N ICONI Welcom  S CONEfere STATNCEMEe NTS 2 e CII O urtScheduleS, POwer, PublIC law 3 G a COPIII PleeNHnaaGryeN E vents 6 5IV – 7 cJulyoncurr 2017 ing Panels 12 NH

e Overview 13 Panel SessionS 1 28 OP Panel SessionS 2 76 C Panel SessionS 3 126 Panel SessionS 4 178

2017 Panel SessionS 5 231 Panel SessionS 6 278 V ICON  S Inaugural Governance 326 VI ICON  S Conference Proceedings Series 327 e VII Service 328

NC VIII Map of Conference venues & floor plans 330 IX Participants 339 fere ON C

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ICONS2017.dk ICON  S 2017 TABLE OF CONTENTS 1 #ICONSCPH ICON I WelcomE STATEMENTS 2 II Schedule 3 III Plenary Events 6 IV concurring Panels 12 Overview 13 Panel SessionS 1 28 Panel SessionS 2 76 Panel SessionS 3 126 Panel SessionS 4 178 Panel SessionS 5 231 Panel SessionS 6 278 V ICON  S Inaugural Governance 326 VI ICON  S Conference Proceedings Series 327 VII Service 328 VIII Map of Conference venues & floor plans 330 IX Participants 339

ICON  S 2017 TABLE OF CONTENTS 1 Welcome to this year’s ICON  S conference in Copen- I WelcomE hagen. iCourts, Centre of Excellence for International II SchedulE Wednesday Courts, is both proud and honoured to host this year’s annual conference of the International Society of STATEMENTS Public Law at the brand new premises of the Faculty of 5 July 2017 Law, University of Copenhagen. ICON  S has in recent years established itself as a key hub for international, national and transnational studies of public law. And by its uniquely inclusive approach, it has facilitated en- counters between junior and senior scholars of many fields of law and connected disciplines. We warmly welcome all of the participants in the 2017 Everything should be in place for new and critical Annual Meeting of ICON  S, the International Society of encounters between scholars of public law. For years, 12:00 – 13:00 Registration Public Law. The challenging global and domestic politi- Denmark has been assessed as the happiest place cal developments of the last few years make the in- on earth by numerous studies. The much celebrated → Radisson Blu Scandinavia Hotel terdisciplinary study of public law at the local, national, movement of New Nordic cuisine started in Denmark a regional and global level ever more urgent and impor- decade ago. And Copenhagen, a small but cosmopoli- tant. This, yet again, will be our largest Annual Meeting tan capital city, has been good at projecting its image 13:00 – 13:20 Opening remarks since the foundation of the Society in 2013. The panels, as the place of bicycles and fun. Copenhagenize is roundtables and plenary events address the Confer- even the name of an organisation seeking to globalise → Radisson Blu Scandinavia Hotel ence’s overarching theme of “Courts, Power, Public the Copenhagen way of life: High trust in public in- Law” and other topics at the heart of contemporary stitutions and an egalitarian and democratic culture public law inquiry. We are grateful to our Copenhagen seemingly epitomised by the abundance of bicycles. hosts for their extraordinarily hard work and creativ- Things are perhaps slightly more complex in the 13:20 – 14:30 Keynote ADDRESS ity in putting together such a truly mega-sized event, home country of the little mermaid. Already in 1603, → Radisson Blu Scandinavia Hotel and we thank our sponsors for their generous support. Shakespeare famously noted that something was Most of all, we thank you, the ICON  S members, for “rotten in the State of Denmark”; In 2015, another Eng- your overwhelmingly positive response to the call for lishman published the bestseller “The Almost Nearly papers this year, and for volunteering your time and Perfect People” which zoomed in on the less than per- 14:30 – 15:00 Coffee Break energy to promote the success of the Society and its fect parts of Danish and Nordic society. For scholars annual conference. Together, we have created what we of public law, and particularly those specialising in EU → Radisson Blu Scandinavia Hotel believe to be a rich, inclusive and intellectually exciting law, Denmark has been a reluctant traveler since the program featuring scholars, jurists and policy makers 1970s. And the country has in recent years made the from various disciplines and from literally four corners news with its strict measures on immigration. 15:00 – 16:30 Plenary Panel I of the world. We wish you a very enjoyable and reward- The complexities of contemporary society – from ing conference! the global challenges to the Danish model to the refu- Global Economic Injustice gee crisis – are at the heart of the discipline of pub- Gráinne de Búrca Ran Hirschl lic law. This year’s theme Courts, Power, Public Law → Radisson Blu Scandinavia Hotel New York University University of Toronto & speaks directly to these and other current challenges. Universität Göttingen We welcome your contribution to these debates. And we welcome you to experience a little hygge – another 16:30 – 17:00 Walk to The Faculty of Law ( 500 m ) Co-Presidents, ICON  S, recent Danish export – while contemplating the future the International Society of Public Law of law and society.

Mikael Rask Madsen 17:00 – 18:30 Panel Sessions I p. 28 – 75 Director of iCourts Sessions 1 – 31 Centre of Excellence for International Courts → Faculty of Law Local host 18:30 – 19:30 Opening reception → Faculty of Law, Atrium

welcome STATEMENTS 2 ConsChedulecurring panels 3 Thursday 6 July 2017 Friday 7 July 2017

09:00 – 10:30 Panel Sessions II p. 76 – 125 09:00 – 10:30 Panel Sessions V p. 231 – 277 Sessions 32 – 66 Sessions 136 – 167 → Faculty of Law → Faculty of Law

10:30 – 11:00 Coffee Break 10:30 – 10:45 Coffee Break → Faculty of Law, Atrium → Faculty of Law, Atrium

11:00 – 12:30 Panel Sessions III p. 126 – 177 10:45 – 12:15 Panel Sessions VI p. 278 – 325 Sessions 67 – 101 Sessions 168 – 199 → Faculty of Law → Faculty of Law

12:30 – 14:00 Lunch Break 12:15 – 12:30 Snack Break → Faculty of Law, Atrium → Faculty of Law, Atrium

14:00 – 15:30 Plenary Panel II 12:30 – 14:00 Plenary Panel III High Courts and Political International Courts in the Power: A Conversation with 21 st Century Three Prominent Jurists → Faculty of Humanities ( Aud. 23.0.50, → Faculty of Humanities ( Aud. 23.0.50, Aud. 23.0.49 / overflow hall ) Aud. 23.0.49 / overflow hall ) → Faculty of Law ( Aud. 9A-1-01 + → Faculty of Law ( Aud. 9A-1-01 + Aud. 9A-3-01 / overflow hall ) Aud. 9A-3-01 / overflow hall )

15:30 – 16:00 Coffee Break → Faculty of Law, Atrium

16:00 – 17:30 Panel Sessions IV p. 178 – 230 Sessions 102 – 135 → Faculty of Law

sConchedulecurring panels 4 Conschedulecurring panels 5 Op ening remarks Keynote address III Plenary WED 13 : 00 13 : 20 – 14 : 30

Events Gráinne de Búrca Bryan Stevenson New York University, Professor, Equal Justice Co-President, ICON  S Initiative / New York University

Gráinne de Búrca is Florence Bryan Stevenson is the founder Ellinwood Allen professor of and Executive Director of the law at New York University Equal Justice Initiative in Mont- law school. She is director of gomery, Alabama. Mr. Steven- the Hauser Global Law Fac- son is a widely acclaimed ulty program and co-director public interest lawyer who has of the Jean Monnet Center at NYU. Prior to joining dedicated his career to helping the poor, the incarcer- NYU, she held tenured posts as professor at Harvard ated and the condemned. Under his leadership, EJI Law School, Fordham Law School, and at the Euro- has won major legal challenges eliminating excessive pean University Institute in Florence, and was Fellow and unfair sentencing, exonerating innocent death of Somerville College at Oxford University. Her main row prisoners, confronting abuse of the incarcerated fields of research are in European Union law, human and the mentally ill and aiding children prosecuted as rights and discrimination, and international and trans- adults. Mr. Stevenson has successfully argued several national governance. She studied law at University cases in the United States Supreme Court and re- College Dublin and the University of Michigan and was cently won an historic ruling in the U.S. Supreme Court admitted to the bar at Kings Inns, Dublin. She is co- banning mandatory life-without-parole sentences for editor of the leading OUP textbook: EU Law, currently all children 17 or younger are unconstitutional. EJI in its sixth edition, and co-editor of the International has also initiated major new anti-poverty and anti- Journal of Constitutional Law. discrimination efforts challenging the legacy of racial inequality in America. Mr. Stevenson’s work fighting Mikael Rask Madsen poverty and challenging racial discrimination in the Director of iCourts, criminal justice system has won him numerous awards University of Copenhagen including the ABA Wisdom Award for Public Service, the MacArthur Foundation Fellowship Award Prize, Mikael Rask Madsen is the the Olaf Palme International Prize, the ACLU National founder and Director of iCourts, Medal Of Liberty, the National Public Interest Lawyer The Danish National Research of the Year Award, the Gruber Prize for International Foundation’s Centre of Excel- Justice and the Ford Foundation Visionaries Award. lence for International Courts, In 2015, he was named to the Time 100 recognizing Professor of European Law and the world’s most influential people. Recently, he was Integration at the University of Copenhagen and mem- named in Fortune’s 2016 World’s Greatest Leaders list. ber of the Danish Royal Academy of Sciences and Let- He is a graduate of the Harvard Law School and the ters. He has been a visiting scholar at numerous uni- Harvard School of Government, has been awarded 26 versities, including Berkeley, Oxford, Sorbonne, EHESS honorary doctorate degrees and is also a Professor of and Strasbourg. Trained as both a lawyer and sociolo- Law at the New York University School of Law. He is gist, he has helped pioneer the sociology of interna- the recent author of the critically acclaimed New York tional law, notably by empirical studies of processes of Times bestseller, Just Mercy, which was named by legal globalization. He is currently directing a system- Time Magazine as one of the 10 best books of nonfic- atic empirical exploration of the causes and conse- tion for 2014 and has been awarded several honors quences of the proliferation of international courts, including the Carnegie Medal by the American Library which includes field work on three continents. He is the Association for the best nonfiction book of 2014 and author of numerous books and articles. Recent articles a 2015 NAACP Image Award. include ‘How Context Shapes the Authority of Interna- tional Courts’, Law and Contemporary Problems, (2016), co-authored with K. Alter and L. Helfer, and ‘Between Universalism and Regional Law and Politics: A Com- parative History of the American, European and African Human Rights Systems’, I  CON, International Journal of Constitutional Law (forthcoming), with A. Huneeus.

Plenary Events 7 Money’s Legal Hierarchy MOderAtor 1974, she taught for seven years in the Faculty of Law Plenary Panel I This paper discusses the way in which global money Erika De Wet at the University of British Columbia as a tenured As- is legally constructed and hierarchically structured. In Professor, University of sociate Professor. Her judicial career began in April WED 15 : 00 – 16 : 30 financial markets, participants trade different forms Pretoria 1981 when she was appointed to the Vancouver County of money, some of which is state-issued and some Court. In September 1981, she was appointed to the privately issued. A form of money is closer to the “apex” Since January 2016 Erika de Supreme Court of British Columbia. She was elevated Global Economic of the system the closer it is to entities with unlimited Wet is the SARChI Professor to the British Columbia Court of Appeal in December power to issue money. During financial crises, market of International Constitutional of 1985 and was appointed Chief Justice of the Su- Injustice participants close to the “apex” are at a systematic Law in the Faculty of Law, Uni- preme Court of British Columbia in September 1988. advantage compared to participants at the “periphery.” versity of Pretoria, South Africa. Seven months later, in April 1989, she was sworn in as The way in which access to the setting of the “rules of Since July 2015 she is also Honorary Professor in the a Justice of the Supreme Court of Canada. On January Global Economic Injustice: A Note the game” happens, reveals questions of justice at Faculty of Law, University of Bonn, Germany. Between 7, 2000, she was appointed Chief Justice of Canada. The paper argues that the problem of global economic the very core of the financial system, both with regard 2011 and 2015 she was founding Co-Director of the She is the first woman in Canada to hold this position. injustice (GEI) is multifaceted and calls for multidisci- to its unchecked hierarchies and to the unjustified Institute for International and Comparative Law in Af- In addition to her judicial duties at the Supreme Court, plinary analysis. It then proceeds to identify and touch distribution of losses it creates. rica and Professor of International Law in the Faculty the Chief Justice chairs the Canadian Judicial Council, upon several dimensions of the problem including of Law of the University of Pretoria. Erika De Wet ob- the Advisory Council of the Order of Canada and the the ways of evidencing GEI, the internal and external Katharina Pistor tained her B. Iur and LL. B as well as her LL. D at the Board of Governors of the National Judicial Institute. causes of GEI, the question of global economic justice Professor, University of the Free State (South Africa). She holds The Chief Justice is the author of numerous articles (GEJ) in the absence of a global demos, the different Columbia Law School an LL. M from Harvard University and completed her and publications. types of duties the international community owes weak Habilitationsschrift at the University of Zurich (Switzer- economies, the practical measures or reforms that can Katharina Pistor is the Michael land) in December 2002. Since 2014 she is a member be undertaken, the social forces and actors that can I. Sovern Professor of Law at of the General Council of the International Society of Marta Cartabia make this possible, the role of international lawyers Columbia Law School and Public Law ( ICON  S). Justice, Vice President of the in this process and the need to explore alternative director of the Law School’s Constitutional Court of Italy visions of a just global economic order. Center on Global Legal Trans- formation. Her research and Marta Cartabia is full professor Bhupinder Chimni teaching spans corporate law, corporate governance, Plenary Panel II of constitutional law. In Septem- Professor, Jawaharlal Nehru money and finance, property rights, comparative law ber 2011, she was appointed at University, Delhi and law and development. She has published widely THU 14 : 00 – 15 : 30 the Italian Constitutional Court in legal and interdisciplinary journals and is the au- and since November 2014 she Prof. Dr. B. S. Chimni is Profes- thor and co-author of several books. Her most recent is serving as Vice-President. sor of International Law, School co-edited volume is “Governing Access to Essential Her research focuses on national and European con- of International Studies, Jawa- Resources” (Columbia University Press, 2015). In 2012 High Courts and stitutional law, constitutional adjudication and protec- harlal Nehru University. He has she received the Max Planck Research Award on In- Political Power: tion of fundamental rights. She taught in several Italian served as Vice Chancellor of ternational Financial Regulation and in 2015 she was Universities and was visiting scholar and professor in the West Bengal National Uni- elected member of the Berlin-Brandenburg Acad- A Conversation France, Spain, Germany and US. She was Inaugural versity of Juridical Sciences, Kolkata (2004 – 2006). emy of Sciences. She is also the recipient of research Fellow at Straus Institute for Advanced Study in Law He has been a Visiting Professor at Brown and Tokyo grants by the Institute for New Economic Thinking and with Three Promi- and Justice and Clynes Chair in Judicial Ethics at Notre Universities and held visiting positions at Harvard, the National Science Foundation. Dame University, Indiana, USA (2012). She is a member Cambridge, Minnesota, and York universities. He is nent Jurists of the Inaugural Society’s Council of ICON  S – The In- an associate member of Institut de Droit Interna- ternational Society of Public Law. She sits in the scien- tional, and Member, Academic Council, Institute for There is economic injustice galore and we rightly bris- Injustice tific and editorial board of a number of academic legal Global Law and Policy, Harvard Law School. He is the tle at such. Turning against the principal global existing journals. Among many books, articles and chapters, in Editor-in-Chief of the Indian Journal of International and proposed regulatory regimes such as the WTO, 2015, with V.Barsotti, P.Carozza and A.Simoncini, she Law. His most recent publication is the second edi- NAFTA, TTIP and TPP is, I shall argue, misconceived. Beverley MCLachlin co-authored the book Italian Constitutional Justice in tion of his book International Law and World Order: Chief Justice, Global Context (Oxford). A Critique of Contemporary Approaches (Cambridge Joseph H. H. Weiler Supreme Court of Canada University Press, 2017). Professor, New York University Chief Justice McLachlin spent J. H. H. Weiler is University Pro- her formative years in Pincher fessor, NYU School of Law. He Creek, Alberta and was edu- serves, too, as Editor-in-Chief cated at the University of Al-

of the European Journal of In- Grogan Photographer © SCC, Roy berta, where she received a ternational Law and Co-Editor- B.A. (Honours) in Philosophy in in-Chief of the International 1965. She pursued her studies at the University of Al- Journal of Constitutional Law berta and, in 1968, received both an M.A. in Philosophy (I  CON). and an LL.B. She was called to the Alberta Bar in 1969 and to the British Columbia Bar in 1971 and practised law in Alberta and British Columbia. Commencing in

