Municipal Services in South Africa
6. Kim, Chihwan (Korea) / Legislative Improvement for immigrant workers in Korea
7. Pereira, Anna Lucia Pretto & Drehmer, Anna Paula (Brazil) / POLITICAL RIGHTS AND MIGRATION POLICIES: “Right to vote, and right to be voted”
8. José Ma. Serna de la Garza (Mexico) / The protection of migrant workers’ rights in North America
9. Zamboni, Mauro (Sweden) / Economic Crisis and Migration Crisis: Challenges for the “Social State”
The last years saw a substantial increase in the number of persons forced to leave their country as a consequence of wars, civil or others, or in order to escape extreme poverty. In principle, who seeks to settle on alien ground can, according to the underlying motive, either be classified as a refugee, or asylum-seeker, or as an “ordinary migrant”. Lines that clearly delimit these categories are absent; yet, they are subject to fairly distinct legal regimes, bridged only by EU law, having introduced an intermediate status of “subsidiary protection”. The present workshop shall not focus on the classifications as such and their legal foundations but on legal questions that migration raises with regard to national law, and on how it affects social security and welfare and their constitutional basis.
For to the extent that migration transforms a nation and society, it also poses a challenge for the corresponding State. The capacity of such a State, sometimes declared a “Social State” by virtue of the Constitution, to satisfy the manifold social tasks and duties imposed upon it by the legal order, is limited and might, just as social peace, be questioned by mass migration. Whereas the constitutional and political order of some States appears to be downright founded on or to at least encourage migration, others appear as indifferent or even hostile towards it. The workshop aims to compare the different constitutional approaches as well as to highlight the systemic differences between migration that is planned and organized, migration occurring within common markets such as the European, and ultimately the rather unwelcome and spontaneous migration of refugees or persons with a similar status. Each of them triggers specific problems related to law, society and welfare, to be discussed in the workshop, with corresponding approaches to, and perspectives for, solution and harmonization of respective legal conflicts.
WORKSHOP #18 New Democracies and Challenges to the Judicial Branch
Julia Motoc (Romania/ Roumanie) (email@example.com)
Marek Zubik (Poland/ Pologne) (firstname.lastname@example.org)
1. Ahmed Ajaoun (Morocco) / The Judiciary in the Moroccan Constitution of 2011
2. Amel Arfaoui (Tunisia) / L'Indépendance de la justice: L'expérience tunisienne. Post- révolution
3. Angel Rodriguez and Pablo Sanchez-Molina (Spain) / The Limits of Fragmentation of Fundamental Rights in an Integrated Europe Within The Context of Globalization: Subjects, Legal Orders, Competencies, Standards and Territories
4. Aurela Anastasi (Albania) / The Reforming of Justice System and the Impact of International Factor
5. Caroline Expert-Foulquier (France) / Internationally Guarantee the Constitutional Bases of the Separation of Powers and the Independence of the Judiciary
6. Chien-Chih Lin (Taiwan) / Civil Constitutionalism (and the lack thereof) in Taiwan
7. Dragoljub Popović (Serbia) / Reasoning in Domestic Judgments – A Challenge to the Judiciary in New Democracies (A View from Strasbourg)
8. Emilio Peluso Neder MeyerBrazil (Brazil) / Legality and legitimacy in authoritarian and democratic regimes in Latin America: the role of the judicial branch
9. Guoqiang Zhai (China) / The Constitutional Review in Contemporary China
10. Marko Stankovic (Serbia) / Judiciary in THE serbian constitution of 2006 and a critical review OF DRAFT AMENDMENTS
11. Moustafa Ahmad (Egypt) / The Public Opinion Pressure as an Obstacle Against Justice – Egyptian Case
12. Petar Bacic (Croatia) / The Republic of Croatia in Transition to Democracy and the Position of Judiciary
13. Piotr Mikuli (Poland) / In Search of the Optimal Court Administration Model for New Democracies
14. Po Jen Yap (Hong Kong) / The Judicial Branch and Unconstitutional Constitutional Amendments in New Democracies in Asia
15. Rivka Weill (Israel) / Bills of Rights with Strings Attached: Protecting the Past from Judicial Review
16. Roxan Venter (South Africa ) / The courts as the gate-keepers of struggling democracies: a South African perspective
17. Tomasz Tadeusz Koncewicz (U.S.A. / Poland) / „The symbolic jurisprudence”. Theorizing constitutional (re)capture, testing the limits of separation of pow-ers and reimagining the judicial review
18. Vu Cong Giao and Nguyen Thuy Duong (Vietnam) / Court System in Human Rights Protection in Vietnam: Situation and Perspective
19. Woo-Young Rhee (Korea) / New Challenges for the South Korean Judiciary from the Participatory Democracy in Judicial Appointment and the Criminal Jury Trial
20. Xiong Qiuhong (China) / The changes in the functioning of courts in China
21. Yukyong Choe (Korea) / Judicial Politics in Korea Balancing Judicial Independence and Judicial Accountability in the Fourth Legal Reform Waves
The last decade of 20th and the first decade of 21st century brought substantial changes in political and legal systems of many countries. A number of countries underwent a political transformation from totalitarianism into democracy. It was related as well to the necessity of restoring the proper functioning of courts and ensuring the effective protection of rights and freedoms of individuals. Judiciary was perceived as in need of earning a proper authority in the society, proper place in the system of separation of powers and in the system of the rule of law. It became a common belief that it is necessary to ensure the independence of judiciary from other public authorities as well as to guarantee proper appropriate judicial procedures and efficiency in the realisation of justice administration. Nonetheless, there exists a tendency of questioning of these democratic regime fundaments, even in the countries of undoubted democratic traditions. This workshop will examine this complex of problems.
