Published by De Gruyter

Volume 11 Issue 3 -

Issue of ICL Journal

Contents
Journal Overview

Publicly Available October 21, 2017

Articles

October 19, 2017

The Politics of Global Constitutionalism

Ekaterina Yahyaoui Krivenko

Page range: 329-349

Abstract

The article argues that no understanding of global constitutionalism will be complete without a thorough discussion of its political dimension. The current state of scholarship on global constitutionalism is dominated by discussions of legal elements. However, any theory of global constitutionalism has an underlying vision of the political. Without discussing this underlying vision of the political global constitutionalism will remain incomplete. In particular the article demonstrates that the contemporary debates on global constitutionalism are plagued by a contradiction between its aims and its underlying vision of the political. Thus, global constitutionalism postulates individuals as central units of its concern. However, by maintaining states as central actors although in a changed form and with fewer powers global constitutionalism unwittingly subscribes to a vision of the political anchored in the state form and based on the exclusion/inclusion dynamic. This vision of the political is most clearly articulated by Carl Schmitt. The discussion of his view of the political demonstrates that the political based on the state form makes the project of global constitutionalism impossible. The only way forward is an open discussion of different visions of the political and a search for a more adequate vision of the political able to further the aims of global constitutionalism and its focus on individuals. The article discusses one of these alternative visions of the political, namely the concept of the coming politics and coming community as articulated by Giorgio Agamben. It demonstrates how with this vision of the political the project of global constitutionalism can conceive of a political community fully dedicated to the singularities of each individual human being without creating divisions. The article concludes that in order for global constitutionalism to continue as a viable project, an open and explicit discussion of the political is called for.

October 19, 2017

The Judicial Dialogue in Europe

Adding Clarity to a Persistently Cloudy Concept

Maria Daniela Poli

Page range: 351-364

Abstract

The increasing interdependence among different legal orders makes the role of jurisprudence ever more vital in the European constitutional space. As a consequence, the judicial dialogue is at the centre of academic debates. However, it is still an unclear concept, enveloped by a cloud of scepticism. Starting from the main criticism based on the number of judicial conflicts, the article aims to add clarity to the concept by analysing the nature and the dimension of the phenomenon, with particular attention paid to the importance of the homogeneity created by judges.

October 19, 2017

Regional Economic Integration and the Reality of Strong National Constitutional Powers in South America. A Comparative Analysis

Liliana Lizarazo Rodríguez, Philippe De Lombaerde

Page range: 365-386

Abstract

This paper contributes to the discussion on the potential of today’s regional economic integration projects in South America. The starting point is a global mapping exercise of constitutional references to regionalism, which allows locating and typifying the South American constitutional contexts in comparison to global patterns. This global analysis is then connected to the context of South American constitutionalism, on the one hand, and the institutionalization of the various sub-regional economic integration schemes, on the other. The article finds that although South American constitutions refer more frequently to regionalism than the global average and incorporate clauses that promote regional cooperation and integration, very often these clauses are compensated by other clauses that seek the protection of national sovereignty and safeguard the absolute supremacy of the national constitutional framework. This helps to explain the inherent limitations of South American regional economic integration projects towards the future, and non-compliance with regional rules in the past.

Notes and Essays

October 19, 2017

International Constitutional Law – Inclusive, but Still Selective?

Judith Köbler

Page range: 387-408

Abstract

Developing international constitutional law, apart from difficulties concerning its definition, faces certain well-known problems – ranging from its pluralistic mode of creation to its enforceability, but has also to scrutinise its aims. If its aim is to at least provide a global reference framework for constitutional principles and concepts – since serving as a common set of values does reach its own limits rather quickly eg concerning fundamental issues such as the role of women in society or sustainability – it has to be inclusive in nature. Certain areas of international law, such as human rights – via Universal Periodic Review or treaty monitoring bodies such as CAT – or WTO law interact closely with national constitutional and/or regional international law (ECHR) and or regional constitutional/public law (eg EU Law). Therefore, their ideas may be taken up – voluntarily through courts or academia, due to examination mechanisms through governments or tribunals – be modified (if necessary to fit into a national constitutional system or supranational constitutional framework) and transported back into the global community (eg as feedback within a WTO case or an UPR). This, however, is event driven. Therefore, it cannot be a carefully conceptualised coherent law such as national constitutions. National (and land constitutions, which may also provide important ideals) constitutions in general serve several functions: as set of values eg in the area of fundamental rights, for structuring the state functions by setting up institutions and modes of operation, and as reference for the interpretation of norms eg in court cases. Their overall purpose is to provide a coherent inner regime. Nevertheless, by promoting certain selected ‘institutionalisable’ constitutional ideas (for example through the rule of law initiative) we can aim to strive from a fragmented towards a more coherent global framework.