Plenary Events 8 Plenary Events 9 ANDRÀS SAJÒ Shaheed Fatima Drawing on a set of new empirical studies of interna- Professor, Plenary Panel III Senior Counsel, UK tional courts, this presentation will address these key Central European University questions and propose a set of interpretations of the FRI 12 : 30 – 14 : 00 Shaheed Fatima Q.C. is a bar- current situation of international courts and the global András Sajó is well known for rister at Blackstone Chambers, legal order of the 21st century. his substantial contribution as London. She specialises in in- a professor of Constitutional International ternational law, public law and Mikael Rask Madsen Law and, as such, he has taken commercial law. Her practice Director of iCourts, part in the drafting of the post- Courts in the extends beyond English courts University of Copenhagen communist constitutions of st and includes the European several Eastern European countries as well as those 21 Century Court of Human Rights, UN treaty bodies, arbitral tri- See CV on page 7 of Ukraine, Georgia and South Africa. He is currently bunals and the EU courts. In January 2017 The Lawyer a University Professor at Central European University, magazine named her one its ‘Hot 100’ leading lawyers; Budapest. His most recent publication “The Constitu- Silvia Fernández in December 2013 she was listed in Chambers UK’s tion of Freedom” will be published in November 2017 de Gurmendi Top Junior Bar 100; in October 2013 she was awarded with OUP. In his homeland, Hungary, he has occupied President, International Junior of the Year in Human Rights and Public Law several high-level positions working on the country’s Criminal Court (ICC) (by Chambers Bar Awards; having been shortlisted constitutional development. Since 2008 he has been in the same category in 2011) and in 2005 she was MOderAtor a judge of the European Court of Human Rights and, Judge Silvia Fernández de awarded the Human Rights Lawyer of the Year Award Phoebe Okowa in this capacity, he has dealt with a number of cases Gurmendi has over 20 years (by Liberty and Justice). Prior to being appointed Professor, Queen Mary concerning the presence of religious symbols in pub- of practice of international Queen’s Counsel in 2016, Shaheed was a member lic space. Moreover, he has worked in his own country and humanitarian law and in of the Attorney General’s Public International Law ‘A’ Phoebe Okowa is Professor of and at the international level for the abolition of the human rights. Coming to the Panel (2014 – 2016) and the Attorney General’s ‘A’ Panel Public International Law at death penalty. He has worked as a consultant for both Court from the Ministry of Foreign Affairs where she (2011 – 2016), having previously been on the ‘B’ Panel Queen Mary, University of the United Nations and the World Bank and is Global was the Director General for Human Rights, Judge (2009 – 2011). She is working on the second edition of London. Born and educated in Visiting Professor at New York University. Fernández de Gurmendi acted as a representative of her book, International Law and Foreign Affairs in Eng- Kenya, she holds a Bachelor of Argentina in cases before the Inter American Commis- lish Courts (anticipated 2017 / 2018, Hart Publishing) Laws degree from the Universi- sion of Human Rights and the Inter American Court of and is a founding editor of the transatlantic national ty of Nairobi. She was a graduate student at the Univer- MOderAtor Justice. Judge Fernández de Gurmendi contributed security blog, “Just Security”. She has taught law at sity of Oxford where she obtained her Bachelor of Civil Ran Hirschl to the creation and set up of the Court. She was also Pembroke College / University of Oxford, Harvard Law Law degree and a Doctorate in Public International Professor, instrumental in the negotiations of the complemen- School, NYU School of Law and the Graduate Institute Law. She previously taught at the University of Bristol University of Toronto tary instruments of the Rome Statute as chair of the in Geneva. In April 2017 she was appointed chair of the and has been a Visiting Professor at the University of Working Group on Rules of Procedure and Evidence legal panel of the Inquiry on Protecting Children in Con- Lille and Stockholm. Most recently, she was Global Ran Hirschl (PhD, Yale Univer- and the Working Group on Aggression. Her academic flict, chaired by Gordon Brown (the UN Special Envoy Visiting Professor at New York University, School of Law. sity) is Professor of Political experience includes professorships of international for Global Education and former UK Prime Minister). Professor Okowa has had extensive academic and Science & Law at the Univer- criminal law at the universities of Buenos Aires and practical involvement in the application of international sity of Toronto and holder of Palermo and as an assistant professor of international law. She is also both a member of the Kenyan bar and the Alexander von Humboldt law at the University of Buenos Aires. Authority in Question: International the Permanent Court of Arbitration at The Hague. Her Professorship in Comparative Constitutionalism at Courts in the Changing World Order teaching and research interests are in the broad area the University of Göttingen. He is the co-president Over the past two decades scholars have observed a of Public International Law, especially the law of armed of ICON  S, the International Society of Public Law. The Strasbourg Court and the UK great expansion of international courts: more courts, conflict, international environmental law and interna- Hirschl is the author of Towards Juristocracy: The Ori- The Human Rights Act 1998 makes it unlawful for pub- more judgments and generally more influential and tional criminal law. She has published extensively on gins and Consequences of the New Constitutionalism lic authorities, including courts, to act incompatibility consequential courts and judgements. Yet this ex- a range of specific contemporary international law (Harvard University Press, 2004); Constitutional The- with certain ECHR rights and requires courts “to take pansion is now being challenged both in Europe and topics including the law of state responsibility, use of ocracy (Harvard University Press, 2010) — winner of the into account” Strasbourg judgments. The role of the many other regions where the authority of international force and the protection of natural resources in con- 2011 Mahoney Prize in Legal Theory; and Comparative Strasbourg Court and the effect of its judgments have courts is increasingly questioned. In Europe, the re- flict zones, as well as the relationship between state Matters: The Renaissance of Comparative Constitu- been scrutinised as a result of this “domestication” of form-agenda of the European Court of Human Rights and individual responsibility for international crimes. tional Law (Oxford University Press, 2014) — winner of the ECHR. Some of that scrutiny has challenged the has radically changed from a concern with improv- the 2015 APSA C. Herman Pritchett award for the best legitimacy and credibility of the Court, and led to calls ing the functioning of the Court to a new objective of book on law and courts, as well as over 100 articles for the repeal of the 1998 Act. This paper will analyse greater deference to national legal and political institu- and book chapters on comparative constitutionalism those challenges and consider the future relationship tions. In Africa, a number of regional courts have faced and judicial review. Professor Hirschl is the recipient between the Court, the UK executive and the UK courts. pushback from the member states and one might even of several prestigious research and scholarly awards say that certain international courts are in a precari- in five different countries: Canada, Israel, the United ous situation. In Latin America and the Caribbean, the States, Australia and Germany. In 2014, he was elected picture is more mixed but similar trends can be ob- Fellow of the Royal Society of Canada — the highest served. What explains these apparent changes and academic accolade in that country. what are their implications for the global legal order?

Plenary Events 10 Plenary Events 11 overview p. 36 7 Can litigation save the IV concurring environment? Access to justice and the effectiveness of environmental laws Participants: Andreas Hofmann, Agnes Hellner, Panels Yaffa Epstein / Moderator: Andreas Hofmann Panel session I Wednesday, 5 july 2017 17:00 – 18:30 p. 38 8 Caught in Between: How International and Domestic Courts Reconfigure p. 29 1 Constitutional actors and Political Contests into constitutional change: Legal Questions Comparative Perspectives Participants: Emily Kidd White, Tamar Megiddo, Participants: Jurgen Goossens, Yvonne Tew, Nadiv Rocío Lorca Ferreccio / Moderator: Emily Kidd White Mordechay, Gonzalo A. Ramírez-Cleves, David Landau / Moderator: Yaniv Roznai p. 39 9 Challenging Racial Margin- ality in Public Institutions – p. 31 2 “The constitutional case Marginality in Practice of the century”: Miller, Participants: Tanya Hernandez, Mathilde Cohen, the limits of executive Hilary Sommerlad / Moderator: Iyiola Solanke power and the constitutional force of EU law Participants: Jeff King, Timothy Endicott, Gavin p. 40 10 Comparative Constitutional Phillipson, Stephanie Palmer / Moderator: Gráinne Law and Cross Border de Búrca Constitutionalism Participants: Eduardo Moreira, Luis Claudio Araujo, Marcio Pugliesi, Guilherme Pena de Moraes / p. 32 3 Economic Justice Moderator: Eduardo Moreira Participants: Tarunabh Khaitan, Katie Young, Rosalind Dixon and Julie Suk / Moderator: Rosalind Dixon and Richard Holden p. 41 11 Competition law as public law private, power, and courts p. 33 4 Courts and the World Participants: Elias Deutscher, Maria-José Schmidt- Participants: Paul Craig, Oliver Lepsius, Kessen, Stavros Makris, Maria Ioannidou / Lorne Sossin, Peter Strauss / Moderator: Anne Peters Moderator: Ioannis Lianos

p. 34 5 Beyond Balancing: p. 43 12 Complying, Creating and Assessing Alternative Con­testing: The Multiple Approaches in Judicial Roles of Domestic Courts Proportionality Review in the Inter-American Participants: Janneke Gerards, Ingrid Leijten, and European Human Jochen von Bernstorff, Aaron Baker, Moshe Cohen- Rights Systems Eliya / Moderator: Aaron Baker Participants: Raffaela Kunz, Leiry Cornejo Chavez, Yota Negishi, Jorge Contesse / Moderator: Antoine Buyse p. 36 6 Comparative Federalism: Constitutional Arrange- ments and Case Law – p. 44 13 Courts and Democracies Book Discussion in Comparative Perspectives Participants: Francesco Palermo, Karl Kössler, Eva Participants: Po-Jen Yap, Swati Jhaveri, Sam Maria Belser, James Gardner, Patricia Popelier, Nico Issacharoff, Stephen Gardbaum / Moderator: Po- Steytler / Moderator: Marco Dani Jen Yap

Concurring panels 13 p. 45 14 Courts Politics & Policies p. 59 22 Destructive or integrative? p. 68 28 Fiduciary Constitutionalism p. 79 34 Constitutional review on Participants: Adriana Ciancio, Marco Pacini, Conflict management Participants: Joshua Segev, Bas Schotel, the grounds of fundamen- Ilaria Ottaviano, Leonardo Parona, Andrea Magliari / by courts during the Euro- Eljalill Tauschinsky, Ester Herlin-Karnell / Moderator: tal rights and the rule of Moderator: Elisa D’Alterio and Gianluca Sgueo zone crisis Joshua Segev law in the Member States Participants: Jenny Preunkert, Cristina Fasone, and in the EU legal order Tomás de la Quadra-Salcedo Janini, Teresa Participants: Anneli Albi, Mariana Rodrigues p. 48 15 Court’s Unpopular Author- Violante, Anuscheh Farahat and Christoph Krenn / p. 70 29 Gender, Courts and Canotilho and Rui Lanceiro, Aida Torres Pérez, ity and Democratic Account- Moderator: Marius Hildebrand Constitutions Dimitry Kochenov / Moderator: Christian Joerges ability: a Story of Two Tales Participants: Silvia Suteu, Beverley Baines, Barbara Participants: Suzannah Linton, Donna Greschner, Havelková, Elena Brodeală / Moderator: Ruth Rubio Benedetta Barbisan, Pablo Riberi / Moderator: p. 61 23 DIALOGUE BEYOND LITIGATION: Marín p. 81 35 Dialogues between courts: Pablo Riberi A CONTEXTUAL APPROACH human rights constitu­ TO CONSTITUTIONAL INTER­ tionalism PRETATION p. 72 30 Human rights and the Participants: Melina Girardi Fachin, Vera Karam de p. 49 16 Is populist constitutional- Participants: Gabrielle Appleby and Anna Olijnyk, rule of law in the field of Chueiri, Estefania M. de Queiroz Barboza, Rodrigo ism the new trend? Grant Hoole, Mary Liston, Jack Simson Caird / asylum and immigration Kanayama, Tomio Fabrício, Angela Costaldello and Participants: Paul Blokker, Bojan Bugaric, Mark Moderator: Scott Stephenson Participants: Violeta Moreno-Lax, Cliodhna Murphy, Ilton Robl Filho, Maria Francisca Miranda Coutinho / Tushnet, Kim Lane Scheppele, Tom Ginsburg, Patricia Brazil / Moderator: David Fennelly Moderator: Melina Girardi Fachin and Vera Karam Michael Wilkinson / Moderator: Paul Blokker and de Chueiri Bojan Bugaric p. 63 24 The Regionalization of International Criminal p. 73 31 Images of judicial self- Justice: Regional Power governance. Normative p. 82 36 Conceptual and inter­ p. 50 17 Courts and Constitutional- Balances and the Transfor- justifications and socio- pretive aspects of consti- ism in Contemporary Asia mation of an International political roots tutional change Participants: Melissa Crouch, David Law and Field of Law Participants: Simone Benvenuti, Nino Tsereteli, Participants: George Karavokyris, Juliano Zaiden Wen-Chen Chang, Jothie Rajah, Khemthong Participants: Mikkel Jarle Christensen and Astrid Giulia Aravantinou Leonidi, Jørn Øyrehagen Sunde / Benvindo, Craig Martin, Nadiv Mordechay / Tonsakulrungruang and Bjoern Dressel, Bjoern Kjeldgaard-Pedersen, Nandor Knust, Gleb Bogush / Moderator: Davide Paris Moderator: Yvonne Tew Dressel, Sarah Bishop / Moderator: Melissa Crouch Moderator: Mikkel Jarle Christensen

Panel session II p. 84 37 Constitutional Change p. 53 18 Courts as Instigators of p. 64 25 Ernst-Wolfgang Böcken- thursday, 6 july 2017 in Latin America and Constitutional Change förde’s constitutional 09:00 – 10:30 the Caribbean Participants: Rebecca Ananian-Welsh, Dana thought in comparative Participants: Richard Albert, Mariana Velasco Burchardt, Miles Jackson, Caitlin Goss / Moderator: perspective: can it provide Rivera, Diego Andrés González Medina, Joel Thomas John the basis for a European p. 77 32 Building the Constitution – Colón-Ríos, Magdalena Correa Henao / Moderator: public law? The practice of constitu- Vicente Fabian Benitez-Rojas Participants: Tine Stein and Mirjam Künkler, Sabino tional interpretation in p. 54 19 Courts during post- Cassese, Alexander Somek, Michaela Hailbronner, post-apartheid South Africa conflict transitions Kai Möller / Moderator: Mirjam Künkler – Book Discussion p. 85 38 Constitutional courts re- Participants: Asli Ozcelik Olcay, Emmanuel De Participants: Mark Tushnet, Niels Petersen, Or sisting, shaping and devel- Groof, Luis Viveros Montoya / Moderator: Ebrahim Bassok, James Fowkes / Moderator: Jaclyn L. Neo oping public law of Europe Afsah p. 65 26 The Continuous Authority Participants: Jan Komarek, Marco Dani, Mattias of International Lawyers Wendel, Nik de Boer and Christophe Majastre / in Modern International p. 77 33 Beyond “Dialogue” and Moderator: Michaela Hailbronner p. 55 20 Courts facing constitu- Politics. The “International- the Legal/Political tional gaps. Rights as a Law Polity” Hypothesis Consti­tutional Debate: tool to detect institutional Participants: Mikael Rask Madsen, Antoine Towards Collaborative p. 87 39 Constitutional Rights and accountability Vauchez, Karen J. Alter, Jan Klabbers / Moderator: Constitutionalism? the Criminal Procedure Participants: Mario Iannella, Francisco Javier Mikael Rask Madsen Participants: Jeff King, Eoin Carolan, Gavin Participants: Rinat Kitai-Sangero, Boaz Sangero, Romero Caro, Maja Sahadžić, Giovanna Spanó, Phillipson / Moderator: Stephen Gardbaum Roni Rosenberg, Michal Tamir / Moderator: Michal Mimma Rospi / Moderator: Paolo Passaglia Tamir p. 67 27 Exploring the potential of horizontal judicial dialogue: p. 58 21 Defending the Rule of Law – sectorial case studies Efforts to Assess the Qual- in private and public law ity of Justice Participants: Karolina Podstawa, Madalina Moraru, Participants: Matyas Bencze, Elena Alina Ontanu, Nicole Lazzerini, Federica Casarosa, Elena Petra Pekkanen / Moderator: Petra Pekkanen Carpanelli / Moderator: Deirdre Curtin