This panel seeks to attract a range of papers on the contemporary problems of the judiciary in the countries after the transition period towards democracy and how to preserve independence of courts and judges. Issues to be addressed include the following:
• is it possible for the international community to determine a minimal, permanent and commonly acclaimed level of independence of the courts and independence of the judges;
• how should persons who participated in the judiciary during the totalitarianism settle with this totalitarian period. Is it a necessary condition for the society to restore its public trust in the democratic state;
• does a country which underwent a political transformation into democracy need special mechanisms to ensure the independence of judges;
• if in fact there exists a tension between the public expectations and the possibilities of their realisation by the judiciary. If yes, then are all public expectations rationally justified in the democratic state;
• how is it possible to ensure a proper authority of judiciary in a democratic state after its transformation period;
• how is it possible to ensure the proper independence of judiciary regarding appointing of judges, the ensuring of their independence, financial regime of judiciary and ensuring of the appropriate governing of court’s administration
• does the democratic state of law – besides postulates regarding the founding of proper legal culture – have any mechanisms to offer, which will prevent the retreat from the processes of democratic regime and proper ensuring of judicial independence and of the independence of judges in the system founded on the division of powers
WORKSHOP #19 Violent Conflicts, Peacebuilding and Constitutional Law
Ibrahim Kaboglu (Turkey/ Turquie) (email@example.com)
Xavier Philippe (France) (firstname.lastname@example.org)
1. Abiodun ODUSOTE (Nigeria) / Perennial Conflicts between Farmers, Herdsmen and Communities in West Africa: Perspectives on Clashes of Rights to Livelihoods
2. Amanda CATS-BARIL (U.S.A.) / Constitutions for Peace: Lessons from Nepal on Multi-Stage Peace and Constitution Building Processes
3. Anat SCOLNICOV (U.K.) / Human Rights, Peacebuilding and Reconciliation
4. Benjamin LAWRENCE (U.K ./ Cambodia) / Drafting in the Shadows: the UN Transitional Authority in Cambodia and the Legacies of a Rushed and Secretive Constitution Making-Process
5. Elina SHYSHKINA (Ukraine) / La réconciliation post-conflit en Ukraine: les défis pour l`ordre constitutionnel
6. Jean Pierre MASSIAS (France) / La structure constitutionnelle de la transition politique
7. Jenna SAPIANO (U.K.) / Silences in Constitutions and Space for Self-Determination
8. Jorge Ernesto ROA ROA (Colombia) / Judicial review of the peace agreements in Colombia: strong constitutionalism beforethe rejection of the people or weak constitutionalism with the support of the people
9. Kuk-Woon LEE (Korea) / The Political Meaning of Article 3 of South Korean Constitution
10. Luis-Miguel GUTTIERREZ (Colombia / France) / La révision de la Constitution à la sortie d’un conflit violent
11. Manon BONNET (France)/ Peace through democracy? The use of Constitutions in post-conflict settings
12. Marcelo LOZADA GOMEZ (Colombia) / Transitional constitutionalism: a framework for the linkage between peace building and the existing constitutional regime. Conclusions from the Colombian experience
13. Nico STEYTLER (South Africa) / Transitioning to democracy and constitutionalism: the South African case study of gradualism
14. Nikos SKOUTARIS (U.K.) / Mapping Out the Notion of Shared Sovereignty in Post-Conflict Constitutional Arrangements
15. Omar HAMMADY (Mauritania) / Constitution-making whilst conflicts are still under way: Lessons from the Libyan, Yemeni and Syrian cases
16. Philippe PEJO (France) / La construction de la paix par la diplomatie parlementaire
17. Pierluigi CONSORTI (Italy) / Italy repudiates the war
18. YUE Zhu (China) / War Powers: A Comparative Study of War Powers Clauses in 190 Constitutions
The end of violent conflicts creates hope for peace and democratic rebuilding of the state during the transition phase, imposing a complete rethinking of the existing legal framework when the old one has become out-dated or inapplicable. Each phase – being the peace agreement or the political dialogue – that follows the end of a conflict, creates discussions and negotiations around constitutional issues. However, if the constitutional rebuilding – amendment of the existing constitution or drafting of a new one – is unavoidable, it is barely connected with the two other mentioned phases of “peace” and “political dialogue”. When one looks at the issues that were negotiated, they are often linked to the sharing of power, the guarantee of fundamental rights and freedoms and the creation or the restoration of review mechanisms. All these questions have a constitutional dimension but very few constitutional lawyers or makers are involved in these early stages.
How one can explain this -sometimes strong- division between peace building, political dialogue and constitutional reconstruction? Is constitutional law simply limited to record and rephrase the will of peace or political negotiators concluded during these phases? On the contrary, is constitutional law able to play a more dynamic role, by offering rationalised solutions to negotiators aiming at keeping the coherence of legal and political systems?
This workshop will offer an opportunity to examine and open the debate around these questions. Three main themes will structure it.
A first theme will be based on the interaction between the different phases of peace building after a violent conflict, leading to State rebuilding through the rule of law and the enshrinement of a constitutional State. How to integrate the constitutional dimension from the starting point of the peace negotiations regardless of their focus on peace settlement or political negotiation? Is it advisable to promote the establishment of identified constitutional principles from the beginning? Or would it be preferable to let the political negotiation running without associating constitutional technical issues? How and to what extent is it necessary to distinguish between the peace process and the political dialogue? Should the constitutional dimension only emerge once the political dialogue has reached a certain level of peacefulness? Or, is a gradual integration of constitutional issues a better option making a distinction between the different phases -interim and final- of this renewal process?
A second theme will focus on the importance of the constitutional process during the phase of political transition. The amendment or the change of the constitution often focuses on questions related to the substance of the future constitutional text. Nevertheless, beyond the importance of the future constitution, the drafting process is a key moment. Firstly, the constitutional drafting process happens in different contexts playing a key role for the elaboration of the content of the text. If the conflict is not on going anymore, conflicting interests may divide the drafting process. To what extent this context can influence the process and the content of the future constitutional text? Constitutional drafting processes are of different nature: some are made with a constitutional commission of experts, some others are open through the election of a constitutional assembly, and some mix these two processes in an alternative or comprehensive manner. What type of influence the choice of one specific process rather than another will have on the final result? Could this context become a source of deadlock? How to overcome the situation when such a deadlock appears? What are the key elements that would allow for the restart of the process? All these aspects could be studied here and allow for an evaluation of the solutions that were chosen, regardless of their successes or failures. This will also offer an opportunity to measure the impact of these various elements on the final result.
A third theme will be dedicated to the elaboration of the content of the constitution during the drafting process. Drafted for ruling the future of a democratic society in a period of transition, a new constitution should also include the correction of the deficiencies and mistakes from the past, as well as the necessity to reach a compromise when the consensus is impossible. How these various – and sometimes contradictory - expectations can be taken into consideration for the final text of the constitution? How the political agreements reached before the starting of the constitutional process can be enshrined into the constitution, without betraying the intents of the peace building agreement negotiators? This third theme will offer a basis for thinking or rethinking the whole approach of the peace process. Whatever are the adopted solutions regarding the State structure, the devolution of powers, the protection of fundamental rights and freedoms, every constitutional transition is unique and must include the contextual framework. This theme will also offer an opportunity to think and debate about the transitional and final constitutional provisions. Should all the provisions of a constitution be adopted forever or are there provisions that should be implemented for a limited period of time? Quite often left aside, these issues (such as transitional provisions) are key for the success or the failure of the process. Questions related to dealing with the past, such as transitional justice measures or the creation of new structures related to the guarantee of non-repetition of former violations are quite often at stake: they are part of the constitutional debate. This third theme could then offer an opportunity to brainstorm and exchange on this dynamic of constitutional drafting. It could also address challenges and hopes generated by the implementation of the constitutional text after its adoption and promulgation.
