Published by De Gruyter

Volume 6 Issue 3-4

Issue of ICL Journal

Contents
Journal Overview

Publicly Available February 8, 2017

Preface

February 8, 2017

Looking to New Horizons

Christoph Bezemek, Eberhard Eberhard, Claudia Fuchs, Konrad Lachmayer

Page range: 371-371

Articles

February 8, 2017

Constitutional recognition of the agrarian collective and their rights to govern mineral resources in South Sudan

Alexandra Carleton

Page range: 372-409

Abstract

Both the ICCPR and the African Charter embody, as a primary principle, the right of a peoples' to freely dispose of their natural wealth and resources (article 1(2) and article 21(1) respectively). Whilst hotly debated as to its legal and political status, operationalising a right could enable agrarian communities to contest the disposal of their mineral wealth. However, such a right ought to be embodied in the constitution, where its alterability is perhaps less subject to political change. Without constitutional standing for collectives to assert claims over land, the State could potentially lease or sell mineral rights (sometimes to multiple extractors at once) irrespective of the environmental, labour and economic considerations. The secession of South Sudan is demonstrative of the South Sudanese peoples' active reclamation of their natural (and substantial mineral) wealth. This article is a critique of whether the new Transitional Constitution of South Sudan (TCRSS) effectively embodies and operationalises article 1(2) of the ICCPR. It concludes that the TCRSS is dedicated to articulating and protecting (competing) agrarian interests in land and natural resources and in so doing demonstrates the reality of multiple and overlapping mineral and land interests.

February 8, 2017

On Climate Migration and International Trade

Rafael Leal-Arcas

Page range: 410-440

February 8, 2017

On the Disruption of Post-colonial Constitutional Order: Hans Kelsen or Carl Schmitt?

Syed Sami Raza

Page range: 441-467

Abstract

In wake of a coup d′état in 1958, the Supreme Court of Pakistan is asked to decide on its legality. The court, faced with lack of precedent, relies on Hans Kelsen's legal positivism. Over the next five decades the key theoretical basis of the decision is summoned in several other cases in different post-colonial states. This essay develops a critique of the application of Kelsen's theory. The aim of the critique, as well as an added theoretical contribution, is that I engage Carl Schmitt's critique of Kelsen. Accordingly, I redeem the 1920s debate between Kelsen and Schmitt in order to caste critical light on the court decisions. Moreover, I engage Schmitt's own constitutional theory in order to provide an alternative answer to the question of constitutional disruption. The task is twofold: first, to evaluate Kelsen's (liberal) constitutional theory, which purportedly seeks to answer the non-liberal or non-democratic challenge posed by constitutional disruption and dictatorship, and second, to explore the democratic element in the non-liberal theory of Schmitt. My conclusion is that although Kelsen gives politically correct principle of “the efficacy of change” as the basis of legality of constitutional disruption, however, the main steps in his theory do not support the principle. Moreover, the principle draws him away from his liberal constitutionalism. On the other hand, Schmitt's explanation of the same principle based as it is in a non-liberal or realist theory, answers well the question of disruption and dictatorship. Thus the courts that engage Kelsen remain hardpressed to defend their decisions, while those other courts that challenge Kelsen come close to Schmitt.

Special Topic

February 8, 2017

The Austrian Administrative Court as a tribunal – justified double standard under Art 6 para 1 ECHR? Reflections following the judgment of the ECtHR in the case of Steininger v Austria

Claudia Mayer, Herwig Wutscher

Page range: 468-484

Constitutional Developments in Austria

February 8, 2017

IP Addresses and the Right to Secrecy of Telecommunications

Andreas Lehner

Page range: 485-488

EMA@ICL

February 8, 2017

Ending Consociational Power-Sharing. The Sejdić and Finci Case and the Prospects for Constitutional Reform in Bosnia and Herzegovina

Hildur Boldt

Page range: 489-547

Abstract

Consociationalism is frequently adopted as a tool to resolve conflicts in deeply divided societies. It is increasingly considered only a transitional arrangement, because it is an impediment to democracy and social peace in the long-term. It is therefore relevant to explore the possibilities to end consociational arrangements. Bosnia and Herzegovina has by all accounts a dysfunctional and discriminatory political system based on ethnic representation. Corporate consociational provisions of the constitution were found to be in violation of the European Convention of Human Rights in the Sejdić and Finci case. This thesis seeks to understand the legal and political effects of that judgment and the prospects of ending the corporate consociational arrangements in Bosnia and Herzegovina, in order to allow for politics that are not solely based on ethnicity. The prospect for constitutional reform are discussed based on previous attempts at constitutional reform in Bosnia and Herzegovina; the Dutch, Austrian and South African experiences; and insights from theory of democratic transitions.

Book Reviews

February 8, 2017

Wolfgang Benedek, Florence Benoît-Rohmer, Wolfram Karl, Manfred Nowak, Matthias C. Kettemann (eds.), European Yearbook on Human Rights 2011, Neuer Wissenschaftlicher Verlag, 2011, ISBN 978-3-7083-0769-5, 592 pp.

Gisela Kristoferitsch

Page range: 548-549

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 6 Issue 3-4

Issue of ICL Journal

Inhalt

Looking to New Horizons

Constitutional recognition of the agrarian collective and their rights to govern mineral resources in South Sudan

Abstract

On Climate Migration and International Trade

On the Disruption of Post-colonial Constitutional Order: Hans Kelsen or Carl Schmitt?

Abstract

The Austrian Administrative Court as a tribunal – justified double standard under Art 6 para 1 ECHR? Reflections following the judgment of the ECtHR in the case of Steininger v Austria

IP Addresses and the Right to Secrecy of Telecommunications

Ending Consociational Power-Sharing. The Sejdić and Finci Case and the Prospects for Constitutional Reform in Bosnia and Herzegovina

Abstract

Wolfgang Benedek, Florence Benoît-Rohmer, Wolfram Karl, Manfred Nowak, Matthias C. Kettemann (eds.), European Yearbook on Human Rights 2011, Neuer Wissenschaftlicher Verlag, 2011, ISBN 978-3-7083-0769-5, 592 pp.