Concurring panels 14 Concurring panels 15 p. 88 40 Constitutional Rights in p. 98 47 Institutional Dialogue: p. 109 55 International Settlement p. 118 61 National Security: The the Policy Making Domain: Courts and Parliaments Bodies and Judges: Power of Courts to Shape Normative and Empirical Participants: Sarah Verstraelen, James Kelly, Rights, National Privileges Public Law Within and Perspectives Josephine De Jaegere, Nicola Lupo, Sarah and Law Principles. Across Borders Participants: Mordechai Kremnitzer, Talya Steiner, Lambrecht / Moderator: Patricia Popelier Looking for a balance. Participants: Jonathan Hafetz, Myriam Feinberg, Raanan Sulitzeanu-Kenan / Moderator: Mordechai Participants: Federico Caporale, Valerio Turchini, Silvia Borelli, Dimitrios Kagiaros / Moderator: Kremnitzer Andrea Averardi, Marsid Laze / Moderator: Jonathan Hafetz p. 99 48 Integrated rights in the Elisabetta Morlino practice of regional p. 89 41 Challenging Racial human rights courts p. 119 62 JUDICIAL REASONING AND Marginality in Public Participants: Eva Brems, Valeska David, Marijke De p. 111 56 Investment Court System TECHNIQUE: NAVIGATING ITS Institutions – Method Pauw, Lieselot Verdonck / Moderator: Eva Brems in Recent EU Free INS AND OUTS Participants: Terry Smith, Audrey McFarlane, Trade Agreements: Goals Participants: Mehdi Belkahla, Matina Papadaki, Gregory S. Parks / Moderator: Iyiola Solanke and Prospects Parvathi Menon, Gleider Ignacio Hernández / p. 101 49 Courts and Administrative Participants: Joanna Jemielniak and Shai Dothan, Moderator: André Delgado Casteleiro Power Güneş Ünüvar, Pawel Marcisz and Joanna p. 90 42 Courts, the rule of law Participants: Paul Craig, Giulio Napolitano, Jemielniak, Anna Aseeva / Moderator: Shai Dothan and Europe’s changing Eduardo Jordao, Alfredo Moliterni, Guy Seidman / and Joanna Jemielniak p. 121 63 J udicialisation of Human administration Moderator: Marco D’Alberti Rights Law and Policy: Participants: Deirdre Curtin, Joana Mendes, Filipe a Vehicle for Effective Brito Bastos, Michal Krajewski / Moderator: Diana- p. 112 57 Judicial Protection of Protection of Fundamental Urania Galetta p. 101 50 Between Policy-Makers Social Rights: Opportunities Rights? and Bystanders: Constitu- and Challenges Participants: Ingrid Leijten, Titia Loenen, Jan- tional Courts of the Participants: Olga Chesalina, Kyriaki Pavlidou, Tania Peter Loof, Hans-Martien ten Napel, Jerfi Uzman / p. 92 43 Courts and African former Yugoslavia and Abbiate, Andreja Bogataj, Alexandre de le Court, Moderator: Titia Loenen Federalism in a Global Democratic Transition Anastasia Poulou / Moderator: Veronica Federico Perspective Participants: Sanja Baric, Tatjana Papic, Edin Participants: Nico Steytler, Conrad Bosire Mugoya, Hodzic / Moderator: Tatjana Papic p. 121 64 Judicialization of politics Yonatan Fessha and Zemelak Ayele, Karl Kössler / p. 114 58 Institutions of the rule in (an increasingly Moderator: Francesco Palermo of law: new balance or multi­polar) Europe: Past, p. 102 51 International Courts new powers? Panel I: Present, Future and Politics Rethinking trias politica Participants: Rafal Mańko, Liviu Damsa, Sara Razai, p. 93 44 Is There a Special East- Participants: Zane Rasnača, Juha Tuovinen, Haukur Participants: Christoph Möllers, Sanne Taekema, Kirk Ewan, Catalin Gabriel Stanescu / Moderator: Central European Karlsson / Moderator: Haukur Karlsson Dimitrios Kyritsis, Lukas van den Berge, Kim Lane Liviu Damsa Constitutional Identity? – Scheppele / Moderator: Sanne Taekema and I. Country Case Studies Thomas Riesthuis Participants: David Kosar and Ladislav Vyhnánek, p. 104 52 International Courts p. 123 65 Language in International Katarína Šipulová, Tomasz Tadeusz Konczewicz, and Solidarity Courts Gabor Halmai, Vlad Perju, Paul Blokker / Moderator: Participants: Hans-Jörg Trenz, Dagmar Schiek, p. 115 59 Judging democratic and Participants: Jacqueline Mowbray, Dana Schmalz, Oreste Pollicino Helle Krunke, Achilles Skordas, Hanne Petersen / open decision-making, Mathilde Cohen / Moderator: Dana Schmalz Moderator: Helle Krunke and Ulla Neergaard citizen participation and the role of trans­ p. 95 45 Constitutional courts parency in the EU in the p. 124 66 Courts, Constitutional and constitutional adjudi- p. 105 53 International Courts at a Post-Lisbon Era Deferral & Second Consti- cation in East Asia Crossroads: Regional Inte- Participants: Maria Elena Gennusa, Stefania Ninatti, tutional “Transitions” Participants: Albert H.Y. Chen, Wen-Chen Chang, gration in Crisis? Antonio Tanca, Emilio De Capitani, Giulia Tiberi, Participants: Mark Graber, Hanna Lerner, Rosalind Cora Chan, Po-Jen Yap / Moderator: Po-Jen Yap Participants: Salvatore Caserta, Micha Wiebusch, Paolo Zicchittu / Moderator: Giulia Tiberi Dixon, Sam Issacharoff / Moderator: Vicki Jackson Maksim Karliuk, Pola Cebulak, Marcelo Torelly / Moderator: Pola Cebulak p. 96 46 High Courts and Executive p. 116 60 Judging social rights: The Power in Latin America: role of judicial review in an Ambivalent Relationship p. 107 54 Women and Courts: shaping and protecting Participants: Sabrina Ragone, Gonzalo Ramírez Empirical Background for social rights – domestic Cleves, Sergio Verdugo, Juan Manuel Mecinas Theoretical Thinking court practice in context Montiel, Juliano Zaiden Benvindo, Diego Werneck Participants: Rosemary Hunter, Stéphanie Participants: Michal Kramer, Hà Lê Phan, Bruck Arguelhes and Thomaz Pereira / Moderator: Hennette-Vauchez, Ruth Rubio Marin, Cecilia Teshome, Misha Plagis / Moderator: Michal Kramer Elizabeth Trujillo and David Landau Bailliet, Neus Torbisco-Casals / Moderator: Gráinne de Búrca

Concurring panels 16 Concurring panels 17 Panel session III thursday, 6 july 2017 p. 137 74 Legislative supremacy: p. 147 81 Mixed Constitutions p. 155 88 Procedural Review: 11:00 – 12:30 Contemporary debates Participants: Mark Tushnet, Ran Hirschl Definition, Functions Participants: Eoin Daly, Colm O’Cinneide, Fergal and Ayelet Shachar, Aslí Bâli and Hanna Lerner, Gila and Limitations Davis, Claire-Michelle Smyth / Moderator: Eoin Daly Stopler / Moderator: Moshe Cohen Eliya Participants: Leonie Huijbers, Eva Brems, Janneke p. 127 67 Power and its Consequences: Gerards, Kasey McCall-Smith / Moderator: Aileen Threats to the Authority Kavanagh and Independence of Inter- p. 139 75 Constitutionalism and p. 148 82 More than Fifty Shades national Courts and Arbitral constitutional change of Grey: The Role of Tribunals Participants: Oran Doyle, Zoran Oklopcic, Richard Courts in Peace Making Pro- p. 157 89 Criminal law, consti­ Participants: Jeffrey L. Dunoff and Mark A. Pollack, Albert, Michaela Hailbronner / Moderator: Yaniv cesses in Latin America tutional principles and Filippo Fontanelli, Taylor St. John / Moderator: Roznai Participants: Alfonso Palacios, Germán Lozano human rights Jeffrey L. Dunoff Villegas, Elizabeth Salmón / Moderator: Magdalena Participants: Vincent Chiao, Hamish Stewart, Correa Henao Malcolm Thorburn, Javier Wilenmann, Leora Dahan p. 140 76 Courts, Constitutions & Katz / Moderator: Vincent Chiao p. 128 68 CULTURAL HERITAGE BEFORE Democratic Hedging THE COURTS Participants: Sujit Choudhry, Tom Daly, David p. 149 83 National and European Participants: Daria Brasca, Felicia Caponigri, Anna Landau, Rosalind Dixon / Moderator: Sam Courts in search of the p. 158 90 Protecting democracies Pirri, Elena Pontelli, Lorenzo Casini / Moderator: Issacharoff rule of law principle and democratic rights: Sabino Cassese and Lorenzo Casini Participants: Alessandra Lang, Angela Di Gregorio, through courts and other Tanja Cerruti, Caterina Filippini / Moderator: Angela mechanisms p. 141 77 Lex Mercatoria Publica: Di Gregorio and Alessandra Lang Participants: Haibin Qi, Roxan Venter, Irene p. 129 69 The CJEU as a Fundamental Private-Public Arbitration Broekhuijse and Huub Spoormans / Moderator: Rights Court: New Per­ as Transnational Irene Broekhuijse spectives in Light of Recent Regulatory Governance p. 150 84 New Trends in Electoral Case Law Participants: Stephan Schill, Kerem Gulay, Matters: the Role of Courts Participants: Shreya Atrey, Lilian Tsourdi, Clara Flavia Foz Mange / Moderator: Stephan Schill and and the Venice Commission p. 160 91 Religious pluralism and Rauchegger / Moderator: Bruno de Witte Bertil Emrah Oder Participants: Antonia Baraggia and Luca Pietro international human rights Vanoni, Cristina Fasone and Giovanni Piccirilli, law: The case of conscien- Pierre Garrone, Beke Zwingmann, Eszter Bodnár / tious objection p. 131 70 JUDICIAL DESIGN IN FEDERAL p. 143 78 Margin of appreciation Moderator: Pierre Garrone Participants: Fabienne Bretscher, Tania Pagotto, SYSTEMS in the jurisprudence Lisa Harms, Stefan Schlegel / Moderator: Stefan Participants: Gabrielle Appleby and Erin Delaney, of the European Court of Schlegel Gerry Baier, Thomas John, HP Lee and Richard Foo, Human Rights p. 152 85 Nordic Courts as Angela Oliveira, Catalina Smulovitz / Moderator: Participants: Catarina Santos Botelho, Benedita Constitutional Actors: Vicki Jackson Mac Crorie, Anabela Costa Leão, A. Sofia Pinto Agents of Change or p. 161 92 Judicial indepedence & the Oliveira / Moderator: Luísa Neto Reluctant Participants? Indonesian Constitutional Participants: Helle Krunke, Benedikte Moltumyr Court p. 133 71 The Public’s Different Faces Høgberg, Anna Jonsson Cornell, Tuomas Ojanen, Participants: Fritz Edward Siregar, Feri Amsari, Participants: Shai Dothan, Ida Koivisto, Or p. 144 79 Is There a Special East- Ragnhildur Helgadóttir / Moderator: Janne Donal Fariz, Iwan Satriawan, Luthfi Widagdo Eddyono, Bassok, Dmitry Kurnosov/Moderator: Achilles Skordas Central European Salminen Veri Junaedi / Moderator: Fritz Edward Siregar Constitutional Identity? – II. Comparative and p. 134 72 Radical democracy and European Aspects p. 153 86 On authority: the politics p. 163 93 Institutions of the rule constitutionalism or Participants: Bojan Bugaric, Andras Sajo, Armin of the West of law: new balance or new political action and judi- von Bogdandy, Kim Lane Scheppele, Signe Participants: Alexander Somek, Hauke Brunckhorst, powers? Panel II: Trans­ cial action: how far can Rehling Larsen and Michael A. Wilkinson, Federico Jonathan White, Octaviano Padovese / Moderator: national balance of powers one go? Fabbrini / Moderator: Oreste Pollicino Iderpaulo Carvalho Participants: Ingo Venzke and Joana Mendes, Participants: Vera Karam de Chueiri, Melina Lando Kirchmair, Thomas Riesthuis, Cormac Mac Girardi Fachin, Maria Francisca Miranda Coutinho / Amhlaigh, Jan Klabbers / Moderator: Thomas Moderator: Vera Karam de Chueiri p. 145 80 Democracy and the Riesthuis and Sanne Taekema Role of Constitutional p. 154 87 Outsourcing Dispute Courts in Asia Resolution? Expectation p. 135 73 Judicial control over state Participants: Jiewuh Song, Yoon Jin Shin, Amnart versus Reality p. 164 94 National constitutional emergency regimes Tangkiriphimarn, Swati Jhaveri / Moderator: Jiewuh Participants: Ana Koprivica, Stephanie Law, Martina courts and European Participants: Francesco Natoli, Balthazar Durand Song Mantovani / Moderator: Stephanie Law integration Nicolas Klausser, Jean-Philippe Foegle, Jessie Participants: Marco Dani, Sabine Mair and Elias Blackbourn / Moderator: Stéphanie Hennette- Deutscher, Jan Komárek / Moderator: Christoph Vauchez Möllers

Concurring panels 18 Concurring panels 19 Panel session IV p. 165 95 Rights, Security and the thursday, 6 july 2017 p. 186 108 The Judiciary: From p. 197 115 The role of courts and Policy Process: The Con- 16:00 – 17:30 Empire to Post-Colonial (il)liberal democracy sideration of Rights in the Constructs Participants: Tímea Drinóczi, Agnieszka Bień- Development of Counter- Participants: Binyamin Blum, Mathilde Cohen, Erin Kacała, Tomasz Milej, Maciej Serowaniec, Fabio Terrorism Policy p. 179 102 Where Our Protection Lies: Delaney, Tanya Hernandez / Moderator: David Law Ratto Trabucco / Moderator: Tímea Drinóczi Participants: Andrej Lang, Fiona de Londras, Lila Constitutional Review Margalit, Mattias Kumm, Rebecca Ananian-Welsh / and Separation of Powers – Moderator: Andrej Lang BOOK DISCUSSION p. 187 109 Mechanisms for selecting p. 199 116 THE ROLE OF INTERNATIONAL Participants: Dimitrios Kyritsis, Mattias Kumm, supreme court judges AND NATIONAL JUDGES IN Stephen Gardbaum, Kai Moller / Moderator: Participants: Mark Tushnet, Micaela Alterio and DEVELOPING INTER-SYSTEMIC p. 166 96 Science and Law before Dimitrios Kyritsis Roberto Niembro, Camilo Saavedra / Moderator: LINKAGES the Courts. A comparative Rafael Rubio Participants: Pasquale De Sena, Luca Pasquet, overview. Edoardo Stoppioni, Lorenzo Gradoni, Laurence Participants: Lucia Busatta and Marta Tomasi, p. 179 103 THE FUTURE OF Inter­ Burgorgue Larsen, Remy Jorritsma / Moderator: Simone Penasa and Elisabetta Pulice, Giada national Law and Interna- p. 188 110 Law and Cities Andres Delgado Casteleiro Ragone, Andrea Rovagnati, Benedetta Vimercati, tional Organizations Participants: Anél du Plessis, Michéle Lorenza Violini / Moderator: Lorenza Violini Participants: Michael B. Krakat, Rishi Gulati, Eyal Finck, Malcolm MacLaren, Josephine van Zeben / Benvenisti and Agon Sivan Shlomo, Anne van Moderator: Janne Nijman p. 200 117 Courts Administrative Aaken, Oleksandr Vodiannikov / Moderator: Anne Discretion and Regulatory p. 168 97 Searching for the constitu- van Aaken Agencies tional identity within EU: be- p. 190 111 Law and… Everything: Participants: Mariana Mota Prado, Joana Mendes, yond Courts’ interpretation Interdisciplinary Perspec- Giulio Napolitano / Moderator: Mariana Mota Prado Participants: Tímea Drinóczi, Giacomo Delledonne, p. 181 104 Book Roundtable: tives on Courts Pietro Faraguna, Marco Bassini, Neliana Rodean / A Discussion on “Unconsti­ Participants: Bosko Tripkovic, Sabine Mair, Jan Moderator: Neliana Rodean tutional Constitutional Zglinski / Moderator: Urška Šadl p. 201 118 THE QUEST FOR FREEDOM(S) Amendments” Participants: Jihye Kim, Francesco Participants: Richard Albert, Joel Colon-Rios, Clementi, Martin Kopa, Jack Tsen-Ta Lee, Eliska p. 170 98 Solar Panel: National Adju- Rosalind Dixon, Gary Jacobsohn, Yaniv Roznai, Kim p. 191 112 The “Status” of Social Pirkova, Oleg Soldatov / Moderator: Francesco dication and Transnational Lane Scheppele / Moderator: Richard Albert Rights Protection in Clementi Soft Law: Judges in a Europe: Perspectives and non-binding environment Challenges Participants: Emilia Korkea-aho and Mariolina p. 181 105 Judicalization of Politics Participants: Antonia Baraggia, Anastasia Poulou, p. 203 119 BUILDING THE PEACE Eliantonio, Kathryn Wright, Napoleon Xanthoulis, in Illiberal Democracies: Colm O’Cinneide, Zane Rasnača, Michael Participants: Britta Sjoestedt, Jenna Zlatina Georgieva / Moderator: Emilia Korkea-aho Effects and Challenges Ioannidis / Moderator: Bruno De Witte Sapiano, Cindy Wittke, Huub Spoormans and and Mariolina Eliantonio Participants: Denis Galligan, Daniel Smilov, Judit Irene Broekhuijse, Radek Pisa / Moderator: Jenna Sandór, Violeta Beširević / Moderator: András Sajó Sapiano p. 192 113 THE CHANGING NATURE O p. 172 99 Specialist Patent Courts: THE PUBLIC ADMINISTRATION: Constitutional and Com­ p. 183 106 Constitutional Politics WHAT ROLE FOR JUDICIAL p. 204 120 THE LAW OF CONSTITUTION(S) parative Perspectives and Comparative Institu- REVIEW? Participants: Ori Aronson, Paul Blokker, Participants: Aurora Plomer, Tuomas Mylly, Rochelle tional Design Participants: Cedric Jenart, Sabrina Wirtz, Eoin Carolan, Friederike Eggert, Gert Jan Geertjes / Dreyfuss, Xavier Seuba, Dhanay Cadillo Chandler / Participants: Thomaz Pereira, Jaclyn L. Neo, Diego Steven Van Garsse and Yseult Marique, Mariolina Moderator: Paul Blokker Moderator: Athanasios Psygkas Werneck Arguelhes, James Fowkes / Moderator: Eliantonio, Javier Barnes and Alicia Isabel Jaclyn L. Neo Saavedra-Bazaga, Carlo Colombo / Moderator: Carlo Colombo and Mariolina Eliantonio p. 206 121 CROSSING BORDERS: p. 174 100 Trust and European MIGRATION AND LAND-USE Judicial Governance p. 184 107 From Dialogue to Defiance: CONFLICTS Participants: Vigjilenca Abazi, Monica Claes, Juan A. Exploring the limits of p. 195 114 The Role of “External” Participants: Pratyush Kumar, Andreas Hofmann, Mayoral, Zuzanna Godzimirska/Moderator: Urška Šadl constitutional courts’ Normative Sources and David Moya, Satvinder Juss, Mario Savino, Ralph challenges to EU law Perspectives in Safe­ Wilde / Moderator: David Abraham Participants: Davide Paris, Ladislav Vhynánek, guarding Constitutional p. 176 101 The Disabling of the Angela Schwerdtfeger, Gábor Halmai, Diletta Tega / Orders constitutional courts Moderator: Marta Cartabia Participants: Paul Gragl, Thomas Poole, Stephen p. 208 122 CRIMINAL LAW AND INTERNA- and fragmentation of David Allen / Moderator: Mario Mendez TIONAL COURTS the EU legal order Participants: Narissa Ramsundar, Rosario Aitala, Participants: Jędrzej Maśnicki, Ireneusz Paweł Tamar Hostovsky Brandes and Dana Pugach, Hendrik Karolewski, Sylwia Majkowska-Szulc, Mirosław Lubbe, Enyeribe Oguh, Satwant Kaur / Moderator: Wyrzykowski / Moderator: Robert Grzeszczak Dana Pugach and Tamar Hostovsky Brandes