WORKSHOP #20 The Influence of Foreign and International Legal Sources
on Post-Conflict and in-Conflict Constitutional Law
Tania Groppi (Italy /Italie) email@example.com
Gianluca Gentili (Italy /Italie) firstname.lastname@example.org
1. Akiko Ejima (Japan) / How far does the interaction between the importer and exporter of the constitutional ideas contribute in post-war Japanese reconstruction and peace-building?
2. Baone Twala (South Africa) / Conflict and Courage: A Comparative Analysis of the Kenyan and South African conflicts and Constitution
3. Christa Rautenbach (South Africa) / The Influence of Foreign and International Legal Sources on Post-Conflict Constitutional Law in South Africa
4. Cristina Fasone (Italy) / The Good Friday Agreement and Constitutional Law in Ireland: Which Influence of Foreign and International Law on the Peace Process and on Its Implementation?
5. Domenico Amirante & Pasquale Viola (Italy) / The Indian Constitutional Prototype and its Recent Borrowings in the Post-Conflict Constitution of Nepal, 2015
6. Elena Bindi - Andrea Pisaneschi (Italy) / A comparative analysis of the role played by external influences in the Italian constitution-making
7. Fabian Duessel (Korea) / Post-, in- and pre-conflict: The influence of foreign legal thought on South Korea’s 1948 Constitution
8. Hannah Birkenkötter (Germany) / Strengthening the rule of law as a core task of contemporary UN peacekeeping
9. Héctor David Rojas & Lina Escobar (Colombia) / Public Justification, transitional justice and the role of foreign precedent in constitutional matters
10. Irene Spigno (Italy) / The Influence of Foreign and International Legal Sources on post-independence Namibia
11. Isaac de Paz González (Mexico) / THE RELATION BETWEEN THE INTER-AMERICAN COURT AND IN-CONFLICT MEMBER STATES
12. Juan Sebastián Villamil Rodriguez (Colombia) / Transitional Justice in the Post-National Constellation
13. Magdalena Correa Henao (Colombia) / Legal fetishism and the influence of foreign and international legal sources on the in-Conflict Constitutional Law in Colombia
14. Manuelita Hermes Rosa Oliveira Filha (Brazil) / The End of the Dictatorship and the Use of ECHR Precedents by the Brazilian Federal Constitutional Court: The Role of the Venice Commission of Democracy Through Law
15. Maria Ángeles Ahumada Ruiz & Susana Sánchez Ferro (Spain) / The importance of external influences on the Spanish Transition to Democracy and in the subsequent development of constitutional practice
16. Sinthiou Buszewski & Stefan Martini (Germany) / Basic Rights and the European Convention on Human Rights in Post-War Germany
17. Teresa Violante (Portugal) /Foreign and International Legal Sources in the Opinions of the Portuguese Constitutional Commission (1976-1982)
18. Theo Fournier (France) / The Influence of the United Nations' Resolutions on the Post-Apartheid Democratic Transition
19. Valentina Rita Scotti (Turkey) / Foreign and International Sources of Law in Turkish Post-Conflict Constitution-Making
20. Wen Chen Chang;Yi-Li Lee (Taiwan) / The Use/Non-use of International Laws on Delayed Justice in Post-Conflict Settings:
A Contextual Analysis to South Korea and Taiwan
21. Zoltan Szente;Fruszina Orosz (Hungary) / Constitutional borrowing in democratic and authoritarian transitions in Hungary, 1989‒2018
The proposed workshop represents the contribution of the Interest Group on “Cross-Judicial Fertilization. The Use of Foreign Precedents by Constitutional Judges” to the 2018 IACL World Conference on “Violent Conflicts, Peace-Building and Constitutional Law”. After exploring the use of foreign precedents in constitutional interpretation (Mexico 2010) and the use of foreign law in constitution-making and amending endeavors (Oslo 2014), on the occasion of the forthcoming 2018 World Congress the Group would like to focus more specifically on the role played by foreign legal sources in post-conflict and in-conflict conditions.
At least since the end of the Second World War, post-conflict and in-conflict environments have been especially receptive to external influences in constitution-making and -amending processes. This practice has developed further after 1989, also as a result of the more prominent role played by international actors in democratic transitions. At the same time, the circulation of case law has increased worldwide, as it is testified by the empirical researches carried out by the Group and by several dedicated studies and publications.
The purpose of the Workshop is to provide a comparative analysis of the role played by external influences in the constitution-making and interpretative endeavors that have characterized various post-conflict and in-conflict contexts, at different times and in different cultures. By way of example, Mexico after the revolution, post-war Germany, Italy, South Korea and Japan, Spain after Franco’s dictatorship, post-apartheid South Africa, Romania and Hungary after the fall of communism, Colombia after the peace agreement, Tunisia in the aftermath of the Arab Spring, and also Israel as a country that is still facing an emergency situation, in addition to other interesting paper proposals. In their papers, participants to the Workshop will investigate several key questions: What could be the reason behind the imitation of foreign constitutions? Who are the key actors facilitating reception of foreign or international legal materials? Are they domestic or international actors? What are the main areas where constitutional borrowing takes place? Is imitation of foreign models decided freely or imposed (and, in this latter case, by whom and through which channels)? What role did foreign models and possibly actors play in the appeasement of the conflict? Do foreign or international legal materials play a role in the interpretation of post-conflict and in-conflict domestic constitutional law? If so, do these sources facilitate the appeasement of the conflict and the achievement of a balance between the various parties to the conflict?
These issues will be considered in relation to efforts made to settle violent conflicts, reconstruct a peaceful political dialogue, consolidate a democratic regime or lower progressively the intensity of the conflict. The main purpose of the Workshop, therefore, is to assess the contribution of the circulation of constitutional ideas to peace-building activities.
