Published by De Gruyter

Volume 12 Issue 4 -

Issue of ICL Journal

Contents
Journal Overview

Publicly Available March 8, 2019

Articles

March 8, 2019

Commandeering the Institutions: The Legitimacy of Structural Judicial Remedies in Comparative Perspective

Guillermo Otálora Lozano

Page range: 387-429

Abstract

In some countries, courts protect constitutional rights by ordering broad institutional reforms and overseeing those reforms. These broad orders are known as structural remedies, and they are currently part of the judicial practice of the United States, India, and Colombia. Structural remedies pose a problem of democratic legitimacy in that courts substitute for legislatures or administrators. This paper argues that structural remedies are democratically legitimate as long as they are used as a last resort and are aimed at addressing a specific institutional pathology within the legislature or the bureaucracy. Drawing from the experience of the United States, India, and Colombia, the paper distinguishes counter-legislative from counter-bureaucratic remedies in order to show that the democratic concerns raised may vary depending on the affected institution. The paper argues that structural remedies are legitimate if they are capable of correcting a pathology in the legislative or administrative process. With respect to legislatures, structural remedies should aim at improving the representative or the deliberative quality of legislative decisions. In the case of bureaucracies, they should aim at improving the subordination of agencies to the political process, their responsiveness to citizens’ concerns, and the expertise with which their tasks are carried out.

March 8, 2019

Same-Sex Marriage and Italian Exceptionalism

Matteo M Winkler

Page range: 431-456

Abstract

This article unveils Italy’s exceptionalism in recognising and protecting same-sex couples by adopting a three-dimension analysis: constitutional, comparative and supranational. It maintains that, compared to other countries whose courts were sympathetic with the legal claims raised by lesbian and gay people, Italy’s Constitutional Court adopted a totally different approach, reinforcing the heteronormativity of marriage in a way that delayed all efforts to pass a law on same-sex registered partnerships. The Constitutional Court, in particular, interpreted the Constitution, the experience of other nations and supranational law according to heteronormativity, an example that is unique in the comparative context. As an illustration, this article addresses the case Bernaroli vs Ministry of the Interior . In Bernaroli , a male-to-female transgender person wanted to remain married to her wife notwithstanding the transition. The case ignited a heated debate among scholars and questioned the courts’ opinions as to the human rights dynamics surrounding same-sex marriage and, more importantly, about the current role of heteronormativity in marriage law. This article concludes that the legal existence of Bernaroli’s marriage represents a constant challenge to the status quo and highlights the permanent crisis of heteronormativity. After the Austrian Constitutional Court’s recent ruling that declared the law on same-sex domestic partnership to be discriminatory, heteronormativity’s defence became even more untenable, making Italy’s a true exception in the continent’s legal landscape.

Notes and Essays

March 8, 2019

(In)Security and Self-Government: Lessons from the Mexican Experience

Catalina Pérez Correa, Carlos De la Rosa Xochitiotzi

Page range: 457-495

Abstract

Using the Mexican experience in the centralization of public security, this paper proposes federalism as a model of a vertical control of powers and, more importantly, a way of promoting self-governance, citizen participation and, through them, local security. We argue that while federalism as an organizational model of the State does not guarantee self-governance or citizen participation, it can help promote them and through their enhancement, improve security at the community level. Since 2006, the Mexican government has implemented a security strategy that has increasingly centralized public security decisions. The strategy relies on the deployment of federal security forces (Army, Navy and Federal Police) across the country, to replace or support state and local police. The results have been mostly negative. On one hand, there has been an exacerbation of violence in the country, including many incidents in which violence was used disproportionately or illegally by state officials against civilians. On the other, the use of federal forces has undermined the federalist regime which serves as a check on the exercise of power by federal authorities, thus undermining state and local institutional capacities. The lessons from the Mexican case can be useful for other federal systems responding to organized crime.

Book Review

March 8, 2019

The Problem with Precedent

E Guerra-Pujol

Page range: 497-504

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 12 Issue 4 -

Issue of ICL Journal

Frontmatter

Commandeering the Institutions: The Legitimacy of Structural Judicial Remedies in Comparative Perspective

Abstract

Same-Sex Marriage and Italian Exceptionalism

Abstract

(In)Security and Self-Government: Lessons from the Mexican Experience

Abstract

The Problem with Precedent