Concurring panels 20 Concurring panels 21 p. 210 123 THE LIMITS OF JUDGING? p. 223 131 CONSTITUTIONAL COURTS I p. 236 139 The ECTHR’s Changing p. 245 145 The institutional Participants: Ranieri Lima-Resende, Mary Participants: Nasia Hadjigeorgiou, Susana Remedial Practice – environ­ment and Rogan, Sofiya Kartalova, Antoine Duval, Mu Li, Ruiz-Tarrias, Renata Deskoska, Alina Cherviatsova, Implications for Legitimacy the communicative tools Yu-Yin Tu / Moderator: Mary Rogan Younsik Kim / Moderator: Nasia Hadjigeorgiou and Effectiveness of Supreme Court as Participants: Jan Petrov, Øyvind Stiansen, benchmarks of their Jannika Jahn, Anne-Katrin Speck, Nino Tsereteli / independence p. 212 124 Criminal law, international p. 225 132 FAMILY AND DISABILITY RIGHTS Moderator: Andreas Føllesdal Participants: Sophie Weerts, Elaine Mak, Céline law and human rights Participants: Sara Benvenuti, Sanjay Romainville / Moderator: Patricia Popelier Participants: Jakob Holtermann, Ryan Liss, Jain, Delia Ferri, Janine Silga / Moderator: Sara Francesco Vigano, Alain Zysset / Moderator: Benvenuti p. 238 140 European and national Vincent Chiao courts in the promotion of p. 246 146 The Judiciary: Views from EU policies: Judicial review Political Theory p. 226 133 Intellectual Foundations and its shortcomings Participants: Søren Stig Andersen, Julen Etxabe, p. 214 125 BANKING, INVESTMENT of International Participants: Valentina Volpe, Kostantin Peci, Massimo Fichera, Panu Minkkinen / Moderator: AND PROPERTY RIGHTS IN Organizations Law Elisabetta Morlino, Giulia Bertezzolo, Maurizia De Panu Minkkinen TIME OF CRISIS Participants: Jan Klabbers, Jochen von Bernstorff, Bellis / Moderator: Elisabetta Morlino Participants: Mario Barata, Andres Delgado Guy Fiti Sinclair, Emilia Korkea-Aho / Moderator: Casteleiro, Yehonatan Givati, Jose Gustavo Prieto Nehal Bhuta p. 248 147 The Limits of Constitution- Munoz, Maksim Usynin / Moderator: Mario Barata p. 241 141 Working Parents and al Change Free Movement: The Euro- Participants: Tarik Olcay, Zoltán Pozsár- p. 227 134 Theories of Discrimination pean Transformation Szentmiklósy, Mikolaj Barczentewicz, Yaniv Roznai, p. 215 126 CONTEMPORARY PROBLEMS Participants: Kasper Lippert-Rasmussen, of the Family Rehan Abeyratne / Moderator: Ioanna Tourkochoriti IN PUBLIC LAW Tarunabh Khaitan, Julie Suk, Reva Siegel / Participants: Julie Suk, Stéphanie Hennette- Participants: Monica Cappelletti and Lucia Moderator: Ruth Rubio Marin Vauchez, Ivana Isailovic / Moderator: Mathilde Scaffardi, Anita Blagojevic and Melina Fachin, Cohen p. 250 148 Transitional Justice and Jubran Manal Totry, Sofia Ranchordas, Octaviano Democratization: Does Padovese, Mayu Terada / Moderator: Monica p. 229 135 Human Dignity in East International Law Make a Cappelletti Asian Courts p. 242 142 The European Court of Difference? Participants: Kelley Loper, Keigo Obayashi, Jimmy Human Rights at the Grass- Participants: David Kosar, Ximena Soley, Katarína Chai-Shin Hsu / Moderator: Albert H.Y. Chen roots Level: exploring Šipulová, Antoine Buyse, Martin Krygier / Moderator: p. 217 127 CONSTITUTIONALISM AND the Court’s role in govern- David Kosar PLURALISM ing religious pluralism Participants: Rehan Abeyratne, Eugenie Merieau, Panel session V on the ground Marco Bocchi and Tommaso Soave, Patricia friday, 7 july 2017 Participants: Margarita Markoviti, Pasquale p. 252 149 THE COURT OF JUSTICE OF THE Jeronimo, Cormac Mac Amhlaigh, Flavia Piovesan / 09:00 – 10:30 Annicchino and Alberta Giorgi, Mihai Popa, Ceren EUROPEAN UNION: HISTORY Moderator: Rehan Abeyratne Ozgul / Moderator: Effie Fokas AND EVOLUTION I Participants: Magdalena Jozwiak, Judit Glavanits, p. 232 136 Courts & Weak v Strong William Phelan, Stefano Osella, Thomas Streinz / p. 218 128 DEMOCRACY AND HUMAN Judicial Review p. 244 143 The impact of individual Moderator: William Phelan RIGHTS Participants: Stephen Gardbaum, Aileen Kavanagh, complaint mechanism in Participants: Michael Pal, Fritz Edward Siregar, Rosalind Dixon / Moderator: Mark Tushnet Turkey: Recent findings on Maureen Duffy, Michael Mohallem, Deyana the Constitutional Court p. 253 150 The Role of Facts in Consti- Marcheva and Ekaterina Mihaylova, Paul Scherer / Participants: Betül Durmuş, Utku Öztürk, Levent tutional Adjudication Moderator: Michael Pal p. 233 137 Referenda, Democracy and Emre Özgüç, Sümeyye Elif Biber / Moderator: Bertil Participants: Vanessa MacDonnell, Jamal Greene, Constitutional Litigation: Emrah Oder Allison Orr Larsen, Francisca Pou Giménez, Thomaz avoiding the next Brexit Pereira / Moderator: Vanessa MacDonnell and p. 220 129 ENVIRONMENTAL LAW IN LAW through Courts? Jamal Greene AND POLITICS Participants: Michele Massa, Justin Orlando p. 244 144 The Relationship between Participants: Helga Haflidadottir, Fulvia Staiano, Frosini, Kriszta Kovács, Maya Hertig Randall, Sergio the EU Courts and Other Rowie Stolk, Patricia Galvao Ferreira, Anne Dienelt, Gerotto, Tomás de la Quandra-Salcedo Janini / Actors in Data Protection p. 255 151 Tensions between the Veronika Tomoszkova / Moderator: Anne Dienelt Moderator: Sabino Cassese and Carlo Fusaro Governance Theory and Practice Participants: Christopher Kuner, David Fennelly, Orla of Global Proportionality Lynskey / Moderator: Michele Finck Analysis p. 222 130 CONSTITUTIONAL REVIEW I p. 234 138 The Role of the CJEU in Participants: Mattias Kumm, Janneke Gerards, Alain Participants: Hannele Isola-Miettinen, Articulating Social Justice Zysset, Matthew Saul / Moderator: Matthew Saul Leopoldo Gama, Darinka Piqani, Agnieszka Participants: Leticia Díez Sánchez, Betül Kas, and Alain Zysset Frąckowiak-Adamska, Monika Polzin / Moderator: Martijn van den Brink, Irina Domurath / Moderator: Darinka Piqani Hans Micklitz

Concurring panels 22 Concurring panels 23 Panel session VI p. 256 152 You, the people: the politi- p. 265 160 CONSTITUTIONAL COURTS II friday, 7 july 2017 p. 289 175 THE JUDGE AND POWER: cal dimension of consti- Participants: Sajeda Hedaraly, Katalin 10:45 – 12:15 EMPIRICAL REVELATIONS OF tutional adjudication on Kelemen, Ladislav Vyhnánek, Joshua Segev and JUDICIAL PRACTICE electoral systems Ariel Bendor, Max Steuer and Erik Lastic, Inger- Participants: Mathilde Cohen, Gabrielle Appleby, Participants: Francesca Rosa, Jens Woelk, Ines Johanne Sand Ulas Karan / Moderator: Katalin p. 279 168 Structure of Dynamics of Suzanne Le Mire, Andrew Lynch and Brian Opeskin, Ciolli, Graziella Romeo, Francesco Palermo / Kelemen Constitutional Courts Hugh Corder and Cora Hoexter, Jula Hughes and Moderator: Gabor Halmai Participants: Niels Petersen, Max Steuer, Philip Bryden QC, Alan Paterson, Limor Zer-Gutman Maxim Tomoszek, Ángel Aday Jiménez Alemán, and Karni Perlman / Moderator: H. P. Lee p. 267 161 Legality and legitimate Dana Burchardt, Chien-Chih Lin / Moderator: p. 256 153 THE SEPARATION OF CIVIL AND authority Niels Petersen RELIGIOUS POWERS Participants: Nimer Sultany, Gordon Geoff, Nico p. 291 176 THE CHANGING LANDSCAPE Participants: Hans-Martien ten Napel, Mathew Krisch, Ayelet Berman, Fred Felix Zaumseil, Zhai OF RUSSIAN CONSTITUTIONAL John, Elena Griglio, Toon Moonen, Paolo Bonini / Xiaobo, Tania Atilano / Moderator: Nico Krisch p. 281 169 The People and Dynamics of JUSTICE: NEW ACTORS, NEW Moderator: Elena Griglio Constitutional Courts PROCEDURES, NEW PRACTICES Participants: Jerfi Uzman, David Kenny, Catherine Participants: Grigory Vaypan, Olga Podoplelova, p. 269 162 Constitutional Review II Warin, Brian Christopher Jones, Ana Cannilla, Uri Natalia Sekretaryeva, Dimitriy Mednikov / p. 258 154 INTERNATIONAL LAW AND Participants: Tom Hickey, Guilherme Pena Zilbersheid / Moderator: David Kenny Moderator: Aleksander Blankenagel INTERNATIONAL COURTS de Moraes, Eduardo Moreira, Paula Pereira, Daniel Participants: Juan A. Mayoral, Natalia Caicedo and Bogéa, Yen-tu Su / Moderator: Tom Hickey Andrea Romano, Cecilia Bailliet, Marlene Wind / p. 283 170 International Law and p. 292 177 The Transformation of Moderator: Marlene Wind Conflict Judicial Identity: p. 270 163 The European Court Participants: Matthias Goldmann, Hent Kalmo, Mechanisms and Impacts of Human Rights: Amarilla Kiss, Aeyal Gross, Marina Aksenova / of Transnational p. 259 155 CHALLENGES UNDER THE History and Evolution I Moderator: Matthias Goldmann Judicial Communication ISRAELI’S CONSTITUTION Participants: Merris Amos, Ed Bates, Jaclyn Participants: Elaine Mak, Niels Graaf, and Erin Participants: Tamar Hostovsky-Brandes, Adam Shinar, Paterson, Sergey Khorunzhiy / Moderator: Barbara Jackson, Klodian Rado, Oran Doyle / Moderator: Guy Lurie, Masri Mazen / Moderator: Adam Shinar Guastaferro and Ed Bates p. 284 171 Analyzing Amendments: Vicente Fabian Benitez-Rojas Constitutional Change, Power, and Legitimacy p. 260 156 FRAMING PROPORTIONALITY p. 271 164 The Role of Courts Participants: Richard Albert, Yaniv Roznai and Gary p. 294 178 Transformative consti­ Participants: Zdenek Cervinek, Caroline Participants: Martin Kayser, Rahel Altmann Jacobsohn, Jaclyn L. Neo, Tom Ginsburg, Marco tutionalism or dead letter? Henckels, Jimmy Chai-Shin Hsu, Anne van Aaken / and Ardian Nikolla, Amnon Reichman, Pau Bossa­ Goldoni and Michael A. Wilkinson / Moderator: The curious case of the Moderator: Anne van Aaken coma, Eszter Bodnar / Moderator: Rahel Altmann Jaclyn L. Neo Constitutional Court of Colombia Participants: David Landau, Andrés Gutiérrez, p. 261 157 A Global Dialogue with p. 272 165 The CEE Courts’ shaping p. 286 172 Inter-legality: beyond Juan C. Herrera, César Vallejo / Moderator: Víctor Constitutional Judges: of international law – conflicting legal orders Ferreres The I-CONnect 2016 the missed and lost oppor­ Participants: Mikael Rask Madsen, Jan Klabbers, Year-in-Review tunities of the trans­ Gianluigi Palombella / Moderator: Sanne Taekema Participants: Marta Cartabia, Dieter Grimm, Luc national judicial dialogue p. 295 179 Rethinking the matiére Lavrysen, Pedro Machete, Jan Zobec / Moderator: Participants: Anna Wyrozumska, Izabela pénale Richard Albert and Pietro Faraguna Skomerska-Muchowska and Anna Czaplińska, p. 286 173 Judicial Politics in Compar- Participants: Marta Cartabia, Paulo Pinto de Magda Matusiak-Frącczak, Karolina Podstawa / ative Perspective Albuquerque, Francesco Viganò, Oreste Pollicino / Moderator: Anna Wyrozumska and Tímea Drinóczi Participants: Michaela Hailbronner, Christoph Moderator: Marta Cartabia p. 262 158 International Interaction Bezemek, Bilyana Petkova, Scott Stephenson / Between Courts: Moderator: Stephen Gardbaum A Swedish Perspective p. 274 166 Data protection and p. 296 180 Varieties of Constitu­ Participants: Henrik Wenander, Tormod Otter judicial activism in Europe: tionalism Johansen, Vilhelm Persson, Joachim Åhman / mind the gap p. 288 174 Social Welfare Participants: Carissima Mathen, Nick Barber, Ioanna Moderator: Joachim Åhman Participants: Andrej Savin, Joan Barata Mir, Thomas Participants: Stefano Civitarese and Simon Tourkochoriti, Anna Fruhstorfer and Felix Petersen, Wischmeyer, Bilyana Petkova, Giulio Enea Vigevani, Halliday, Dragica Vujadinovic, Walter F. Carnota, Franciszek Strzyczkowski / Moderator: Ioanna Marco Bassini / Moderator: Oreste Pollicino Matteo De Nes / Moderator: Matteo De Nes Tourkochoriti p. 263 159 CONSTITUTIONAL INTER­ PRETATION I Participants: Emilia Justyna Powell, Christina p. 276 167 The Future of Democracy Lienen, Stefan Schlegel, Michelle Miao, Fulvio Participants: Stefanie Egidy, Miroslaw Costantino, Daniella Lock / Moderator: Christina Granat, Jakob Hohnerlein, Roxan Venter / Lienen Moderator: Stefanie Egidy

