Published by De Gruyter

Volume 13 Issue 4 -

Issue of ICL Journal

Contents
Journal Overview

Publicly Available March 8, 2020

Articles

March 10, 2020

Establishment of a Peace Regime on the Korean Peninsula: Definition, Process, and Cooperation

Jootaek Lee

Page range: 307-321

Abstract

Depending on how we define a peace regime, we can determine whether we have reached a peace regime on the Korean peninsula, or what and how we have to pursue to reach a peace regime. A new definition of a regime should not be too broad to admit the current balance of powers based on hegemonies and states’ patterns of behaviors, or too restrictive and formal to codify as a multi-national treaty; a simple peace treaty cannot cover everything a peace regime needs to have and reflect the complicated process of peace building, cooperation and tension-reduction. In this paper, I will attempt to find the most-realistic definition for a peace regime to provide an ultimate peace on the Korean peninsula. Further, I will think about how to reach the newly defined peace regime on the Korean peninsula and the obstacles to overcome to reach this peace regime, including: (1) Denuclearization; and (2) How a peace regime can be transnationally supported and peacefully digested and incorporated into the domestic level processes and norms, especially considering that reaching a regime reflecting national interests is a daunting task. Lastly, I will conclude with recommendations for states surrounding the Korean peninsula.

March 10, 2020

Dignity, Integrity, and the Concept of a Person

Adeno Addis

Page range: 323-372

Abstract

The idea of human dignity, found in almost all legal and political cultures, now plays a very significant role in political and legal discourse. The concept occupies a prominent place in many national constitutions and international human rights conventions. Some constitutional and conventional laws in fact claim that the pursuit of dignity is (or should be) the central organizing principle of every government. Yet, it is not always clear what this seemingly central concept means or entails. Its popularity seems inversely related to its clarity. Dignity is often invoked in support of opposing positions on the same issue. Using an approach that the article refers to as dignity pragmatism , the author advances the argument that careful examination of the use of dignity in national constitutions and international human rights documents and their elaboration by the relevant tribunals shows that the idea of human dignity is often used in the context of defending the integrity of the person. Here integrity is defined as the condition of wholeness or completeness. The article details what the conditions for integrity are and how human dignity is invoked in its defense. On this account, dignity is an existential value. It is about personhood in its various dimensions – physical, psychological and social. When integrity as wholeness is threatened, existence itself is threatened. Viewed this way, indignity is the effacement of personhood.

March 10, 2020

International(ized) Constitutional Court: Kosovo’s Transfer of Judicial Sovereignty

Enver Hasani, Getoar Mjeku

Page range: 373-402

Abstract

This paper discusses the transfer of judicial sovereignty in Kosovo from a comparative perspective. In particular, it addresses the transfer of constitutional jurisdiction to the Special Court of Kosovo. This court was formed as a result of Kosovo’s commitment to address allegations made by the Council of Europe in a document known as the Dick Marty report. The report alleges that war crimes and crimes against humanity and international law were committed during and in the aftermath of the Kosovo war (1998–1999). It took several years for the Court to be formed as constitutional amendments, legal infrastructure, and other practical steps were needed to make the Court operational. These preparatory measures have been taken, but practical results are missing, and there is fear that the Court might end up like previous UN- and EU-led justice systems, which did too little and were too late to address the culture of impunity in Kosovo.

Notes and Essays

March 10, 2020

Reimagining Law and the Constitution: Carl Schmitt and American Constitutional Scholarship

Xiaodong Ding

Page range: 403-427

Abstract

This article studies the debate between Schmitt’s theory and legal positivism, which Schmitt identifies as a typical liberal theory of law. Schmitt’s theory, I argue, provides a powerful critique of legal positivism, while offering a meaningful, alternative understanding of law that begins not with norms, but with the will of a legitimate decider. To demonstrate the continuing relevance of the debate Schmitt had with legal positivism, I turn to what I describe as a similar legal positivism/Schmitt debate in American constitutional scholarship. Ultimately, I take a side in this debate, arguing for a fully Schmittian understanding of the Constitution as the will or continuous decision of the people, rather than as positive constitutional norms existing independently of politics.

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 13 Issue 4 -

Issue of ICL Journal

Frontmatter

Establishment of a Peace Regime on the Korean Peninsula: Definition, Process, and Cooperation

Abstract

Dignity, Integrity, and the Concept of a Person

Abstract

International(ized) Constitutional Court: Kosovo’s Transfer of Judicial Sovereignty

Abstract

Reimagining Law and the Constitution: Carl Schmitt and American Constitutional Scholarship

Abstract