WORKSHOP #21 Post-Soviet Constitutionalism and Peace Building
Sergey A. Belov (Russia / Russie) email@example.com
William Edmund Partlett ( Australia / Australie) firstname.lastname@example.org
1. Alexei Trochev (Kazakhstan) / Pragmatic Constitutional Court in Russia’s Dual State
2. Andre Tavares (Brazil)/ The Soviet social legacy in the Brazilian Constitution of 1988
3. Anna Troitskaya (Russia) / Methodology for the Study of Post-Soviet Constitutionalism
4. Cheryl Saunders (Australia) / Expanding the gene pool in comparative constitutional law
5. Ewa POPLAWSKA, (Poland) / Post-Soviet Legacy in Polish Constitutionalism and Social PeaceTitle
6. Jane Henderson (U.K.) / The Legacy of the Soviet past on Constitutions of the Subjects of the Russian Federation
7. Sergei Belov (Russia) / Soviet Values in the Russian Constitutional Identity Constructed by the Russian Consitutional Court Today
8. Serhiy Holovaty (Ukraine) / External Influences on the Constitution Building Process: the Ukraine Experience
9. William Partlett (Australia) / The Post-Soviet tradition of statist liberal constitutionalism
We propose a workshop entitled «Post-Soviet Constitutionalism and Peace Building» for the 2018 IACL World Conference in Seoul, Korea. This workshop is motivated by the 100th anniversary of the establishment of the Soviet legal and constitutional systems in the 1917 Russian Revolution. Our main goal is to evaluate the continuing legacy of Soviet constitutionalism for post-Soviet constitutionalism as well as constitutionalism more globally.
The reforms of the 1990s ended Soviet rule in both Eastern and Central Europe and the USSR. Major social conflicts accompanied these changes, and the conflicts were managed by new constitutions, providing social peace and fairness in the post-Soviet reality. Although it might appear that post-Soviet constitutional design conformed to the standards of the Western democracies, the Soviet past continues to leave a strong imprint on both post-Soviet constitutionalism as well as constitutionalism more globally.
We propose to investigate the Soviet legacy in the following ways.
First, we will explore the impact of the Soviet past on post-Soviet constitutionalism. The regulation of the “forms of property” or constitutional guarantees of social rights are examples.
Second, we will examine how the political and legal systems of the post-Soviet states are shaped by the legacy of the Soviet constitutional thinking both in constitutional theory as well as the practice of constitution-making and the application of constitutional norms and principles.
Within these dimensions we will also critically assess the exclusion of a Soviet legal family from comparative legal systematization and ask whether the Soviet legal family is really dead.
Finally, we will explore the continued influence of Soviet constitutional theory and practice on global constitutional development. For instance, we will ask: Which principles, recognized and established in constitutional democracies today (e.g., social solidarity principle in the Brazilian constitution) are the legacies of Soviet constitutionalism? In exploring these questions, we will also trace how post-Soviet constitutions and their Soviet legacy helped foster peace in the post-Soviet societies, split by reforms of political and economic systems and the unfair privatization of state property, violence and breach of rights under tough transition to the market economy, political pluralism and other institutions of constitutional democracies. A key point for discussion is the possible role of constitutionalism in reducing the confrontation of some post-communist states (namely, Russia, Belarus, Hungary) with other countries in the Europe or around the world
WORKSHOP #22 Internet in the Age of Ordinary Terrorism
Giovanna De Minico (Italy /Italie) email@example.com
Oreste Pollicino (Italy /Italie) firstname.lastname@example.org
1. Fulvia Abbondante (Italy) / Freedom of speech and social network in the age of terrorism: a comparative analysis
2. Almog Shulamit (Israel) / Blade Runner & Blade Runner 2049 As reflecting themes on Law, Technology and Definitions of Terrorism
3. Giovanni De Gregorio (Italy) / Countering pro-terrorism online contents: censorship, platforms and freedom of expression in the transnational constitutional order
4. Maria Francesca De Tullio (Italy) / Internet and Non-nationals: Is the Net a tool for Inclusion or Exclusion?
5. Maria Orefice (Italy) / ARTIFICIAL INTELLIGENCE AND THE RIGHT TO PRIVACY IN THE TIMES OF TERRORISM
6. Reisel Mary (Japan) / A World Without Heroes. Travels Along The Grey Zone of Good and Evil in the Garden of Virtual Delights
7. Rosario SERRA (Spain) / Processing personal data on EU cross-border movements to fight terrorism
8. Shcherbovich Andrey (Russia) / National sovereignty, security, and Internet governance: impact on constitutional principles and challenges for human rights of Internet users
9. Teruel Lozano Germán M. (Spain) / Glorification of terrorism as a limit to freedom of speech in social networks
The workshop focuses on three questions: what risks imperil the Internet, put under tension by the terrorism of ordinary times? Which was – and which shall be in a State of right – the supranational lawmakers’ reaction to this challenge? What role for the Judges?
a) Internet shows a dual, unprecedented and contradictory identity: a place for the exercise of all kind of freedoms, in its original position ancillary to the person, but also a field for the terrorism-related crimes. A role, the latter, involuntarily helpful to the terror strategy, which alienates the initial individuals’ sympathies from the net.
This two-faced Janus provoked a two-edged regulatory response: favourable and together adverse to freedoms. The different national legislations – affected by the various interventions – appear schizophrenic: they state everything and its opposite. Indeed, the capability of the Net, multiplier of the liberties, has called for a regulation expanding the rights (See European Regulation on Digital Single Market). Whereas the aptitude of the Internet to technically facilitate the commission of crimes, compared to what would happen in the material reality, has provoked, at national and supranational level, a regulation restraining the very same spaces of freedom increased before. One could consider the recruitment of terrorism, whose border with the right of association is very weak, because the crime is built on the model of the crimes of abstract danger (See Directive EU 2017/541, Art. 6).
b) In regard to Internet the response of the lawmakers, national and European (See USA Executive Order, 25/1/ 2017; Décret n° 2015-1475, 3 avril 1955; and Projet de loi renforçant la sécurité intérieure et la lutte contre le terrorisme, 18 juillet 2017), appears weighted in favour of security, having restricted everyone’s fundamental freedoms – and not only the terror suspect’ ones – in violation of the precautionary and proportionality principles. These two are the legitimacy tests with which the model of the ‘laws of fear’ shall comply to avoid transforming the State of right in an atypical regime of constant emergency.
c) Finally, the way Internet is tailored by the creative role played by the European Court of Justice and the European Court of Human Rights in reviewing the controversial relationship between the protection of personal data and the safeguard of national security, drawn by the legislator. The symbolic cases, Digital Rights Ireland and Schrems, differences apart, show how the balancing test works. In addition to this, Schrems will be the occasion to discuss about the new compromise resulting from the Privacy Shield. Its implementation does not seem to have resolved the uncertainties related to the level of protection provided by the US legal order and most notably by the Safe Harbor principles. We want to clarify that this part of the discussion will basically be focused on the possible evolution of the digital privacy enforcement and on the exploration of the relevant constitutional issues raised in line with the supranational constitutional framework of the two previous pillars.