Concurring panels 24 Concurring panels 25 p. 298 181 Economic and Market p. 309 189 Legal Problems in Europe p. 321 197 The Migration of Regulation Participants: Piotr Mikuli, Arianna Angeli, Constitutional Ideas Participants: Anna Tsiftsoglou and Stylianos- Adam Czarnota, Michaic, Padziora and Michaic Participants: Danielle Ireland-Piper, Anat Scolnicov, Ioannis Koutnatzis, Eugene Schofield-Georgeson, Stambulski, Kirsty Hughes, Micaela Vitaletti / Han Liu, Luis Claudio Martins de Araujo, Luke Biancamaria Raganelli, Sofia Ranchordas / Moderator: Arianna Angeli Beck / Moderator: Danielle Ireland-Piper Moderator: Sofia Ranchordas

p. 311 190 Enforcing Cultural Rights p. 323 198 Practical Problems p. 299 182 Administrative Law and – Current Challenges of EU Law due process and Future Perspectives Participants: Giacomo Tagiuri, Sébastien Platon, Participants: Elisabeth Eneroth, Fabiana Ciavarella, Participants: Kalliopi Chainoglou, Mateusz Maarten Stremler, Marko Turudic / Moderator: Andy C. M. Chen, Giulia Mannucci, Sharath M. Bieczyński, Charlotte Woodhead, Andrzej Marko Turudic Chandran, Rebecca Ananian-Welsh / Moderator: Jakubowski / Moderator: Kalliopi Chainoglou Elisabeth Eneroth p. 324 199 The Court of Justice p. 313 191 Health and Human Rights of European Union: p. 301 183 Corruption and Official Participants: Ligia Fabris Campos, Jan History and Evolution II Disobedience Kratochvil, Fernanda Farina, Chun-Yuan Lin, Participants: Szalbot Balazs, Graham Butler, Participants: Elizabeth Acorn, Franco Peirone, Yoav Danielle Rached / Moderator: Chun-Yuan Lin Ebrahim Afsah, William Phelan / Moderator: Dotan, David Fagelson, Johannes Buchheim and Ebrahim Afsah Gilad Abiri / Moderator: Elizabeth Acorn p. 314 192 Comparing Supranational and Constitutional Courts p. 302 184 Public and Private Powers Participants: Ranieri Lima-Resende, Vanice Lirio do Participants: Eli Bukspan and Asa Kasher, Valle, Karen J. Alter, Federico Fabbrini and Miguel Kevin Crow, Nancy Marder, Dwight Newman / Maduro / Moderator: Karen J. Alter Moderator: Nancy Marder

p. 315 193 Constitutional p. 304 185 Controversies in Social Interpretations II Rights Participants: Roman Zinigrad, Jędrzej Maśnicki, Participants: Irene Sobrino Guijarro, Alba Nogueira, Evan Rosevear, Matthias Klatt / Moderator: Matthias Karen Kong, Johanna del Pilar Cortes-Nieto, Klatt Elena Pribytkova / Moderator: Johanna del Pilar Cortes-Nieto p. 316 194 Constitutional Review III Participants: Margit Cohn, Eva Maria Belser, p. 305 186 Comparing Courts and Daniel Bogea, Franciska Coleman, Dean Knight, their Constitutional Role Joáo Archegas / Moderator: Dean Knigt Participants: Allison Geduld, Kálmán Pócza, Gabor Dobos, and Attila Gyulai, Yuichiro Tsuji, Shucheng Wang, Michael Hein / Moderator: Allison Geduld p. 318 195 The European Court of Human Rights: History and Evolution II p. 307 187 Making and Breaking Participants: Marta Maroni, Marija Milenkovska, Constitution Marco Bocchi, Monika Florczak-Wator, Chris Participants: José M. Díaz ed Valdés, Neliana Rodean, Wiersma / Moderator: Marta Maroni Poonthep Sirinupong / Moderator: Neliana Rodean

p. 320 196 Federalism and the p. 308 188 Criminal Law Competences Judicial Role of the European Union: Participants: Eugene Schofield-Georgeson, A Quest for Legitimate Dominik Rennert, Catherine Powell, Oliver Fuo, Foundations Maxim Sorokin / Moderator: Eugene Schofield- Participants: Jannemieke Ouwerkerk, Irene Georgeson Wieczorek, Samuli Miettinen, Leandro Mancano, Ester Herlin-Karnell, Maria Fletcher / Moderator: Ester Herlin-Karnell

Concurring panels 26 Concurring panels 27 1 constitutional actors and a Constitution. Although a majority of legal scholars Wednesday Panel constitutional change: seems to support an exclusive reading of amendment Comparative Perspectives procedures, one could rely on a non-exclusive reading of amendment procedures and invoke the principle of 5 july 2017 session This panel will bring together scholars from diverse popular sovereignty to argue that the People have an jurisdictions to discuss some of the most cutting-edge inalienable right to alter or abolish their Constitution. 17:00 – 18:30 1 issues in constitutional change from their comparative Excluding the People from constitutional law-making perspective. Are constitutional amendment proce- might create a democratic legitimacy problem. Could dures exclusive or do the people have an inalienable the Catalonian Parliament, for example, further pur- right to alter the Constitution outside the formal pro- sue independence without the organisation of a new cess? What is the relationship between constitutional referendum? change and constitutional identity or religion, and can constitutional change be influenced by extra-textual Yvonne Tew: Stealth Theocracy: Malaysia’s Reli- means? And how does international involvement of gion Clauses and Constitutional Change international actors influence court’s involvement (and When theocracies are born, they tend to emerge activism) in shaping the constitution? Indeed what is – through constitutional revolution, not evolution. This and should be – the role of courts in major and delicate Article explores a subtler phenomenon of constitu- constitutional decisions, such as peace agreements, tional transformation involving the expansion of the which have been agreed by political actors? Bringing place of religion through less transparent means of a comparative insights and experience of the U.S., Ma- constitutional change. The Article offers an account laysia, Israel, and Colombia, this panel will shed light of this phenomenon, which I call “stealth theocracy.” on these questions. It focuses on the fundamental alteration of a consti- tutional order’s religious or secular character through Participants Jurgen Goossens informal judicial and political engagement, rather than Yvonne Tew through formal constitutional amendment or replace- Nadiv Mordechay ment. Using Malaysia as a detailed case study, this Gonzalo A. Ramírez-Cleves Article examines the elevation of Islam’s position in the David Landau constitutional sphere, which has shifted the Malaysian Moderator Yaniv Roznai state from its secular foundations to an increasingly Room 4B-2-22 religious public order. Courts have played a key part in this phenomenon. First, civil courts tend to decline jurisdiction in favor of the religious Sharia courts using Jurgen Goossens: Direct Democracy and Con- a mechanism of “jurisdictional deference.” A second stitutional Change means has been through the “judicial Islamization” of Do the People have an inalienable right to alter or the civil courts reflected in judicially expansive inter- abolish the Constitution? Scholars and policymakers pretations of Malaysia’s Islamic constitutional clause. have indicated that there is a “crisis of democracy”, Taken together, these judicial mechanisms have fueled as reflected in democratic deficits, distrust towards a profound shift in the broader Malaysian political-legal political representatives, and indifference to politi- context toward a more Islamic constitutional order. cal affairs. At the same time, however, a profound de- This Article challenges the prevailing view in the lit- bate is going on about revitalising democracy through erature of courts as secularizing bulwarks against the citizen participation and deliberative law-making. In effects of incorporating religion in constitutions. The particular, there has been a proliferation of direct story this Article tells shows the inverse phenomenon: democracy via referendums to pursue constitutional courts have served as theocratizing forces that have change. The recent wave of citizen involvement in acted to expand, not limit, the role of religion in the constitutional change will probably continue given the public order. This account of stealth theocracy also has observed dissatisfaction with traditional methods of implications for broader comparative constitutional constitutional amendment often originating from the understandings on constitutional change, constitu- rigidness of formal amendment procedures. Moreover, tional history, and constitutional identity. constitution-writing can traditionally be considered as a rather elitist and secretive process. In the US, there Nadiv Mordechay: Borrowed international le- has already been a vigorous debate about the ques- gitimacy and robust domestic judicial review: tion whether the rigid federal amendment procedure an Israeli case-study in Article V of the Constitution should be read as the This article aims to establish an international ex- exclusive way to alter the Constitution. Article V only planation for the preservation (and even expansion) involves legislatures and does not provide any form of of judicial review in Israel in 2002–2012. This period direct democracy. Nevertheless, it remains an open marks the years following the establishment of a and important question whether an amendment pro- ‘strong’ model for constitutional judicial review on civil cedure should be read as the exclusive way to alter and political rights in the “Gal” case (the Israeli “Mar-

Concurring panels 28 Concurring panels 29 bury”) on the one hand, and the increased international important role in the revision of the constitutional and 2 “The constitutional case of (27 June 2016) can be found on the website of the UK legal criticism on Israel marked by the ICJ Wall case legal reforms that made possible the peace agree- the century”: Miller, the limits Constitutional Law Blog. He is also the author of Judg- in 2004, the utilization of universal jurisdiction, the ment. The thesis that I will argue is that the active of executive power and the ing Social Rights (CUP 2012), The Doctrine of Odious ‘Goldstone Commission’ in 2009, and the shadow of role of the Constitutional Court in the revision of the constitutional force of EU law Debt in International Law (CUP 2016), and co-editor of a potential involvement of the ICC in the Israeli Pal- constitutional reforms for the implementation of the the forthcoming volumes The Cambridge Handbook of estinian conflict in 2009 and up to the present-day. agreements will be exceptional and the Court has to The Miller Article 50 case, which went to the UK Su- Deliberative Constitutionalism (CUP 2018) and Parlia- According to the suggested explanation, the role of the balance between constitutional structural principles preme Court last year, confronted fundamental ques- ment and the Law (2nd Edn) (Hart 2017) Israeli High Court of Justice (‘HCJ’) versus the inter- such as the searching of peace, the rights of the vic- tions about the limits of executive power, the character national system in generating international legitimacy tims for justice, truth, reparation and non-repetition. of EU law as national law and the role of courts in de- Timothy Endicott: Miller and the Necessity of and its importance in the contexts of the principle of termining such questions. It not only raised key ques- Constitutional Executive Power complementarity, have a (positive) effect on the degree David Landau: discussant tions around separation of powers – the interaction In the second paper, Professor Timothy Endicott of standing attributed to it by the Executive. As a result, of executive and legislative power as policed by the will address the British constitutional tradition of reallo- its ability to develop the domestic constitutional en- judiciary – but ended up hinging on a much broader cating power from the executive branch of government deavor increases. This ‘international explanation’ goes issue – the role of EU law in national constitutions or- to legislative and judicial authorities. That tradition beyond a standard domestic constitutional change ders, a role strongly contested as either transforming, has proceeded with remarkably little attention to the explanations and raises a theoretical hypothesis ac- or as tightly controlled by, the domestic order. Miller – a reasons why it can be constitutionally appropriate to cording to which, in times when the HCJ is essential case that attracted unprecedented political and media allocate powers to executive agencies. In fact, there to the Executive for its struggle with the International attention around the world – was also remarkable in has been little attention to the question of why the system, and thus “borrows legitimacy”, it will be able that it divided the public law academy more than the executive should have any power whatsoever. He will to promote the domestic constitutional venture in a judiciary. Considered a radical judgment by its critics, argue that the majority decision in the United Kingdom “robust” manner, i.e. to a greater extent than that which and as grounded in four hundred years of constitu- Supreme Court in the Miller case depends for its jus- was included in the original constitutional design, in tional orthodoxy by its supporters, the case starkly tification on the proposition that the executive branch an acquiescence of the political player. In the Israeli revealed prominent fault-lines between competing could not responsibly exercise the authority to signify case-study, it enabled the HCJ to expend its consti- visions of public power within the UK constitution that the United Kingdom’s intention to withdraw from the tutional reach in the domestic socioeconomic arena. arguably go back to the Civil War. But it was also the European Union, and that there is no such justification. The article argues that this effect exists in times of an case, more than in any other in the UK that was shaped Timothy Endicott is a Fellow in Law at Balliol College, increased international involvement but even before a by academics, over eight months of active blogging, and has been Professor of Legal Philosophy since declared threat of international intervention, and ‘in its article-writing and speaking, including in particular 2006. Professor Endicott writes on Jurisprudence shadow’. Disaggregating the interests of adversarial those on this panel. and Constitutional and Administrative Law with spe- branches within the State in situations of international cial interests in law and language and interpretation. criminal legalization can explain the puzzle of expan- Participants Jeff King He served as the Dean of the Faculty of Law for two sion of the powers of a constitutional court in times Timothy Endicott terms, from October 2007 to September 2015. He is of a decline in domestic public trust and strong and Gavin Phillipson the author of Vagueness in Law (OUP 2000) and Ad- continuous intra-branch conflict with the dominant Stephanie Palmer ministrative Law 3rd ed (OUP 2015). He was appointed political player. Maintaining the strong model of judi- Moderator Gráinne de Búrca by Universidad Carlos III de Madrid to a Cítedra de cial review is explained by the unique role of the HCJ Room 4B-2-34 Excelencia during 2016. He has been General Editor as a legitimacy generator in the international arena. of the Oxford Journal of Legal Studies since 2015. After dealing with alternative explanations, the article discusses several positive and normative implica- Jeff King: Miller: dividing scholars more than Gavin Phillipson: Miller in the Supreme Court: tions of the analysis to show that this may not be an judges how we realised (or not) how far EU law had idiosyncratic Israeli phenomenon, but rather a more In the first paper, Professor Jeff King (University changed the constitution general pattern of dynamics between Constitutional College London) will examine the background to the In the third paper, Gavin Phillipson will confront Courts and abusive Executive authorities in “fragile” Miller litigation, including the crucial role that legal criticisms of the majority judgment, arguing that doc- democracies. blogging played in the development of the arguments trinally it better reflects the role the key incorporating ultimately tested in the Divisional and Supreme Court statute “the European Communities Act 1972” gives Gonzalo A. Ramírez-Cleves: Constitutional Re- decisions. As a co-author of a blog that helped launch Parliament in relation to changes to the EU Treaties, form and Peace process in Colombia: the role of the case, he will endorse the finding but not reason- as opposed to EU legislation. More broadly, he will the constitutional Court ing of the majority of the Supreme Court and offer a contend that the much-praised minority judgment of 2016 will be remembered as the most important critique of some aspects of the dissenting judgment. Lord Reed (which draws on the view of several se- year for Colombia in the searching and consolidation He will also reflect briefly on how the affair exposes the nior public law scholars) is highly formalist narrowly- of peace. After more than 50 years of armed conflict weaknesses of the uncodified, British constitution and focused and fails to appreciate the sui generis nature the negotiation between the Government and the Farc the fragility of constitutionalism in a time of populism. and significance of EU law as a set of EU-sourced, but guerilla ended after four years of negotiations. The Jeff King is a Professor of Law at University College domesticated rights, powers and obligations. He will parties decided that the agreement must be ratified London, Co-Editor of the United Kingdom Constitu- contend that Lord Reed’s insistence on the complete by a popular plebiscite and after that will be a special tional Law Blog, Executive Member of the UK Consti- control of EU law by national law is divorced from reality reform process in order to enable a rapid mechanism tutional Law Association, Editorial Committee Member and fails to pay proper regard to the re-shaping of the to approve constitutional and legal reforms for the of the journal Public Law, and Co-Editor of the journal British constitutional order that was accomplished by implementation of the peace agreements “fast track”. Current Legal Problems. His co-authored blog ‘Pulling and during British membership of the EU. In contrast, The Colombian Constitutional Court has played a very the Article 50 Trigger: Parliament’s Indispensable Role’ he will explain how the majority’s recognition of this

