Welcome to the 10th World Congress
of Constitutional Law
2018 SEOUL 18-22 June 2018
"Violent Conflicts, Peace-Building
and Constitutional Law."
Click the topics for details
WORKSHOP #1 The Debate on Establishment of the World Constitution
Andrew L. Strauss (USA) (email@example.com)
Byong Yoon, Cho (Korea) (firstname.lastname@example.org)
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) (email@example.com)
Martin Scheinin (Finland/ Finlande) (firstname.lastname@example.org)
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) (email@example.com)
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) (firstname.lastname@example.org)
Eivind Smith (Norway/ Norvège) (email@example.com)
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) (firstname.lastname@example.org)
Federico Fabbrini (Italy/ Italie) (email@example.com)
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) (firstname.lastname@example.org)
Javier Couso Salas (Chile/ Chili) email@example.com
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) (firstname.lastname@example.org)
Jihong Mo (China/ Chine) (email@example.com)
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) (firstname.lastname@example.org)
Miyoko Tsujimura (Japan/ Japon) (email@example.com)
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) (firstname.lastname@example.org)
Tom Ginsburg (USA) (email@example.com)
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) (firstname.lastname@example.org)
Rainer Arnold (Germany/ Allemagne) (email@example.com)
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.firstname.lastname@example.org)
Surya Deva (India/ Inde) (email@example.com)
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.firstname.lastname@example.org)
Helle Krunke (Denmark/ Danemark) (email@example.com)
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) (firstname.lastname@example.org)
Simon Young (Hong Kong, China/ Chine) (email@example.com)
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) (firstname.lastname@example.org)
Anne Levade (France) ( email@example.com)
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) (firstname.lastname@example.org)
Ricardo Ramirez Calvo (Argentina/ Argentine)(email@example.com)
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.firstname.lastname@example.org)
Michel Rosenfeld (USA) (email@example.com)
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) (firstname.lastname@example.org)
Axel Kaemmerer (Germany/ Allemagne) (email@example.com)
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) (firstname.lastname@example.org)
Marek Zubik (Poland/ Pologne) (email@example.com)
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) (firstname.lastname@example.org)
Xavier Philippe (France) (email@example.com)
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) firstname.lastname@example.org
Gianluca Gentili (Italy /Italie) email@example.com
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) firstname.lastname@example.org
William Edmund Partlett ( Australia / Australie) email@example.com
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) firstname.lastname@example.org
Oreste Pollicino (Italy /Italie) email@example.com
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 ) firstname.lastname@example.org
Tomasz Koncewicz (Poland / Pologne) email@example.com / firstname.lastname@example.org
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) email@example.com
Chaihark Hahm (Korea/Corée) firstname.lastname@example.org
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 ) email@example.com
Adriano Pedra (Brazil / Brésil) firstname.lastname@example.org
Cassius Guimaraes Chai (Brazil / Brésil) email@example.com
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) firstname.lastname@example.org
Adrienne Stone ( Australia /Australie) email@example.com
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) firstname.lastname@example.org
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.