WORKSHOP #23 Membership and exclusion in times of crisis and populism
Elisa Arcioni ( Australia / Australie ) email@example.com
Tomasz Koncewicz (Poland / Pologne) firstname.lastname@example.org / email@example.com
1. Amelia Simpson (Australia) / Creative Constitutional Interpretation and Protection of the 'Other' in Australia
2. Carlos Bernal (Colombia) / The People, the Constituent Power, and Populism in Constitution-Making
3. Elisa Arcioni (Australia) / Clash of citizenships
4. Francesca Strumia (Italy) / Opening the Ranks of Constitutional Subjects: Immigration, Identity and Innovation in Italy and Canada (co-authored with Asha Kaushal)
5. Giammaria Milani (Italy) / The right to a nationality in the International Courts of Human Rights
6. Giuseppe Martinico (Italy) / How can Constitutionalism deal with secession in the age of populism? The case of Referendums
7. Johanna Hase (Germany) / Where to Draw the Line? National and Constitutional Identity in Critical Times
8. Karen Kong (Hong Kong) / Residency, Inclusion and Access to Socio-economic Rights in Hong Kong
9. Krystyna Warylewska (Poland) / EU Membership in time of crisis. Back to the roots
10. Kuan-Wei Chen (Taiwan) / The Difficulties of the Identity in the Constitutional Community as a Divided Society in Taiwan
11. Mag. Antonia Wagner (Austria) /The political inclusion of foreign residents in Austria, Germany and Sweden – Unmasking a democratic deficit
12. Milka Sormunen (Finland) / Exclusion and nationality: child welfare and immigration case law of the European Court of Human Rights
13. Octaviano Padovese (Brazil) / Populism and State of Exception - the returning of the radical right wing strengthened by freedom
14. Patricia Mindus (Sweden) / Nationality, population design and constitutional identity: can there be an unconstitutional form of demos?
15. Reuven (Ruvi) Ziegler (Germany) / No vote= no voice? Political Rights of ‘Aliens’ under the ECHR
16. Sangeetha Pillai (Australia) / Tiered community membership in Australia: Constitutional concepts and contemporary developments
17. So Young Chang and Luicy Pedroza / The Inclusion of Non-Citizens in the Contemporary South Korean Polity
18. Tomasz Tadeusz Koncewicz (Poland)/ The Politics of Resentment and the (vanishing) European overlapping consensus
19. Valentina Carlino (Italy) / Rights of foreigners in times of migration crisis: the Italian case
20. Vrinda Narain (Canada) / Quebec’s Bill 62: Inclusion and Difference
21. Yan Haiyu / The Formation and Present Situation of Koreans in China
The constitutional identity of a ‘people’ can be affected by legal categories of membership and exclusion, as understood and applied by judicial, legislative and/or executive actors. Those categories may be informed by cultural norms, global developments, historical compromises. This workshop will explore the ways in which constitutions can and do perform the role of defining the community, particularly in times of crisis.
Issues of membership and exclusion often come to the fore of legal and political debates in moments of crisis. Such moments can be broadly construed as inclusive of crisis relating to terrorism, secession, domestic and international conflict, social tensions whether originating from within a society (eg religious, ethno-cultural), from elsewhere (eg migration-related, or related to non-domestic sources of law, etc), or from broader movements such as the rise of populism.
Papers addressing this theme, in its many aspects, are welcome. You may choose to focus on a particular state (or sub-national level of governance) or set of states; you may take a comparative perspective, across time or space; you may opt for philosophical, theoretical or doctrinal perspectives. The workshop’s aim is problem-oriented, not dictated by method. Relevant issues include (but are not limited to):
• Theoretical/philosophical/normative enquiries as to whether and if so, how, constitutions can/should play a role in identifying the relevant constitutional community.
• The locus of power concerning inclusion and exclusion (e.g. citizenship policy, migration policy, national identity policy): what institutional design is to be preferred and how ought such powers be exercised?
• Whether membership is or should be uniform across a nation, or whether there are legitimate claims for privilege or differential status within a state.
• The process whereby ‘constitutional identity’ and ‘sovereignty’ are used/abused to produce a homogenous vision of a society on the basis of supposedly common histories and thereby exclude all ‘others’.
• The impact of populism and populist constitutionalism on the possibility of diversity and plurality within a constitutional community.
• The relationship between formal inclusion or community membership and access to substantive membership rights including residence and political rights.
• The role of supranational integration in redrawing both the lines and meaning of constitutional belonging.
• The impact of membership of more than one nation state (for example through dual/multiple nationality) on concepts of constitutional identity.
• The potential disjuncture between formal inclusion/exclusion and substantive dis/connection to a nation-state.
Submissions are welcome from scholars of all levels, including doctoral candidates in law and related disciplines. The Workshop chairs will endeavour to assemble a group that reflects a diversity of perspectives, national origins, seniority and methodological approaches. We will explore the possibility of establishing a new IACL Research Group on Constitutional Membership and Exclusion.
