Published by De Gruyter

Volume 15 Issue 1

Issue of ICL Journal

Contents
Journal Overview

Publicly Available March 22, 2021

Articles

March 12, 2021

Legitimate and Illegitimate Political Self-entrenchment and Its Impact on Political Equality

Antonios Kouroutakis

Page range: 1-20

Abstract

Self-serving politicians and self-entrenchment of the political establishment is a diachronic problem tantalizing liberal democracies. Incumbent political actors around the world constantly purport to entrench not only their presence in the political arena, but also their power and as a result, barriers to entry to new political actors are set, the chain of the democratic choice is disrupted and equality of opportunity is distorted. This article focuses on the available means in the constitutional system in order to safeguard a level playing field in the political arena. To this end, this article has three scientific objectives. First, it elaborates on the significance of equality of opportunities in the political system. Second, it identifies how political self-entrenchment creates an uneven playing field. Third, it focuses on the remedies that exist in the constitutional system and examines both legal and quasi legal mechanisms. With an analysis on the current means that are available in the constitutional system, the judicial review, and the alternative political processes based on independent bodies and quasi-judicial mechanisms, this article concludes that self-entrenchment and self-serving politicians are mainly left to be resolved by political means, the so called self-corrective promise of politics.

March 12, 2021

The Constitutional Imaginary: Shared Meanings in Constitutional Practice and Implications for Constitutional Theory

Alexander Latham-Gambi

Page range: 21-51

Abstract

In this article, I seek to defend three main claims: Firstly, that the kinds of practices that are the object of study of constitutional theorists are undergirded by certain fundamental shared understandings. Secondly, that these shared understandings together form a rich fabric of meaning that is, broadly speaking, held in common across modern western societies, which I call the ‘constitutional imaginary’. Thirdly, that political institutions play a symbolic role as ‘repositories’ of shared understandings, which is crucial for the development, maintenance, propagation and evolution of the constitutional imaginary. On the basis of these claims, I propose a distinctive role for constitutional theory: the interpretation of the social meaning of political institutions and the actions and events that take place in and around them.

Notes and Essays

March 12, 2021

Writing While Quarantined: A Personal Interpretation of Contemporary Comparative Constitutional Law

Mark Tushnet

Page range: 53-66

Abstract

This Essay is a personal reflection on the state of scholarship in the field of comparative constitutional law. I draw parallels between the development of and reaction to ‘critical perspectives’ on domestic US comparative constitutional law today. I argue that the parallels have similar political roots, in concern that critical perspectives undermine the ability of constitutional law, whether domestic or comparative, to resist conservative and antiliberal tendencies. I conclude with some speculations about the source of the political commitments by scholars of comparative constitutional law, and in particular about the way the field’s overall cosmopolitanism affects scholarship on anti-cosmopolitan populisms.

March 12, 2021

Self-Determination Through Autonomy or Independence? – On the Current and Future Position of New Caledonia

Markku Suksi

Page range: 67-105

Abstract

New Caledonia is a colonial territory of France. Since the adoption of the Nouméa Accord in 1998, a period of transition towards the exercise of self-determination has been going on. New Caledonia is currently a strong autonomy, well entrenched in the legal order of France from 1999 on. The legislative powers have been distributed between the Congress of New Caledonia and the Parliament of France on the basis of a double enumeration of legislative powers, an arrangement that has given New Caledonia control over many material fields of self-determination. At the same time as this autonomy has been well embedded in the constitutional fabric of France. The Nouméa Accord was constitutionalized in the provisions of the Constitution of France and also in an Institutional Act. This normative framework created a multi-layered electorate that has presented several challenges to the autonomy arrangement and the procedure of self-determination, but the European Court of Human Rights and the UN Human Rights Committee have resolved the issues regarding the right to vote in manners that take into account the local circumstances and the fact that the aim of the legislation is to facilitate the self-determination of the colonized people, the indigenous Kanak people. The self-determination process consists potentially of a series of referendums, the first of which was held in 2018 and the second one in 2020. In both referendums, those entitled to vote returned a No-vote to the question of ‘Do you want New Caledonia to attain full sovereignty and become independent?’ A third referendum is to be expected before October 2022, and if that one also results in a no to independence, a further process of negotiations starts, with the potential of a fourth referendum that will decide the mode of self-determination New Caledonia will opt for, independence or autonomy.

March 12, 2021

Names beyond Gender-Based Borders

László Detre, Endre Orbán

Page range: 107-113

Abstract

The Constitutional Court of Hungary held that the lack of regulation which provides a name changing procedure for lawfully settled non-Hungarian citizens violated the right to human dignity and the prohibition of discrimination.

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 15 Issue 1

Issue of ICL Journal

Frontmatter

Legitimate and Illegitimate Political Self-entrenchment and Its Impact on Political Equality

Abstract

The Constitutional Imaginary: Shared Meanings in Constitutional Practice and Implications for Constitutional Theory

Abstract

Writing While Quarantined: A Personal Interpretation of Contemporary Comparative Constitutional Law

Abstract

Self-Determination Through Autonomy or Independence? – On the Current and Future Position of New Caledonia

Abstract

Names beyond Gender-Based Borders

Abstract