Concurring panels 30 Concurring panels 31 point was crucial in their decision that the Crown’s 3 economic Justice ciple as against its contemporary, diverse, applications, 4 courts and the World residual prerogative powers could not be used to bring and as against contested notions of both the social about a change of the constitutional magnitude that Poverty and income inequality are some of the and the state. Brexit would entail. Gavin Phillipson has held a Chair greatest challenges of our time. Constitutions also Participants Paul Craig in Law at Durham University since 2007. He has pub- respond to these challenges in a variety of ways – In- Rosalind Dixon and Julie Suk: Economic In- Oliver Lepsius lished widely in the fields of public law and human cluding via the protection of a range of social rights. equality in comparative constitutional law Lorne Sossin rights in top UK Canadian and US law journals, in- This panel, however, considers other, less-noticed Income inequality is rising in democracies world- Peter Strauss cluding Modern Law Review, Cambridge LJ, Oxford ways in which constitutions address questions of wide. Many commentators also point to this trend as Moderator Anne Peters Journal of Legal Studies, Public Law, McGill LJ and economic injustice – i.e. the role of directive prin- a contributor to the rise of newly populist, anti-dem- Room 7C-2-14 Law & Contemporary Problems. His article on Miller ciples of state policy, principles enshrining a com- ocratic forms of constitutional politics. Yet despite in the November 2016 issue of Modern Law Review mitment to ‘the social state’, and constitutional com- hints of a different path, few legislatures have adopted was cited to the High Court during the hearing (day mitments to equality. socio-economic status as prohibited ground for dis- Paul Craig: Courts and the World 2) and included in the bundle for that hearing and in crimination, and even fewer constitutions expressly list Paul Craig (Oxford) will consider the ways in the bundle for the Supreme Court. It was extensively Participants Tarunabh Khaitan wealth or income as prohibited grounds. This article which UK courts make use of law from other legal cited by Lord Carnwarth in the judgment. His blogpost Katie Young explores whether this current pattern is inevitable, or systems, transnational, international and EU, when https://ukconstitutionallaw.org/2016/11/25/gavin-phil- Rosalind Dixon and whether there is a potential case for a significant ex- deciding cases in the UK. The paper will note the lipson-the-miller-case-part-1-a-response-to-some- Julie Suk pansion in the current scope of constitutional equality tension between the desire/willingness to learn and criticisms/ was read and used by counsel in preparing Moderator Rosalind Dixon and law – to embrace a distinctly economically focused draw from such diverse sources, and the desire to their arguments for the appeal and included by them Richard Holden form of constitutional equality jurisprudence. The arti- preserve the autochthony of UK law. The paper will in the court bundle. Room 7C-2-24 cle suggests that there are in fact strong arguments for also address how judicial power is perceived in the constitutionalizing a commitment to greater economic UK, more particularly the academic debate about Stephanie Palmer: Beyond Brexit: The Broader equality, even in countries with strong background judicial activism and the claim that courts are prone Implications of Miller for the UK Constitution Tarunabh Khaitan: Securing Losers’ Consent commitments to liberalism and free-markets. The to excessive activism. the Role of the Courts and International Law for India’s Constitution: The Role of Directive challenge, in realizing greater constitutional economic Obligations Principles equality in this context, is that there are certain kinds Oliver Lepsius: Courts and the World This paper argues, using India as a case study, that of individualized judicial relief that can be counter- Oliver Lepsius (Beyreuth) will speak to the ar- constitutional directives can be a useful tool for the productive to the achievement of greater economic rival of a competetion among European courts on expressive accommodation of ideological dissenters equality: In a market-based context, where private civil rights jurisprudence. Since 2009 the new EU who would otherwise lose out in constitutional ne- as well state actors are involved, court decisions that Charter of Fundamental Rights is in effect, enabling gotiations in deeply divided societies. The strategy attempt to redistribute economic resources on a case- the ECJ to decide on civil rights issues. Since 1999 of expressive accommodation was tempered in the by-case will often not only be an effective. They will be (introduction of the individual complaint) the ECHR Indian case through containment and constitutional affirmatively counter-productive. This is the key insight has extended its civil rights jurisdiction substantially. incrementalism. A calibrated expressive accommoda- of the law and economics movement and its critique of Additionally there is the jurisprudential heritage on tion of ideological dissenters can give them enough common law and equitable doctrines that seek to pro- fundamental rights of well established national con- (and genuine) hope of future victories to keep them on vide individualized, case-by-case relief to seemingly stitutional courts, the German Federal Constitutional board, without going so far that the majority rejects the deserving or needy plaintiffs. To succeed in actually Court acting as a prime example. Hence a competi- accommodation or their ideological opponents in turn promoting greater equality, therefore, a constitutional tion or even a rivalry developed between European, leave the constitutional negotiation table. By focus- economic equality guarantee will need to be enforced international and national courts in the area of fun- sing on the accommodational needs of ideological by courts in an appropriately “weak”, i.e. open-ended, damental rights. How is the overlapping jurisdiction dissenters, this paper adds to existing literature on or structural rather than “strong” or concrete and indi- to be construed and to be assessed? Will there be constitutional consensus-building techniques, which vidualized form. This approach is relatively familiar in a paramount system of fundamental rights or, rather, has largely focussed on political insurance for ethno- the enforcement of social rights guarantees, or guar- a model of competing approaches by separate ju- cultural minorities. antees of minimum economic protection. But it is less risdictions? well recognized as an approach to the enforcement of Katie Young: The Constitutional Principle of the constitutional equality guarantees. The article equal- Lorne Sossin: Courts and the World Social State ity explores ways in which a constitutional economic Lorne Sossin (Osgoode Hall, York U) will speak to The principle of the social state is reflected in many equality guaranteed could appropriately be weakened Canada’s Courts and the Possibilities and Limits of constitutions, and stands as a symbol of the divide both at the level of constitutional design and judicial Legal Pluralism. Canada’s constitutional narrative (in- between German constitutionalism (where the Sozi- doctrine. It also notes the challenges and contingency cluding English common law, French civil law, Crown- alstaatprinzip orients the state towards its protective inherent in such an approach. Indigenous treaty law, and a Charter of Rights incor- function) and Anglo-American models. There is much porating American ideals of civil liberties) has made of substance to this symbol, particularly in nesting it particularly hospitable to soil in which to cultivate a values of solidarity, human dignity, social justice and/ porous jurisprudence drawing on multiple legal sourc- or substantive equality into constitutional law. And yet, es. Canada’s strategy for success has been to adapt as the social state principle has migrated across con- foreign/international law in concert with companion stitutions in Western Europe, Eastern Europe, Latin ideas in domestic jurisprudence. In this sense, foreign/ America and Africa, and into supranational instru- international law has been integrated into Canadian ments, this neat symbolism has been complicated. law without the need to confront anxieties about sov- This paper examines the historical roots of the prin- ereignty, or a hierarchy of extra-national legal sources.

Concurring panels 32 Concurring panels 33 That said, the Courts’ aversion to incorporating foreign/ 5 Beyo nd Balancing: Assessing clear, persuasive and flawless reasoning, and in many of rights adjudications in global constitutionalism. The international law into Canadian law (absent statutory Alternative Approaches in cases balancing language does not help to do justice imposition of the judicial requirement that the govern- authority) also demonstrates the limits of Canada’s Judicial Proportionality Review to the courts’ constitutional position. If that argument ment meet a certain pre-defined probability threshold approach to legal pluralism. is accepted, the question arises as to whether there after engaging in means-ends analysis and prior to Proportionality review has become the central meth- are alternatives that courts can use to avoid the pit- engaging in balancing, serves as a useful and impor- Peter Strauss: Courts and the World odology to organize judicial reasoning in human rights falls of balancing review. This paper claims that there tant deontological constraint that secures the priority Peter Strauss, drawing on Justice Breyer’s recent adjudication. The metaphor and practice of balanc- are – at least to a certain degree. It will base this claim of rights. Professor Aaron Baker (Durham Law School, book on this theme, and also the changes that might ing interests – as the decisive step of the test – plays on a tour d’horizon of the potential of three methods United Kingdom) will act as discussant for this paper. be anticipated in decisions by federal courts whose a core role in the increasingly globalized practice of or instruments of judicial argumentation that can be make-up will be influenced by the presidency of Don- proportionality review. Judicial “ad hoc” balancing has used to decide in fundamental rights cases: analogical Aaron Baker: Can balancing be tamed? ald Trump, will consider some of the ways in which at the same time attracted fierce criticism as political reasoning, categorisation, and instrumentality review. Balancing in human rights and fundamental rights American courts may make use of law from other legal arbitrary and unpredictable. This panel will challenge Professor Dr Christoph Möllers (Humboldt University cases has rightly attracted criticism, but responding systems – national, transnational, and international – in the primacy of balancing approaches and investigate Germany) will act as discussant to this paper. to that criticism could require more emphasis on bal- their decisions. In the US as in the UK and elsewhere, improvements and alternatives to ad hoc balancing. ancing, not less. The dominant criticism suggests that there is a tension between a desire/willingness to Examples from various constitutional systems dem- Ingrid Leijten: Core rights review as an alterna- balancing requires judges to weigh often incommen- learn and draw from diverse sources, and a desire onstrate that ad hoc balancing is avoidable and that tive to balancing surable interests without any predictable or transpar- to preserve the independent character of American alternative methodologies can work. US and Israeli The potential of core rights protection as form of ent formula, which results in them making value judg- law, associated not only with sovereignty, but also its courts have used “probability tests” or “intervention- judicial reasoning is largely underestimated. World- ments on matters which might (it is argued) be better written Constitution. The more conservative voices on thresholds” in place of ad hoc balancing; the German wide ‘balancing’ has become the way for courts to deal decided by legislatures. In practice, almost certainly the Supreme Court, as Justice Breyer’s book makes Constitutional Court famously applies “absolute limita- with conflicts between individual rights and general with some of these concerns in mind, judges in the UK clear, have been particularly resistant to learning from/ tions” to contain the scope of ad hoc balancing. Courts rules and policies. In turn ‘core rights protection’ is and elsewhere resist the full implications of balancing, reliance on foreign law, and fearful of treaty obligations elsewhere have used “analogous interpretation”, “core seen as inflexible and ill-suited to the legitimate role and look for reasons to exclude it in some cases and (e.g. the North American Free Trade Agreement) that rights review”, “instrumentality review”, “categorization” of courts amidst different powers. Yet as the criticism keep it vague and “broad-brush” in others. Meanwhile, may appear both to surrender elements of national and others. These alternatives can constrain balancing directed at balancing – i.e. that it is subjective and too this panel explores alternatives to balancing, which will sovereignty and to expand the domain of federal, as or can completely replace the proportionality frame- ad hoc – cannot easily be countered completely, it is allow courts to define the limits of state intrusions on distinct from state, legal authority beyond the legis- work. The panel will break new ground exploring these worth having a closer look at core rights reasoning rights with confidence, using clear tests to produce lative powers the Constitution confers on Congress. options setting three cases for alternatives against and the way in which it can form an alternative or at foreseeable results. Such alternatives might offer the one argument for saving balancing through extensive least an addition to balancing techniques. This paper only answer, but this paper attempts the defence of reforms. will show several underdeveloped characteristics of another: do balancing better through extensive reform core rights reasoning; namely that it not necessarily of doctrine and institutional cooperation. Participants Janneke Gerards determines absolute and inflexible limits to limitations Ingrid Leijten of rights, and can also be useful for interpreting i.e. giv- Moshe Cohen-Eliya: Probability Thresholds as Jochen von Bernstorff ing prima facie content to rights norms. Core rights, as deontological constraints on balancing and Aaron Baker will be shown, may help to demarcate the fundamental proportionality Moshe Cohen-Eliya rights sphere. In this way, they illuminate the legitimate Alexy, along with other scholars who have de- Moderator Aaron Baker scope of courts’ interference with democratically le- veloped or modified his ideas, has argued that the Room 7C-2-12 gitimized policy and practice. Albeit that the content application of proportionality can answer most crit- of core rights is hard to determine, techniques can be ics simply by rendering the balancing exercise more identified to work with cores that are workable and dy- careful, complex, and scientific. This paper argues that Janneke Gerards: The problems of balancing namic at the same time. Arguably, though the promise this both overstates and understates the possibilities; review and some alternatives of core rights protection is dependent on the specific that it might be correct to say that judges can make Judicial argumentation has to be clear and per- legal context. It is submitted in this paper that a ‘core balancing better through more complex doctrine but suasive, and preferably as rational and objective as rights alternative’ is worth considering especially in the that (a) the critics hold unrealistic expectations, which possible. Reverting to rhetoric is not problematic, but context of human rights (as opposed to constitutional might not be met by suggested alternatives to balanc- lawyers are sensitive to fallacies and sophisms, and fundamental rights; a distinction often neglected in the ing, and (b) balancing could arguably come the closest judges need to understand that their natural audiences academic discussion on rights reasoning) and when it of all of the options, but only if other elements of the will recognise and reject any flaws in their reasoning. In comes to socio-economic rights protection. government embrace and support it. Incommensu- addition, in shaping their reasoning, judges have to be rability is a straw-man: it will always feature in judicial aware of the capacities and legitimacy of the different Jochen von Bernstorff: Probability Thresholds line-drawing about rights, as it does in ordinary human institutions in the democratic system, as well as of their as deontological constraints on balancing and decision-making and rendering the incommensurable own role, and they need to express that awareness in proportionality apparently commensurable must remain a core part their judgments. In ‘hard’ cases concerning funda- Effective risk management that is also respectful of what adjudication does for society. Similarly judges mental rights, this poses special challenges for courts – of human rights must take into account the probability must make value judgments when defining the con- how can they design the reasoning of their judgments that the catastrophe will strike again. Drawing from the tours of rights protection whether by differentiating in such a way as to meet the above requirements? The psychological research on the cognitive bias of “prob- the core of a right from its ambit or by distinguishing answer to be given often seems to be ‘by clarifying that ability neglect”, I call for the (re)-introduction of prob- a compelling state interest from a merely important there is a conflict of interests, and by balancing these ability tests, such as the abandoned American “clear one. We cannot render these exercises scientific or interests’. As this paper will strive to demonstrate, how- and present danger” test or the Israeli “near certainty” value-neutral. so we must aspire to the possible – to ever, using the balancing rhetoric’, seldom provides for test, and for their integration into contemporary models transparency and adherence to predictable criteria.

Concurring panels 34 Concurring panels 35 6 comparative Federalism: 7 cAN litigation save the states. It concludes that where national judges have the responsibility for their implementation, administra- Constitutional Arrangements environment? Access to justice proven receptive to arguments based in EU environ- tion, and enforcement at different levels of government, and Case Law – Book Discussion and the effectiveness of mental law, environmental interest groups can well or governance. The division of responsibility between environmental laws compensate for the Commission’s absence. the Federal authority, state governments, and non-gov- The panel explores from a comparative perspective ernment actors is perhaps the most significant distinc- what the major challenges are for federal studies from Growing concern about the underperformance of Agnes Hellner: The Rationales of Access to tion between these two systems. As the EU continues the perspective of constitutional law. The discussion’s environmental rules and obligations have led poli- Justice to gain federation-like competences, it is not surprising point of departure are the findings of the book “Com- cy-makers to emphasise an increased ‘enforceabil- For some time, environmental lawyers have ar- that responsibility for biodiversity protection has shifted parative Federalism: Constitutional Arrangements ity’ of such rules, primarily by enabling citizens and gued that the complexity of environmental problems from the states to the central authority. This respon- and Case Law” (Hart Publishing forthcoming in 2017) non-state actors to access courts. One example of requires that citizens, non-governmental organisa- sibility is also shifting from the state to the non-state which has two distinct features. First, it explores fed- such efforts is the Aarhus Convention, signed both tions, corporations and other actors all do what they actor as non-governmental organizations increasingly eral systems from the perspective of comparative by the European Union and its member states. It’s can to enhance environmental protection. To that end, enforce EU law through public interest litigation in the constitutional law and analyses how different gov- implementation has deeply affected procedural rules international law proposes that individuals and envi- Member State courts. In this way, biodiversity protection ernment levels exercise their powers and interact in for environmental litigation in Europe. This panel in- ronmental organisations shall have access to justice in the European Union is becoming more similar to that several highly topical policy fields like social welfare vestigates whether such procedural changes nec- in matters concerning the environment. But what is in the United States in that policy and decision making environmental protection or migrant integration. Sec- essarily serve environmental protection. The first access to justice? Determining the basic conditions are increasingly negotiated through adversarial legal- ond, the book incorporates in the text case law boxes paper juxtaposes centralised public enforcement that an applicant needs to fulfil to be eligible to have ism, or what Daniel Kelemen calls “Eurolegalism”. Using discussing seminal judgments from federal systems with de-centralised private enforcement to highlight her complaint heard (legal standing) and deciding what the litigation surrounding wolf protection in Sweden as worldwide in order to demonstrate the practical impact which procedures promises the greater effectiveness claims she is allowed to raise within a judicial proce- an example, I argue that the EU has consolidated or of constitutional jurisprudence on policy-makers and of environmental laws. The second paper takes a dure (the scope of the procedure) means outlining the centralized power in environmental matters through citizens alike. closer look at the concept of ‘access to justice’ as relationships between the legislature the executive decentralizing or democratizing the right to enforce employed by environmental lawyers raising the ques- and the citizen. These relationships are reflected in EU law and that the evolution of Swedish wolf policy of Participants Francesco Palermo tion whether better protection of the environment re- the reasoning of courts interpreting rules on access the past several years can be explained as part of this Karl Kössler ally is the primary intended outcome. The third paper to justice. They are guided by more than written law. movement towards European adversarial legalism and Eva Maria Belser investigates the emergence of a European form of French administrative procedural law generally allows the hollowing out of state power. To make this argument, James Gardner adversarial legalism in the environmental sector by anyone who has an interest in the act under review I compare the protection of wolves through adversarial Patricia Popelier comparing interest group litigation on biodiversity to launch a complaint. However, limitations to judicial legalism in the United States with the emerging le- Nico Steytler issues in the European Union and the United States. review reflect a fear of the return of judge-made law a galism in Sweden. I describe the impact of litigation Moderator Marco Dani By combining lawyers and political scientists, this trauma from the days of the Ancien régime. The French on the understanding and administration of several Room 7C-2-02 panel adopts a decidedly inter-disciplinary outlook interest-based approach to legal standing can be con- aspects of the species protection laws, including their on its subject matter. trasted by the German constitution and system of ad- legislative goals and how those goals are determined ministrative law which limits standing and the scope to be met, prohibitions on killing protected species, Francesco Palermo: Presentation of the book’s Participants Andreas Hofmann of procedure so as to protect individual rights, which and amendments to the lists of protected species. I findings (together with Participant 2) Agnes Hellner are at core of the 1949 Grundgesetz. In the EU, there then discuss how differences and similarities in the See panel’s description Yaffa Epstein are yet other rationales for access to justice: individu- availability of public interest litigation have impacted Moderator Andreas Hofmann als and organisations raising claims based on EU law these results. As Kelemen has highlighted, litigation by Karl Kössler: Presentation of the book’s find- Room 8A-2-17 before national courts become agents of the European individuals and groups has played an important role in ings (together with Participant 2) Commission who help ensure that EU member states promoting the effectiveness of EU law. Public interest See panel’s description respect obligations under EU law, and thereby extend litigation not only facilitates enforcement of EU envi- Andreas Hofmann: Left to interest groups? On the force of EU law. When environmental lawyers speak ronmental protection laws, but by enlisting Member Eva Maria Belser: Book Discussion the prospects for enforcing environmental law of access to justice, what do they really speak of? While State courts and empowering NGO litigants, the EU’s See panel’s description in the European Union there might be agreement on strengthening the right reach is extended beyond what its administrative and Is EU environmental law viable without the ac- of access to justice, that agreement may not extend enforcement capacity would have otherwise allowed. James Gardner: Discussant with particular con- tive promotion and enforcement of the Commission? to the reasons for doing so. In embracing access to Kelemen’s prediction that adversarial legalism would sideration of the US experience Starting from the twin observations that the Com- justice, do environmental lawyers rationalize actions continue to expand and shape the European legal See panel’s description mission has recently been accused of de-prioritising that primarily serve other interests than that of stopping terrain as it has the American has proved prescient, environmental policy, and that the Commission has environmental degradation? In my paper I describe ac- perhaps even beyond his expectations. Kelemen ar- Patricia Popelier: Discussant with particular generally retreated from extensively enforcing EU law, cess to justice in environmental matters in a way that gued that European legal cultures, institutions and consideration of the Belgian experience this paper asks whether environmental interest groups goes beyond the mere wish that a wider interpretation traditions may result in a less litigious version of adver- See panel’s description can step up to the plate where the Commission steps of access to justice would automatically guarantee sarial legalism‚“Eurolegalism”. However, the Swedish off it. The paper demonstrates that EU provisions on better protection of the environment. example indicates that entrenched legal institutions Nico Steytler: Discussant with particular con- access to justice in environmental matters are very such as limitations on standing, legal cultures resistant sideration of the South African experience favourable to interest group litigation, based on both Yaffa Epstein: Adversarial Legalism in the Euro- to litigation as a way to solve policy disputes, and cost See panel’s description the codification of the Aarhus Convention and sub- pean Union and the Conservation of a Contro- barriers, are giving way. As the cases and controversies sequent CJEU case law interpreting it. It then looks versial Carnivore over the conservation and killing of wolves in Sweden at the process by which those favourable conditions The article argues that through litigation, NGOs illustrate, the administration and enforcement of EU at the EU level can “trickle down” to provide effective assist the EU to delimit Member States’ competence law has in part been decentralized to interest groups opportunities for the de-centralised enforcement of to manage the wildlife within their borders. It compares which have so far quite successfully helped to expand environmental law “on the ground” i.e. in the member species protection laws in the EU and US, which locate the EU’s reach through litigation.