WORKSHOP #24 External Influences on Constitution Building Processes
Cheryl Saunders (Australia/Australie) firstname.lastname@example.org
Chaihark Hahm (Korea/Corée) email@example.com
1. Alicia Pastor y Camarasa (Belgium) / The role of external actors during the Tunisian constitutional transition through the lens of critical comparative constitutional law
2. Anna Dziedzic (Australia) / Patterns of external influence: Making, drafting and interpreting constitutions in Samoa, Tonga and Tuvalu
3. Carlos Arturo Villagran Sandoval (Guatemala) / CONSTITUTIONALISING INTERVENTION IN THE AMERICAS: THE CICIG’S ‘SUCCESS’ IN CONTEXT
4. David Law (Hong Kong) / Imposed Constitutions and Romantic Constitutions
5. Eva Maria Belser (Switzerland) /
6. Georgia Macropoulou (Greece) / Accession to the EU: a legitimately imposed process for institutional reforms. Examples from Western Balkans
7. Hanna Lerner (Israel) /
8. Javier Couso (Chile) /
9. Maatje de Visser and Bui Ngoc Son (Singapore and Vietnam) /
10. Menaka Guruswamy (India) /
11. Mohamed Haddad (Algeria) /
12. Rohan Edrisinha (Sri Lanka) /
13. Sumit Bisarya (International IDEA) / External Advice and the Internal Forces and Mechanisms of Constitution Making
14. Wen-Chen Chang and Jiunn-rong Yeh (Taiwan) / Accession to the EU: a legitimately imposed process for institutional reforms. Examples from Western Balkans
15. Yasuo Hasebe (Japan) /
16. Zoran Oplocic (Canada) / Imagined Impositions? Constitution as Anticipation and Aspiration
External Influences on Constitution Building Processes
At least since the US interventions in Iraq and Afghanistan, constitutional scholars have been debating the merits and demerits of “imposed constitutionalism.” In some jurisdictions, similar issues had already been discussed under the rubric of “autochthonous constitution.” The idea that a constitution will be neither lasting nor legitimate unless it comes from the local people is of course a very powerful one. Theoretically, it is often understood to be a requirement of the principle of popular sovereignty. Practically, it may influence the effectiveness of the constitution.
Of late, however, such ideas have come under increasing scrutiny. As a descriptive matter, questions have been raised regarding the tenability of the “imposed/non-imposed” dichotomy. For example, recent instances of constitution-making—from Africa to the Balkans to South Asia to the Pacific—have all been the product of different forms of “joint ventures” between external agents and local actors. Even Japan’s postwar constitution, previously considered the paradigmatic case of an imposed constitution, is now known to have been made under conditions where locals had considerable agency. This suggests that there may be a spectrum, along which the relative involvement of local and international actors varies. Nor is this necessarily a new phenomenon. On one view, marks of foreign influence or other international impact can be found in even the earliest national constitutions.
In contemporary conditions, questions are also being asked regarding the conventional view that foreign involvement in a nation’s constitution building process will necessarily weaken its legitimacy. The proliferation of ‘guidelines’ and ‘standards’ from such international bodies as the UN and the Venice Commission regarding various aspects of a country’s constitutional arrangement may reflect a growing assumption that external agents can be legitimate partners in the process.
Despite the incidence of external influence on constitution building, however, the phenomenon remains deeply undertheorized. We still lack a proper framework with which to capture and understand the different modalities and effects of foreign involvements. What should be the proper vocabulary to be employed in assessing the influence of external agents on the legitimacy of national constitutions? Does the idea of constituent power or pouvoir constituant of “We the People” still have any meaning or relevance in light of the seeming ubiquity of foreign influence both during and after the adoption of a national constitution? How should we conceptualize the nature and form of the locals’ coordination with foreign participants and their subsequent ‘ownership’ of the constitution building process? It may be that we need new answers to the old question of how to understand popular sovereignty in relation to the project of constitutionalism.
This workshop is intended to be forum for exchanging ideas and arguments between participants—both theoreticians and practitioners—from a range of constitutional traditions and regions regarding these and other issues related to external involvement in the process of constitution building. Submissions may be country-specific reflections on constitution building experience with foreign influences or they may be comparative in perspective. Equally welcome are conceptual pieces addressing the more theoretical aspects of this multi-faceted phenomenon.
WORKSHOP #25 Transnational Criminality:
Boundaries and Constitutional Challenges on Criminal Justice and Procedures
Renwen Liu ( China / Chine ) firstname.lastname@example.org
Adriano Pedra (Brazil / Brésil) email@example.com
Cassius Guimaraes Chai (Brazil / Brésil) firstname.lastname@example.org
1. Adriano Sant'Ana Pedra (Brazil) / Extradition and commutation of punishments: a human rights based approach
2. Alberto Manuel Polleti Adorno (Paraguay / Italy) / EL HÁBEAS CORPUS, NUEVOS PLANTEAMIENTOS A PARTIR DE UNA VIEJA HERRAMIENTA PARA LA PROTECCIÓN DE LOS DERECHOS Y LAS LIBERTADES FUNDAMENTALES EN LA SOCIEDAD CONTEMPORÁNEA
3. Alcides Martins (Brazil) / Le Parquet brésilien et l'investigation Penal au sein de l'opération transnationale Lava Jato: la coopération internationale et ses défis constitutionnelles
4. Alex Sander Xavier Pires & Pedro Trovão do Rosário (Brazil / Portugal) / CULTURE OF PEACE AND CONSTITUTIONAL SOVEREIGNTY: AN
UNIVERSITY PROPOSAL FOCUSED ON THE INTERCULTURAL MEDIATION IN CRIMINALITY PREVENTION
5. Birgit Aasa (Estonia) / Trust as constitutionalism in the area of criminal justice – its theoretical limitations, and practical potentials. The example of the EU
6. Carolina Guimarães Pecegueiro Pereira (Brazil / Portugal) / The Selectivity of the International Criminal Court : a challenge to overcome
7. Cássius Guimarães CHAI (Brazil) / PLEA BARGAIN AND CRIMINAL PROCEDURE: THE AFTERMATH CRITICISM ON THE EVIDENCE GATHERING AGAINST INTERNATIONAL HUMAN RIGHTS STANDARDS
8. Cláudio Joel Brito Lossio (Brazil) / The Communications Monitoring Hacking on the Internet as a Terrorism Combat Tool and Human Rights Preservation
9. Cláudio Macedo de Souza (Brazil) / PERSPECTIVES AND TRENDS FOR THE FACING OF TRAFFICKING IN PEOPLE IN BRAZIL: An approach based on the United Nations Convention against Transnational Organized Crime.
10. SILVA JUNIOR, Dinaldo & CRISPINO, Nicolau Eladio Bassalo (Brazil) / TRANSNATIONAL CRIMINALITY: PENITENTIARY, DEPARTMENT OF JUSTICE, PUBLIC PROSECUTOR AND LAW ON THE FRENCH-BRAZILIAN BORDER
11. Elda Coelho de Azevedo Bussinguer (Brazil) / Medicine counterfeiting and Trafficking as transnational Criminal challenges to Human Rights protection
12. Ernest Duga Titanji (Cameroon) / Colonial Boundaries and the Question of the Legitimacy of Constitutional Control over Trans border Criminality in Africa
13. Germano Menon Forneck & Ricardo Alves Krug (Brazil) / Transnational crime policy enforcement: standardization or double standard?
