Published by De Gruyter

Volume 8 Issue 2

Issue of ICL Journal

Contents
Journal Overview

Publicly Available February 8, 2017

Page range: 129-130

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Articles

February 8, 2017

The Anatomy of China’s Human Rights Regime: A Behaviourally Underpinned Analytical and Evaluative Account

Roda Mushkat

Page range: 131-185

Abstract

The Chinese politico-legal system, including the human rights component thereof, has long been the subject of intense academic and policy interest, despite its increasingly ‘soft’ features. A multiyear economic expansion and active participation in globalization processes have been accompanied by some loosening of governmental control mechanisms but, by Western standards, this has been a distinctly slow journey. The acquisition of power by this rapidly rising international player has also given rise to concerns about the broader implications of a combination of substantial State capabilities and an ambivalent posture towards human rights, as widely conceived. In addition to traditional perspectives, the issue has been addressed by resorting to social science-type methodological tools and employing them in order to gain a better understanding of the workings of a rule-based regime that straddles domestic and global territory. Considerable progress has been made, yet the task has not been approached exhaustively and accumulation of knowledge has been an intermittent affair. An elaborate and structured literature review is undertaken here for the purpose of identifying gaps on this specific front and concrete strategies to narrow them materially.

Notes

February 8, 2017

Judges and Policy Making Authority in the United States and the European Union

Antonios E. Kouroutakis

Page range: 186-200

Abstract

Institutions such as the US Supreme Court and the European Court of Justice in due time have developed a status of supremacy through judicial activism. The main target of the article is to identify the judicial activism exercised by these Courts and to reason its need in the legal order. In the first part the US Supreme Court and the European Court of Justice are placed in the overall polity that they belong to and the development of their status and their characteristics are analyzed. The major concern of the first part is to examine how those declared their supremacy and focus on major cases and their reasoning. In the second part the extent of the judicial supremacy in each legal order is discussed and its effects in the decision making process are examined. The assumption that judicial activism is acceptable only if it expresses consensus in the legal order is tested and it is argued that up to an extent, Judicial Activism does not distort the political agenda when it expresses the consensus of the legal system. Finally, it is argued that when such activism exceeds the boundaries of the consensus, the other actors in the legal system would eventually react and would limit such activism.

February 8, 2017

Are Austrian Courts Obliged to Consider the Jurisprudence of the European Court of Human Rights when Interpreting the ECHR?

Claudia Mayer, Herwig Wutscher

Page range: 201-211

Abstract

According to the prevailing opinion, ECtHR judgments do not bind the members of the Council of Europe beyond the individual case. The aim of this paper is to present arguments against this prevailing opinion and make a case for a legally binding effect of ECtHR judgments beyond the individual case within the Austrian legal order. We demonstrate that such an obligation follows from the system and telos of the ECHR and the constitutional principles of legal certainty and equality before the law and not only arises when a systematic problem in Austria is concerned, but also where well-established case-law of the Court exists. Moreover, we approach the question from an EU law perspective and argue in favour of a legally binding, albeit limited, effect of the Court’s judgments by virtue of EU law.

Developments Austria

February 8, 2017

Electronic Monitoring of Sexual Offenders: No Violation of the Principle of Equal Treatment

Johannes Schön

Page range: 212-217

February 8, 2017

European Fiscal Compact is Held to be in Accordance with the Constitution

Christoph Schramek

Page range: 218-223

February 8, 2017

Assisted Reproduction in the Shadow of the Past

Marion Guerrero

Page range: 224-234

Developments CEE

February 8, 2017

Hungarian Constitutional Court: The Hungarian System of Transfer of Cases

Daniel Viktor Török

Page range: 235-242

February 8, 2017

Constitutional Court of Georgia: Deprivation of Driving License – a Sanction or a Cause of Discrimination?

Ketevan Shubashvili

Page range: 243-248

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 8 Issue 2

Issue of ICL Journal

Table of Contents

The Anatomy of China’s Human Rights Regime: A Behaviourally Underpinned Analytical and Evaluative Account

Abstract

Judges and Policy Making Authority in the United States and the European Union

Abstract

Are Austrian Courts Obliged to Consider the Jurisprudence of the European Court of Human Rights when Interpreting the ECHR?

Abstract

Electronic Monitoring of Sexual Offenders: No Violation of the Principle of Equal Treatment

European Fiscal Compact is Held to be in Accordance with the Constitution

Assisted Reproduction in the Shadow of the Past

Hungarian Constitutional Court: The Hungarian System of Transfer of Cases

Constitutional Court of Georgia: Deprivation of Driving License – a Sanction or a Cause of Discrimination?