Concurring panels 36 Concurring panels 37 8 cAught in Between: How fulfill the purposes of rights guarantee, or, more broadly, 9 challenging Racial Marginality light on judges’, prosecutors’, and other legal actors’ International and Domestic adjudicate in line with the “constraints and norma- in Public Institutions – discourses on racial and ethnic diversity. I found that Courts Reconfigure Political tive commitments that are immanent in public law” Marginality in Practice these professionals deploy various strategies to dodge Contests into Legal Questions (Kingsbury EJIL 2009). or downplay the relevance of race and ethnicity to the In addressing the conference theme of courts, power judicial work. How should one understand the role of Law is politics by other means. Courts (or court-like Tamar Megiddo: The Court as an Arena: The and public law, the papers in these panel will consider racial identities when the majority of research sub- entities) both at the international and domestic level Adjudication of International Law by Domestic the production and consequences of homogeneity in jects refuse to see them as relevant to their work? This rely on institutional mechanisms, and procedures, Courts law and politics. This is not only relevant as a result paper focuses on some of the concrete obstacles to rhetorical strategies, and modes of operation that Faced with an international law case that threatens of shocking public events in 2016 such as Brexit in entry in the judiciary for blacks in particular but also for both channel and transform political conflicts into to spill over into international politics or diplomacy, a the UK and Trump in the USA. Over the last few years, Maghrebis and other French minorities, starting with legal questions that they have the standing and le- domestic court may hesitate to rule on the merits for questions such as ‘where are the Black Lawyers’ or educational barriers, all the way until judicial selection, gitimacy to address. Each of the papers in this panel reasons of institutional deference or fear of political ‘where are the Black law professors’ have been raised transfer, and promotion. aims to deepen the insight that institutions, for good backlash. It might then choose to keep the case pend- in the UK and other parts of the EU, where there are or ill, regularly operate in ways that bolster their own ing on its docket, and require the parties to engage significantly fewer black legal female or male profes- Hilary Sommerlad: Challenges for Diversity in claims to legitimacy and/or power. Each paper offers in one or more additional rounds of negotiation. The sionals – in higher education, in practice or the courts – the Legal Profession: minorities, merit, and a functional investigation into the ways in which politi- court thus gives preference to its function as an arena than in the USA. However, this issue is equally resonant misrecognition cal contests are reconfigured into fodder for adjudi- or a facilitator of engagement between the parties over beyond the nation state: Where are the Black interna- This presentation will focus on the effect that glo- cative processes, pressing questions about how the its function as an arbiter, one which is not devoid of tional lawyers? In addressing this, papers in this panel balization has had on social inequalities within large subject matter before a court is drawn and cast, how impact on the situation that gave rise to the litigation. will also consider questions such as: What is the role corporate professional firms, in England and Wales. legal procedures operate to transform the very forum of the black lawyer in public or public international law? While globalization is an imprecise term, there is of the court, and how certain practices adhered to, Rocío Lorca Ferreccio: The Transformative Ca- What are the consequences of their absence – would general agreement about its destructive impact on or seen to be adhered to, impact perceptions of the pacity of Courts: Some considerations on the Brexit or the election of Trump had happened with traditional society. Some see this as producing a range adjudicative process. At times, the reconfiguration International Criminal Court less homogeneity? The panels will seek to address of negative effects (such as psycho-social fragmenta- of political disputes via judicial institutions presents The International Criminal Court was established to this topic from multiple perspectives. tion and insecure employment). Others, however, have more as a transmutation than a mere channeling. Each fight impunity through the implementation of a global viewed it as opening up the possibility for individuals paper will examine this alchemy of adjudication from a rule of law that would supplement domestic courts Participants Tanya Hernandez to create their own biography. This is due in part to specific vantage point: in the interpretation of int’l law where those responsible for crimes against human Mathilde Cohen globalization’s “capitalization of everything” which, in in domestic courts, in the purposes attributed to the rights remained consistently beyond the reach of the Hilary Sommerlad the case of the legal profession, has transformed the ICC, and within a set of legitimacy-conferring judicial law. In practice, however, it has been vulnerable to Moderator Iyiola Solanke large law firm from a relatively parochial organization, practices. criticisms questioning its legitimacy and its capacity Room 8B-2-03 in which personal relations remained highly signifi- to fulfill the role it was meant to serve. In order to un- cant, into a multinational organization governed by Participants Emily Kidd White derstand the source of this alleged lack of legitimacy, Human Resource Management (HRM), commonly Tamar Megiddo the paper looks at the essential functions that courts Tanya Hernandez: Latino/a Perspectives on Law employing Diversity Management (DM) techniques Rocío Lorca Ferreccio serve. It argues that the punishment of crimes and Faculty Diversity and dominated by discourses of entrepreneurialism. Moderator Emily Kidd White enforcement of laws is not a court’s primary function Despite the improvements in Latino student enroll- These developments could be expected to have re- Room 8A-2-27 in the establishment or maintenance of a rule of law. ment numbers at colleges in the United States, the low sulted in significant progress toward a more socially Rather, the essential role of courts is one of transfor- level of Latino representation continues to be even representative profession. Yet statistical surveys and mation – turning violence and bare power into some- more severe at the faculty hiring level. Within the con- qualitative research suggest that gender, race, and Emily Kidd White: The Judicial Virtues and Role thing attaining to “the just.” This analysis will allow us to text of law professor hiring where the credentials of La- class remain strongly determinant of career progress Legitimacy in Public Law Adjudication take a new approach to the challenges of international tino law professors often exceed those of other faculty in the English legal profession, including in the global- One overlooked source of legitimacy for the judi- criminal justice. hired in the same period, a crisis of exclusion exists. ized corporate sector. The presentation will consider cial role comes from the idea of judicial character. On The issue of academic colonialism and inaccessibility some of the theoretical models which might explain such an account, judicial or judicial-type decisions remains a stubborn and diffuse problem justified by a the persistent salience of social categories for legal appear legitimate where judges regularly adhere, or high-demand/low-supply mythology about minorities careers. It then draws on these models in a discussion are seen to adhere, to a publicly supported cannon persists, in the face of a more-than-adequate supply. of qualitative research conducted for the U.K. Legal of judicial virtues. The legitimacy of a judicial or ad- Diversity practices and faculty hiring systems that im- Services Board (LSB). ministrative process, especially with respect to po- plicate racial exclusion will be considered. litically contentious matters, is often seen to depend, at least to a certain extent, on the degree to which Mathilde Cohen: Where Are the Black Judges In role-specific judicial virtues are upheld. This is might France? be particularly true at the international and domestic Despite the critical importance of judicial diversity administrative level where the legitimacy of the com- for litigants and the broader public, no previous study mission tribunal, or inquiry in question appears to more has examined this issue within the French judiciary. clearly draw on the character, integrity, and practices Significant practical and normative barriers exist in of its principal decision-makers. This paper will also to studying judicial diversity in France. French society begin to map how the traditional cannon of the judicial sees itself as “color-blind,” going as far as prohibit- virtues (impartiality, duty, fastidiousness, incorrupt- ing the collection and analysis of “sensitive data”-de- ibility, judicial temperament, courage) might require fined as including race and ethnicity. To bypass these revision where judges are expected either to actively hurdles, I collected original qualitative data shedding

Concurring panels 38 Concurring panels 39 10 comparative Constitutional courts provides an additional and useful instrument ferentiated position of constitutional courts as ultimate 11 competition law as public law Law and Cross Border to deal with related cases. Thus, it is undeniable the interpreters of Constitution also as arbiters of territo- private, power, and courts Constitutionalism influence of this transnational courts as an important rial and functional divisions of political power, besides theoretical reference in the different levels of judicial being top institutions of processual protection of civil While imposing checks and balances on the exercise The panel focus in new advancements and perpectives understanding, in a cross-fertilization process of ideas rights, end up requiring a greater processual freedom. of public power traditionally lies at the core of public for the application of comparative constitutional law and approaches that helps the courts to examine is- Thus, the objective was to affirm the possibilities in- law, raising concerns about the accountability and in different ways and analyses. sues from a different perspective in an interaction that herent in the very legislative activity of constitutional democratic legitimacy of private power exercised by increases the recognition of decisions taken by local justice set up on self-creative principles and proces- transnational corporations and non-state actors con- Participants Eduardo Moreira and transnational courts. Furthermore, in this transna- sual rules, together with material norms which present fronts public law with new challenges. On many occa- Luis Claudio Araujo tional process, judicial decisions are developed in light themselves as separable or immanent parts of the sions, competition law plays a primary role in regulat- Marcio Pugliesi of the international and foreign paradigm, allowing former, without failing in imposing formal and material ing the behaviour of such private, transnational players Guilherme Pena de Moraes new references for judicial interpreters in a process limits to it. The main result obtained with this research and in holding them accountable. Yet, the emphasis Moderator Eduardo Moreira that contributes for a mutual respect in the transna- made it evident that the constitutional process can put by the current academic debate on competition Room 8B-2-09 tional community with the oxygenation of ideas and take, in some circumstances, ductile, flexible nature law’s private law character, its increasing technicality paradigms used by courts. The goal of this paper is and above all be open to constitutional courts needs. and fixation on the normative goal of consumer welfare to understand the impact of cross-border constitu- The conclusion of this thesis should be addressed to obfuscate the fundamental role that competition law Eduardo Moreira: New Trends on Comparative tionalism in the legal systems, to support the rational the concrete manifestations of processual autonomy plays as public law for our democratic societies in Constitutional Law of judicial rights review, based on the transnational of constitutional justice in the field of action of con- drawing the bounds of legitimate private and public The seminar highlights the methodology and new dialogue that increases the legitimacy and respect of temporary juridical systems. power. For these reasons, we propose a panel which possibilities in comparative law field. Also explains decisions taken by local and transnational courts, in focuses on (a) how competition law addresses con- practical effects in such quotations for foreign prec- a process of reciprocity, persuasion,and acculturation cerns of legitimacy and democratic accountability of edents. The focus on international cross-borders uses in regard of similar complex cases. private power of non-state actors and (b) how public of constitutional law will bring some controversial rules law hermeneutics inform the administrative practice for use of foreign constitutional law matters and provi- Marcio Pugliesi: Theory of Law and Constitu- of competition authorities and judicial reasoning of sions and not only foreign constitutional decisions. tionalims Adjudication courts when balancing conflicting goals and rights The paper has for objective the investigation of and imposing checks-and-balances on private power. Luis Claudio Araujo: The cross-border constitu- legal norms, mainly involving matters of legitimacy tionalism. and effectiveness of Law. It works with the following Participants Elias Deutscher In the structure of a judicial decision within the question: how legal norms can be understood under Maria-José Schmidt-Kessen current globalized society it is clear that the decisions the Rule of Law? Different theories proposed a variety Stavros Makris of domestic and transnational jurisdiction are made in of models to understand legal norms, just as Frederick Maria Ioannidou a dialogue among courts around the globe. Thus it is Schauer’s contemporary legal positivism. The present Moderator Ioannis Lianos undeniable that every day judges form different courts work intends to follow a different path, searching for Room 8B-2-19 look abroad looking for new arguments to justify their different sources to understand legal norms. From own cases. Therefore the judicial decisions are not the works of John Searle, it intends to see legal norms any longer an isolated process of deliberation of local as promises. In order to reduce social conflicts to an Elias Deutscher: Nudging and the accountabil- courts. On the contrary they are part of a transnational optimum level, it is necessary to offer a promise of ity of private power process of dialogue among courts around the globe. management in accordance which comprises certain This paper analyses how EU courts and competi- Moreover the classical concept of nation-state sov- equality under the law (formal eradication of privileges). tion authorities address the issues of accountability ereignty raised from the peace of Westphalia in 1648 It is necessary to think about the production of legal and democratic legitimacy of private actors by ap- (treaties of Osnabrück and Münster), after the end texts (the constitution, for instance) by those that take plying competition law in the context of private or of the Thirty Years’ War, based on territorial integrity over, by any means, the right to do so. Beyond the semi-public regulation. More precisely, it examines and states as the primary actors in international re- mechanisms constructed by neoliberalism of conces- the recent phenomenon of nudging by private entities. lations, is taking new formats in the current interna- sions tending to establish a formal equity (like those of Relying on techniques, such as default settings, which tional agenda. With the rise of a new globalized justice, individual rights remedies and social rights) proposed steer market actors’ choices into a certain direction, based on the concept of globally-ordered world, the in legal texts in the system of power managed by the nudging by private parties carries the promise of re- concept of sovereignty is replaced by a more complex government in its different meanings – it is necessary ducing compliance and enforcement costs, enhanc- interdependent cosmopolitan society, in which the to obtain legitimacy through the systematic persecu- ing welfare and encouraging more sustainable forms idea of jurisdiction has be rewritten to endorse the tion of the promises made (by those who have the of production and consumption. Nudging by private concept of a fully integrated and harmonious intercon- power) in legal texts. parties has, therefore, been heralded as innovative, nected world. Hence, mostly in the Twentieth century, liberty-enhancing and cost-reducing alternative to the theory of sovereignty has been re-discussed in Guilherme Pena de Moraes: Processual Au- the traditional model of public command-and-control light of contemporary views about the nation-state. tonomy of Constitutional Justice: limits and regulation. Irrespective of its allegedly beneficial out- Similarly, the centered state conception of jurisdic- possibilities of the legislative activity of consti- comes, we argue in the present paper that nudging tion, based on the constraint of judicial decisions to tutional courts by private parties raises fundamental constitutional the national borders, has been analyzed by a complex This work tries to look into the processual autono- issues about the accountability, democratic legitimacy and interdependent society. Consequently, the use of my of constitutional justice, following methodological and transparency of private power, as it empowers transnational decisions brings a new standpoint to techniques of Law Science. The hypothesis of this private companies to regulate consumer and business the Judiciary branch, in which the reference to other study is that the defense of Constitution and the dif- behaviour pursuant to self-defined ‘public interest’