14. Gregório Assagra de Almeida (Brazil) / THE NEW SUMMA DIVISIO INDIVIDUAL RIGHTS AND COLLECTIVE RIGHTS PARADIGM RUPTURE AND ITS IMPORTANCE TO IMPROVE ACCESS TO JUSTICE IN A VIOLENT WORLD
15. Konstantinos Margaritis (Greece) / COMBATING TRANSNATIONAL CRIME WITHIN EU: A GAP IN HUMAN RIGHTS?
16. Leonardo Augusto de Andrade Cezar dos Santos (Brazil) / POLITICAL PARTIES’ COMPLIANCE AND THE FUNDING BY ORGANIZED CRIME (COMBATING ELECTORAL FUNDING BY ORGANIZED CRIME X POLITICAL PARTY COMPLIANCE REQUIREMENTS)
17. Lindojon Geronimo Bezerra dos Santos & Guilherme Saldanha Santana (Brazil) /THE INTERNATIONAL POWER OF MEDIA AND ITS INFLUENCES IN PENAL LAW: a straight violation to the human rights
18. LIU Renwen (China) / The Description and Analysis of China’s Anti-terrorism Legislations
19. Marcio Aleandro Correia Teixeira (Brazil) / Modelling and Governance of Complex Systems of Public Policies
20. Maria do Socorro Almeida de Sousa (Brazil) / Child Working Protection against Transnational Modern Enslavement
21. Mário Ferreira Monte (Portugal) / Plea Bargaining and evidence gathering under constitutional scrutiny
22. Oleksandr Komarov (Ukraine) / Counteracing Organized Crime in conditions of armed conflict: lessons learnt from Ukrainian experience
The main purpose of this workshop is to discuss and present new perspectives on and for the Criminal Justice on Transnational Criminality context, approaching and framing the counterfactuality in between constitutional boundaries and challenges and the international jus cogens and human rights perspective.
Considered this scenario we would like to discuss the organized crime acting and reaction, once organized crime attacks the very fundamental values that we are trying to protect and on which we base our perception of structures, norms and standards. It also exploits lacunae and gaps that exist in legal systems and in legal thinking, mainly in the international instruments of procedures cooperation. We cannot ignore that, in order to achieve their goals and protect their interests, transnational criminal organizations are willing to use violence, bribery, and other such instruments to carry out their business activities. And, of course, a main characteristic of these groups is that their criminal practices are not limited to national boundaries
WORKSHOP #26 Constitutional Reasoning
András Jakab (Hungary / Hongrie) email@example.com
Adrienne Stone ( Australia /Australie) firstname.lastname@example.org
1 Stefan Martini (Germany) / Context-Dependency and Intrinsic Effects of Comparative Reasoning in National and Transnational Constitutional Law
2 Toerien van Wyk (Australia) / Riding the separation of powers seesaw: using subsidiarity to provide principle to judicial deference
3 Tarun Khaitan Anti-colonial constitutionalism in India
4 Jaclyn Neo (Singapore) / Secular Constitutionalisms and Constitutional Reasoning
5 Jamal Greene (U.S.A.) / Rights as Trumps
6 Howard Schweber (U.S.A.) / Continuity and Change in Constitutional Historiography
7 Niels Petersen (Germany) / Proportionality and Its Discontents: Why Robert Alexy’s theory of constitutional rights fails to defend and to describe the judicial practice regarding proportionality
8 Yvonne Tew (U.S.A.) / Courts and Constitutional Adjudication in Contemporary Malaysia and Singapore
9 Derek O’Brien (U.K.) / The Interpretation of Commonwealth Caribbean Constitutions: Does Text Matter?
10 Amelia Simpson (Australia) / ‘Structural’ equality and non-discrimination norms in constitutions: how distinctively do judges reason in these settings?
11 Rehan Abeyratne (Hong Kong) / Displacing Private Law: The Growing Dominance of Public Law in Asia
12 Jorge Alexander Portocarrero Quispe (Germany) / The outline of an argumentative theory of constitutional interpretation
13 Lael K Weis (Australia) / Judicial Reasoning and Constitutionally Obligatory Legislation
14 Serkan Yolcu (Turkey) / The Use of International Law as An Instrument of Argumentation in Constitutional Reasoning: The Case of Social Rights in Turkey
15 Guilherme Scotti / Menelick de Carvalho Nettó (Brazil) / "Balancing, proportionality and the ""one right answer"" in the argumentative practice of the Brazilian Supreme Court - several paths to normative correction? The case of hate speech"
16 Brian-Christopher Jones (U.K.) / Constitutional Paternalism: using constitutions (and constitutional ‘guardian’ rhetoric) to expand judicial power
17 Peter C Oliver (U.S.A.) / Sustainable Jurisprudence: Constitutional Reasoning, Constitutional Crises and the Rule of Law
18 Caitlin Goss (Australia) /History and the Constitution
19 Iddo Porat (Israel) / The Platonic Conception of the Israeli Constitution
20 Imer Flores (Mexico) / Constitutional Interpretation and Intelligent Fidelity: The Problems of Counter-Majoritarianism and Judicial Legislation
21 Eleonora Bottini (France) / Comparative Law Services in Supreme and Constitutional Courts and their impact on constitutional reasoning. Starting a new project.
22 Manon Altwegg-Boussac & Patricia Rrapi (France) / Les faux-semblants du « self-restraint »
23 Yoon Jin Shin (Korea) / Transnationalization of Constitutional Rights Practice: The Case of South Korea
Canons or methods of constitutional reasoning are highly debated in a number of jurisdictions, some of them are codified in constitutions, some of them are simply practiced by judges, yet others are only suggested by legal scholars. These canons are rules themselves which have to be justified, leading also to issues of separation of powers, and bringing up eventually general questions of legitimacy. Major theoretical debates on democracy, the rule of law or constitutionalism all have specific consequences for the preferred methods of constitutional reasoning. With the dramatic expansion of constitutionalism and constitutional review across the world, constitutional reasoning takes on ever more diverse forms and raising correspondingly complex questions about the nature of constitutions and the role of courts.
Some questions relate to the nature and legitimacy of constitutional review. How do judges justify, or hide, the ‘counter-majoritarian’ effect of their decisions? How should judges understand their role as constitutional interpreters? What role (if any) do non-judicial institutions have in determining the meaning of and justification for constitutional principles?
Narrowing the focus a little, questions abound about specific practices of constitutional reasoning. What role is therefore morality, politics and historical forms of analysis? How does constitutional reasoning intersect with other forms of domestic, transnational and international law? There are also pervasive doctrinal questions (like the role of proportionality) and questions that arise in relation to specific constitutional questions. Other questions are explicitly comparative in nature and investigate differences and similarities in constitutional reasoning across different legal systems and traditions.