October 19, 2017

Special Topic: The Romanian Constitution at 25 – A Critical Examination of Romanian Constitutionalism

Silvia Suteu

Page range: 409-412

October 19, 2017

The Multinational State That Wasn’t: The Constitutional Definition of Romania as a National State

Silvia Suteu

Page range: 413-435

Abstract

This article looks at the constitutional label of Romania as a ‘national state’ and the constitutional discourse surrounding it. It argues that this label is unavoidably linked to a project of constitutional nationalism. The article examines the origins of the provision enshrining this state characteristic, as well as the eternity clause declaring it unamendable, so as to reconstruct the genealogy of the idea of the national state in Romania. The article traces the origins of the concept to early-twentieth century nation-building discourse but links its current incarnation to the distinctive type of nationalism promoted in late communist and early post-communist Romania and its fear of the Hungarian ‘other’. This fear seeped into debates in the 1990–1991 constituent assembly debating the new constitution, which proceeded to disregard calls for a more pluralist definition of the state and clearer constitutional protection for national minorities. While some of these choices were revisited during the 2003 revision of the constitution, the fundamental law retains its emphasis on the national state. To this day, Article 1 (1) continues to be contested, especially by representatives of the Hungarian community. At the same time, it is invoked and creates confusion every time administrative territorial reorganisation is entertained. The article argues that greater clarity is required in understanding the concept and operation of the national state provision, as well as openness to an inclusive national dialogue surrounding this constitutional unsettlement. Only by moving the constitutional discourse beyond the highly politicised debates of years past, and the ‘us versus them’ mentality informing them, can Romanian constitutionalism show a maturity in keeping with its recent 25-year anniversary.

October 19, 2017

The Romanian Constitution and Civic Engagement

Paul Blokker

Page range: 437-455

Abstract

The article discusses civic engagement in Romanian constitutionalism. First, I briefly discuss theoretical dimensions of the relation between citizens and constitutional change. Second, the Romanian Constitution will be analyzed in terms of formal constitutional instruments of civic participation. Third, civic engagement in constitution-making and constitutional reform since 1991 will be studied. I will conclude that in the early years of Romanian democratic constitutionalism, citizens’ formal possibilities and actual capacities for engagement in constitutional politics have been severely limited. Civic participation has, however, become more promising and prominent in the 2003 and 2013 reform processes. The Romanian dual experience with the Forum Constituţional ought to be studied as part of a larger wave of participatory constitutional reform in Europe, which also helps to bring out a more general problem of such reform, ie, the lack of formal institutionalization of civic participation.

Constitutional Developments

October 19, 2017

Austrian Constitutional Court: Constitutionality of the Obligation to Bear Costs in Criminal Proceedings

Judgment of 14 March 2017, G 40/2016

Mathias Eller

Page range: 457-466

Abstract

The Austrian Constitutional Court ruled on applications alleging infringements of fundamental rights and on the constitutionality of the obligation to bear costs in criminal proceedings as stipulated in the Austrian Code of Criminal Procedure. The Court, however, dismissed the applications and stated that acquitted persons in criminal proceedings are generally not entitled to any reimbursement. Neither the Equality Clause nor other fundamental rights, including those safeguarded in the ECHR, have been infringed by the provisions in question.

October 19, 2017

Austrian Constitutional Court: Considering Climate Change as a Public Interest is Arbitrary – Refusal of Third Runway Permit Annulled

Judgment of 29 June 2017, E 875/2017

Birgit Hollaus

Page range: 467-477

Abstract

In the present case, the Constitutional Court found that in having considered climate change as public interest opposing the permitting of a third runway at Vienna International Airport, the deciding court had comprehensively misjudged the applicable law and thus acted arbitrarily. ‘Climate change’, the public interest in climate protection respectively, is not a public interest reflected in the Austrian Aviation Act, which the deciding court relied upon; interpreting the Act in light of the Austrian Federal Constitutional Act on Sustainability cannot newly found such a public interest. Highly anticipated, the judgment of the Constitutional Court surprises with its line of reasoning in arriving at this conclusion.

About this journal

Objective
The Vienna Journal on International Constitutional Law (ICL Journal) is dedicated to the advancement of legal knowledge in the field of International Constitutional Law. Advised by a body of distinguished jurists the Journal publishes high-standard peer-reviewed contributions by scholars and legal professionals from around the globe. 　

Topics

European Constitutional Law
Public International Law
Constitutionalization of International Law
Internationalization of Constitutional Law
Migration of Constitutional Ideas
Legal Theory
Comparative Constitutional Law

By linking these select perspectives the Journal endorses an approach towards a coherent understanding of International Constitutional Law, thus preparing the ground for novel answers to the challenges of a changing global legal framework. The Journal addresses the global scientific community, scholars and researchers in various disciplines working in the field of International Constitutional Law. Moreover, the Journal provides information on recent constitutional developments relevant to practitioners as well as academics, particularly by monitoring the case law of Constitutional Courts in Central and Eastern Europe.

Article formats
Research articles, notes & essays, reports, book reviews.

Volume 11 Issue 3 -

Issue of ICL Journal

Frontmatter

The Politics of Global Constitutionalism

Abstract

The Judicial Dialogue in Europe

Adding Clarity to a Persistently Cloudy Concept

Abstract

Regional Economic Integration and the Reality of Strong National Constitutional Powers in South America. A Comparative Analysis

Abstract

International Constitutional Law – Inclusive, but Still Selective?

Abstract

Special Topic: The Romanian Constitution at 25 – A Critical Examination of Romanian Constitutionalism

The Multinational State That Wasn’t: The Constitutional Definition of Romania as a National State

Abstract

The Romanian Constitution and Civic Engagement

Abstract

Austrian Constitutional Court: Constitutionality of the Obligation to Bear Costs in Criminal Proceedings

Judgment of 14 March 2017, G 40/2016

Abstract

Austrian Constitutional Court: Considering Climate Change as a Public Interest is Arbitrary – Refusal of Third Runway Permit Annulled

Judgment of 29 June 2017, E 875/2017

Abstract