A final set of themes arise from the special pressures on constitutional reasoning during times of conflict and transition (the theme of this World Congress). How much can and should constitutional reasoning take into account during difficult and transitional times?
This workshop is devoted to the phenomenon of constitutional reasoning broadly conceived. Papers are welcome on all aspects of reasoning (including but not limited to the themes just discussed) and maybe descriptive/analytical or normative. Papers that are comparative are especially strongly encouraged.
WORKSHOP #27 Accommodating Conflicts through
Federal Arrangements: from conflict management to secession
Patricia Popelier (Italy / Italie) email@example.com
1. Nicholas Aroney (Australia) (Australia) / Between Union and Devolution: the structure of the British Parliament as a Problem of Process
2. Arrach Abdeljabbar (Morocco) / Federal aspects of The Moroccan autonomy proposal as a solution to the Sahara conflict
3.Boujema Bouazzaoui (Morocco) / The Advanced Regionalization as a Constitutional Solution to the Conflict in Moroccan Sahara
4. Gonzalo Gabriel Carranza (Spain) / From Art. 155 of the Spanish Constitution to federal loyalty: can federal responses solve the Catalan problem?
5. De Visser Jaap (South Africa) / Federal peace-making processes in South Sudan
6. John Dinan (US) / State Government Resistance to Federal Policies in a Polarized Era
7. Laura Edwards (UK) / Federal Arrangements and Constitutional Secession Clauses
8. Cristina Fasone (Italy) / The Ambiguous Place of Regions under EU Law: Some Provocative Thoughts on the Idea to Proceduralize Secession at EU Level
9. Nathalia Ferreira Masson (Brazil) / Pacification by design: ethnofederalism as a constitutional option
10. Fessha Yonathan (Ethiopia) / The intersection of federalism and power sharing: The use of distributional requirement to manage conflicts in two African federations
11. Benjamen Franklen Gussen (New Zealand) / On the Kurdish Question: Secession through the Cooley-Eaton-McQuillin Thesis
12. Labanca Corrêa de Araújo Marcelo (Brazil) / The opening of judicial review process to state actors: reducing conflicts between federal and state orders through Courts
13. Giuseppe Martinico (Italy) / Accommodating Conflicts through Federal Arrangements: from conflict management to secession
14. Ogunniran Iyabode (Nigeria)/ The Practice of Federalism in Nigeria and the National Debate on ‘Restructuring’: Pathways for Conflict Resolutions and Stability
15. Maja Sahadžić (Croatia) / CONSTITUTIONAL ASYMMETRY AS A PROXY IN CONFLICT ACCOMMODATION
16. Skoutaris Nikos (Greece) / Secession in the EU constitutional order
17. Titanji Duga Ernest (Cameroon) / From federalism to secession: walking the Quagmire of the dearth of successive Cameroon constitutions to settle the mutation of the Cameroon anglophone question in recent years
Accommodating Conflicts through Federal Arrangements: from conflict management to secession
This open workshop aims at building on the achievements of the IACL Research Group on Subnational Constitutions in Federal and Quasi-Federal Orders and, more particularly, of workshops on subnational constitutionalism which took place at IACL World Congresses in Athens, Mexico City and Oslo. Its focus, however, is broadened, embedding the subnational perspective in a larger workshop on federal and quasi-federal arrangements.
The overall theme questions the role of federalism as an instrument of managing internal conflicts. As a state structure, federalism is often construed as a way to reconcile unity and diversity and thus handle conflicts and tensions of different natures. These tensions are in particular salient in multinational states, where organizing diversity is vital for the stability of the state, yet at the same time a factor that reinforces subnational identity and therefore a trigger for instability.
In keeping a balance between unity and diversity, (quasi) federal arrangements are dynamic, with non-violent conflicts as potential motors for its transformation. However, while, on the one hand, federalism has been successful in managing nationalist or ethnic conflicts, at times it has failed to live up to its expectations. In recent times, intensified autonomy claims have been increasingly leading to disruptive attempts by single regional communities to secede from the State they belong to, or to withdraw from the international political organization they are part of, at times leading to outbursts of violence.
The workshop consists of three sessions, approaching the overall theme from different angles.
Session 1 will examine how federalism, as an overall arrangement, deals with tensions and conflicts – not necessarily violent or traumatic – of different nature, such as ethno-linguistic and/or socio-economic ones. This includes ‘best practices’: for example, the first European Communities were created as a hybrid form of (con)federal arrangement to put an end to the devastating wars that had plagued the continent for centuries; in Belgium, a complex federal arrangement resulted in peaceful consociational cohabitation. It also explores the potential of federalism for post-war rebuilding processes in countries such as Afghanistan, Iraq or Bosnia. And it deals with cases where its adoption has not been entirely successful (see, for example, the USSR, former Yugoslavia or post-colonial federations that did not last long, such as Indochina and Burma).
Session 2 will take a subnational perspective, considering subnational constitutionalism in a problematic way and questioning its role in accommodating potential or actual conflicts between federal and multi-layered orders. The Catalan and Flemish cases, where the reform of the Estatut and the striving for a Charter for Flanders have been a matter of controversy, are just two examples of the problematic role of subnational constitutionalism in legal orders which are marked by potential or actual conflicts.
Session 3 is focused on the time when federal arrangements are no longer able to temper secession claims. Recent political events, particularly in the ‘old’ Europe (Catalunya, Scotland, the UK vis à vis the EU), but also beyond such area (Donetsk and Lugansk vis à vis Ukraine, as far as Kurdistan vis à vis Iraq), have shown that public law and especially constitutional law seems able to offer only ineffective answers to secession attempts. Such answers may stretch from a completely blunt set of legal and political weaponry, to the opposite case of the legitimization of the use of brute force against peaceful demonstrators. This session engages constitutional law scholars in dealing with the problematic aspects (both procedural and substantial) of secession, and come up with a shared practical solution in terms of how domestic law should be amended or construed in order to smooth out inconsistencies stemming from the guarantee of territorial integrity of any sovereign State.
Given the interdisciplinarity of the subject, we aim at exploring all the above issues by gathering scholars with different backgrounds and adopting different methodological approaches, in compliance with the overall spirit of IACL. We also encourage the submission of paper proposals which do not only focus on federations in Europe and North America but also in the global South. Comparative insights are highly appreciated.
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