Concurring panels 40 Concurring panels 41 goals. In our paper, we, therefore, examine how EU demerit of the said criticisms and, after casting some 12 complying, Creating and rights courts regarding amnesty law, varying from self- courts and enforcement authorities could use com- doubt on the “paradigm shift” argument, explains how Contesting: The Multiple Roles amnesty to democratically-supported amnesty, has petition law to address these issues of accountability, commitments could contribute to legal clarity and al- of Domestic Courts in the been implemented by domestic counterparts. legitimacy and transparency of private nudging, while low antitrust intervention become responsive. Inter-American and European ensuring policy-space for an increased participation Human Rights Systems Jorge Contesse: Supraconstitutionalism and of the civil society and private entities in public inter- Maria Ioannidou: Hybrid Competition Law En- Backlash in Inter-American Human Rights Law est regulation. forcement: Antidote to legitimacy and account- At a time when international courts and tribunals are Recently two conflicting trends in inter-American ability concerns in EU competition law? more active than ever, applying and interpreting in- human rights law are surfacing. On one hand, the Inter- Maria-José Schmidt-Kessen: A fundamental With evolving social and economic realities the ternational law alongside the domestic judiciary, the American Court has increasingly adopted the stance of rights approach to the substance of EU compe- substantive goals of competition law are far from question of the relationship between domestic and a regional constitutional court, one that aims at trans- tition law? settled. They range from the economic goals of ef- international courts has become increasingly impor- forming social practices through constitutional law. On The elevation of the European Charter of Funda- ficient resource allocation and consumer welfare to a tant. How do domestic courts address and react to the other hand, some states question – directly and mental Rights to an instrument of primary EU law by diverse array of various public interest considerations. co-existing authority claims when matters also fall indirectly – the Court’s authority. This paper is an initial the Lisbon Treaty has become a constant source of Irrespective of the difference in substantive goals, they under their jurisdiction? What we have observed is effort to expose these two approaches and reflect on inspiration and support in the legal reasoning of the all restrain private power through established mecha- that domestic courts oscillate between contestation how they may reshape the contours of inter-American CJEU, even in cases squarely falling into the realm nisms of public and private enforcement depending and compliance. constitutionalism, for which I mean the interaction be- of private law. This paper analyses the potential of on the jurisdiction. This paper embarks from this tween domestic constitutional case law and regional, using fundamental rights reasoning when it comes “traditional enforcement paradigm” and argues that a Participants Raffaela Kunz human rights law. In previous work, I have examined to questions of substance in competition law cases “hybrid competition law enforcement approach”ù, and Leiry Cornejo Chavez one salient feature of the Inter-American Court’s trend before the CJEU, in particular in abuse of dominance “public redress”ù in particular, could be more effective Yota Negishi towards judicial maximalism, the conventionality con- cases where the interest of safeguarding undistorted in restraining private power and countenance various Jorge Contesse trol doctrine, first as a problematic doctrine for the competition conflicts with other (non-economic) in- legitimacy and accountability concerns. The paper first Moderator Antoine Buyse implementation of the dialogic relation among States terests. Advocate General Wathelet undertook a first untangles the traditional paradigm. It discusses the Room 8B-2-33 and the Court – an approach that the Court itself and cautious attempt in this direction in Huawei. He initi- aims of competition law enforcement and argues that many commentators fervently embrace – and later as ated the substantive inquiry into whether there was these aims should not be placed in silos of the pub- a demonstration of the inter-American human rights an abuse under Article 102 TFEU from a fundamental lic/private division. Against this backdrop, the paper Raffaela Kunz: Between Compliance and Con- system’s reluctance to adopting any mechanisms for rights perspective, identifying the right to conduct a then advances the theoretical argument for promoting testation: The Implementation of Human Rights subsidiarity – a notion that international courts should business, to property, and to access to justice being “public redress” and discusses different regulatory and Judgments Through Domestic Courts not rule out ab initio. Here I look at the Court’s influence at stake. The paper explores whether a fundamental enforcement theories to justify this remedy. In addition, In times of much increased activities of the in- on states, through the articulation of the anti-impunity rights approach could be extended to other Article 102 it offers a practical account of “public redress”ù poten- ternational human rights courts, domestic courts in doctrine as reflected in cases on states’, self-amnesty TFEU cases, which implications this would have for the tial to enhance competition law enforcement. Building Europe and the Americas are more than ever con- laws and the recent judicial pushback that the Court CJEU’s reasoning, and whether this would constitute on this decisional practice, the paper seeks to build a fronted with judgments of the ECtHR and IACtHR. It has experienced at the hands of one of its (traditional) an alternative road to the more economic approach new theoretical and practical approach to competition is widely known that domestic courts are key actors strongest allies, the Argentinean Supreme Court. generally promoted in EU competition law. law enforcement that would enhance direct participa- for the implementation of the judgments of these tion, and bring benefits to affected parties, thereby bodies. But the dual role domestic courts fulfill at Stavros Makris: Commitments and Consensual contributing to the “democratisation”of markets. the intersection of legal orders, acting as pivotal Antitrust: Shifting the Paradigm? safeguards for the effectiveness of international Under Art. 9 of Regulation 1/2003, the Commission law and gatekeepers for fundamental domestic is able to accept commitments offered by the inves- values at the same time, does not come without tigated undertakings after a preliminary assessment problems. Given the increased potential for frictions provided that these commitments meet its concerns. and the seemingly more confrontational courses Antitrust enforcers can, therefore, via commitments some courts recently took towards the ECtHR, this swiftly and effectively restore and promote competi- contribution discusses problems domestic courts tion in the market. This enforcement tool has allowed encounter when implementing judgments of both the Commission develop a proactive, learning-based ECtHR and IACtHR and the limits they set to the and consensual enforcement style that leads to flex- implementation. ible, negotiated, tailor-made remedies. However, the proliferation of commitments in conjunction with their Leiry Cornejo Chavez: The Influence of Comes- idiosyncrasies may create a tendency for privatizing tic Courts’ Rulings on the Determination of antitrust enforcement. In particular, it has been argued Reparations by Regional Human Rights Courts that commitments have triggered a paradigm shift and Treaty Bodies towards consensual antitrust. Courts are deprived of the opportunity to clarify and develop the law, while Yota Negishi: The Interaction between Human market players negotiate and tailor antitrust enforce- Rights Courts and Domestic Courts in Transi- ment with competition enforcers behind closed doors tional Justice and in the shadow of law. This consensual and more This paper studies the roles of domestic courts bureaucratic-technical turn may undermine “the strug- in the regional transitional process from dictatorship gle for law” and bring antitrust enforcement closer to or internal wars to democratic regime. It particularly regulation. The present paper evaluates the merit or shows to what extent the jurisprudence of human

Concurring panels 42 Concurring panels 43 13 courts and Democracies in majoritarianism versus a qualitative link between the 14 courts Politics & Policies of the Italian democratic system, which on occasion Comparative Perspectives candidate and the electorate? Do we wrongly conflate inspires itself to a principle of “communicating ves- democracy with elections? Should we, in fact, now The Panel “Courts Politics and Policies” aims at explor- sels” among functions (decision-making and control) This panel explores how courts around the world have restructure the latter to better protect or realise the ing the complex array of relationships between judicial instead of the more traditional principle of separation, enhanced or impeded democratization within their po- goal of broad representation of the former? This pa- bodies and the exercise of administrative and political with inevitable consequences on the running of the litical systems. In “Courts and Democracies in Asia”, Po per evaluates the courts’ role in this debate, at a time powers. The Panel includes contributions interested rule of law. Jen Yap explores the symbiotic relationship between when faith in the existing design of electoral systems in examining the triangulation between the exercise democracy and judicial power, and how they mutu- may be waning. It analyses recent judicial decisions of judicial power, political activities, and administrative Marco Pacini: The migrant crisis and the dy- ally reinforce each other. In “Re-democratization by where courts have engaged in reviewing the status tasks in a vast spectrum of areas, ranging from im- namics of public power between courts and Courts”, Swati Jhaveri examines the role that courts quo of an electoral system for its compatibility with migration and visa policy, to quasi-judiciary remedies, politics may play in unravelling aspects of popular majoritari- “thicker” democratic aspirations such as the quality electoral laws and the European Banking Union. The The migrant crisis epitomizes the dynamics im- anism in favour of ‘thicker’ conceptions of democratic of representation. Who do electoral candidates rep- Panel, proposed as part of the activities organized by plied in the exercise of public power by governments values or aspirations. Stephen Gardbaum and Samuel resent and how do we ensure their representativeness Irpa (Institute of research on public administrations), administrations and courts within the European legal Issacharoff will serve as Discussants for both papers. via elections? These thicker aspirations are found by aims at becoming a permanent panel of future ICON-S space. Until the outburst of the crisis, the European the judiciary to be implicit in the constitutional and Conferences. The goal is to foster a vibrant and stimu- immigration law displayed a trend of steady expansion Participants Po-Jen Yap legislative infrastructure of the political system. This lating debate about the many challenging questions towards ever widening recognition of migrant rights. Swati Jhaveri has been seen recently in, for example, Abhiram Singh posed by “Politics and Administration”, exploring the This largely depended on relatively small migrant Sam Issacharoff v C.D. Comachen (Dead) by Lrs & Ors (2017), where the answers from heterogenous points of view. flows and convergent long-term strategic objectives Stephen Gardbaum Supreme Court of India evaluated the need to secu- of the main institutional actors. Following the excep- Moderator Po-Jen Yap larise politics against the practice of campaigning on Participants Adriana Ciancio tional rise in migrant arrivals, such trend seemingly Room 8B-2-43 the basis of religious language or caste-based mani- Marco Pacini has come to a stop and is being supplemented or festos. A further example is the recent decision of the Ilaria Ottaviano replaced by measures aimed at strengthening frontier Constitutional Court of Italy. The Court struck down Leonardo Parona controls and promoting external relations with third Po-Jen Yap: Courts and Democracies in Asia certain legislative reforms on the basis that they un- Andrea Magliari countries of origin or transit. This has been contingent This paper explores the role that Asian courts play dermine a system of proportional representation in the Moderator Elisa D’Alterio and on a medium-term change in governments’ strategic in the democratization of their political systems and lower house of parliament. The tension in such cases Gianluca Sgueo objectives, which ended up diverging from those pur- illuminates how law and politics interact in the judicial is between a particular national democratic status quo, Room 8B-2-49 sued by courts. Thus, contrary to what Is ongoing in construction of constitutional doctrines. In dominant- which may comply with a definition of democracy and other constitutional environments (as in the US), public party democracies (e.g. Singapore, Malaysia, and thicker democratic aspirations, centring on ideas of power in Europe is highly fragmented and distributed Hong Kong), courts can only take a limited range of broad representation. This paper evaluates the courts’ Adriana Ciancio: Electoral laws judicial review across governments, administrations and courts, each actions adverse to the government’s interests before role in such contests. It looks at the possibility of le- and the principle of “Communicating Vessels” being limited by institutional constraints and pursuing the latter retaliates by deploying constitutional or un- gitimising the judicial role in this contest on the basis The hybridization path of constitutional justice structural objectives, in the context of a game of re- constitutional means to discipline the courts. While that, by revisiting aspects of an electoral system, the models – ongoing in the European continent at least ciprocal influences difficult predict and hard to govern. their courts are unable to successfully challenge the courts are able to revive faith in it so that it remains a since the end of WWII – has gained new vigor in re- core interests of their governments, they must pursue vital and functioning part of the democratic process. cent times. Evidence of this trend can be found, for Ilaria Ottaviano: The extraterritoriality in the as- “dialogic” pathways to constrain the institutional pa- instance, in the introduction of the so-called “ques- sessment of the administrative acts thologies of authoritarian politics. On the other hand, Sam Issacharoff: Discussant tion prioritaire de constitutionnalité” in France and the Traditionally, national administrative law has been in dynamic democracies (e.g. India, South Korea, and connected mitigation of the traditional “preventive” considered subject to the principle of strict territori- Taiwan), where political power regularly rotates be- Stephen Gardbaum: Discussant nature of the French system of judicial review; further ality. It is well known, however, the evolution that has tween competing political parties, courts can more examples are the reforms – actually implemented or enabled to recognize the extraterritorial effects to a successfully innovate and make systemic changes merely proposed – of the Italian system of constitu- national administrative act. In the EU system, such to the electoral system. Finally, in fragile democra- tional justice. Indeed, such reforms have pushed the result has been achieved firstly by applying the princi- cies (e.g. Thailand, Pakistan, and Bangladesh) where Italian judicial-review system from the typical sort of ples of mutual recognition (art. 49 TFUE) and freedom the military is not under the firm control of the civilian actual and ex-post review to (also) a different kind of of establishment (art. 54 TFUE). However, adminis- government and the country regularly oscillates be- abstract review. Actually, this paper starts with a brief trative law has continued to remain subject, also in tween martial law and civilian rule, their courts – unlike assessment of the preventive judicial review mecha- a supranational system, to the legality checks of its those in dominant-party democracies – tend to con- nism of electoral laws, included in the now-failed re- home State. In terms of their validity check, these acts sistently overreach. Such high-octane judicial review form proposal so-called “Renzi-Boschi”, as a missed remain strictly territorial. But in the EU system also, by partisan or imprudent judges can easily facilitate opportunity to “rationalize” the Italian Constitutional this well-established principle seems to experience or precipitate a hostile takeover by the armed forces, Court’s interventions on electoral laws. Indeed, recent- a partial evolution. One example of such evolution and lead to the demise of the rule of law. ly the Court found itself to stand in for policy-makers’ can be found in the area of visa policy and immigra- inertia, at the price of a peculiar twist of the ordinary tion, with particular reference to the Schengen system Swati Jhaveri: Re-democratization by Courts mechanism to access judicial review, as regulated pillar of the construction of the Union. The system Recent electoral outcomes have led to debate by laws 1/48 and 87/53. Such outcome, on the one allows, as well known, the free movement within the over the design of electoral systems and the mean- hand, raises legitimacy issues for the Constitutional EU without border controls, even for third-country ing of political representation. Should there be safe- judge – who lacks direct democratic legitimacy – that nationals, once a member State has authorized the guards built into an electoral system to undo or revisit are entrusted (also) to compliance with procedural entry into its territory. The system is, however, ac- “bad” majoritarian decisions? How much is political rules established by lawmakers. On the other hand, it companied by an information system consisting of representation defined by reference to quantitative provides further confirmation of the odd functioning a non-EU citizens database (Schengen Information

Concurring panels 44 Concurring panels 45 System second generation SIS) which contains alerts Leonardo Parona: Courts Politics & Policies: the esting comparative insights revealing, for instance, ity; b) the authority, vis-á-vis the “judicial risk” of being concerning third-country nationals for the purpose case of the “appeal process” within U.S. federal some elements in common with the administrative exposed to the scrutiny of the courts; c) the courts, of refusing entry or stay, issued by administrative or agencies remedies provided for within the framework of the in avoiding to deal with a potentially high number of judicial authorities, in accordance with the procedural The paper addresses the relationship between European Union. complaints. Thirdly, the paper claims that adminis- rules laid down by national legislation, adopted on the Courts, Politics and Policies within the specific context The proposed paper intends to explore the relation- trative remedies are suitable tools to strengthen the basis of an individual assessment (art. 24 Regulation of the appeal process operating in most U.S. federal ship between Courts, Politics and Policies within the accountability regime of the administration. As the in- (EC) n. 1987/2006, hereinafter ‘SIS II regulation’, or an agencies. peculiar frame of the attribution of supervisory tasks to ternational experience shows, the presence of internal overall evaluation (art. 36 Council decision 2007/533/ the European Central Bank (ECB), in the context of the independent bodies in charge of reviewing the activity JHA, hereinafter ‘SIS II decision’). These alerts can be Andrea Magliari: Challenging the European establishment of the European Banking Union. It is well of the respective institution may be seen as a tool for appealed by the person concerned before the court or Central Bank supervisory decisions: Adminis- known that the ECB has been entrusted with a wide “civilizing power” and ensuring the respect of the rule competent authority of any Member State, even dif- trative review supervisory discretion and ac- variety of supervisory tasks and powers over credit of law. This also contributes to counterbalance the low ferent from the one which had issued the alert, for the countability institutions established in the Eurozone, being able level of political legitimacy of a non-majoritarian and purpose of accessing, rectifying, cancelling, obtaining Due to the expansion of the Administrative State, to exert strong restraints to their activities and inter- independent institution. information or compensations in connection with an the increase in the number and functions of federal nal organisation by means of individual administrative alert relating to him (art. 43 par. 1 SIS II regulation; art. agencies led to the development of alternative appeal measures. Besides the technical considerations un- 59 SIS II decision). The judge hearing the case, even systems, which differ with regard to institutional de- derpinning the exercise of banking supervisory tasks, a judge of a State other than the one having issued sign, procedure and degree of independence. In con- one cannot underestimate the role played by adminis- the contested decision, could be asked to assess on trast with the traditional agency-head appeal model, trative discretion when setting up supervisory policies, a preliminary basis the regularity of the alert decision, these systems are characterized by the creation of strategies and priorities, as well as in the definition of at least in respect of the compatibility with the require- specialized quasi-judicial bodies, which are variously the day-to-day standards of supervision. Moreover, ments of the Schengen system. Such assessment linked to the agency-head, and which tend to be more besides the “technical legitimation” of the ECB, it is not it was noted, involves ‘une rupture sans precedent’ insulated from political influences. possible to forget that, in the middle of the turmoil of vis-á-vis the principles of EU law in general and of the Besides relevant distinctions and peculiarities the the crisis, precise political considerations have driven mutual recognition mechanism in particular, giving a majority of the appeal processes provided for in the the institution of the Single Supervisory Mechanism national court the power to assess the compliance U.S. share a common feature: they constitute both and the conferral of traditionally sovereign functions to of a foreign administrative act with the principles of control mechanisms at the disposal of the agency and a supranational independent authority. This, however, the Schengen information system. While as a rule the instruments of legal protection for affected parties. As raises some concerns in terms of political legitimacy judge requested considers himself not competent each of the two aspects is emphasized appeals can be of the ECB. Against this background, the proposed to assess the compliance of a foreign alert decision described either as more public interest-oriented (i.e. article analyses the administrative remedy provided by to the SIS the French Conseil d’Etat has accepted aimed at furthering public policies) or more affected the Administrative Board of Review (ABoR) of the ECB, to carry out such assessment of an alert decision interests-oriented (i.e. aimed at providing individuals as an example of quasi-judicial protection mechanism. adopted by the authority of another Member State. with effective remedies). Nevertheless although ap- The ABoR is in fact an internal body entrusted with Having regard to Article 111 of the Convention imple- peals are generally characterized by this ambiguous the task of carrying out the review of decisions taken menting the Schengen Agreement, the decision of nature several rules contained in enabling acts and by the ECB in the exercise of supervisory powers. A the Conseil d’Etat might appear daring to the extent administrative regulations make the first of the two particular attention will be given to the standard of that, in principle, courts are competent to appreciate aforementioned aspects sensibly prevalent. review, the intensity of the scrutiny, the legal effect of only the validity of acts adopted by the authorities of As a partial and last resort for citizens unsatisfied the act concluding the proceeding and its impact on their home State. And in fact the traditional position of with the result of an appeal process judicial review the contested decision and, lastly, the relationship the French Conseil d’Etat is to decline jurisdiction in in federal courts is available provided that all admin- with the judicial remedy before the European Court of respect of acts of foreign authorities or international istrative remedies have been previously exhausted. Justice (ECJ). In light of the above, a number of ele- organizations. In these cases, however, the control Still the relationship between administrative and ju- ments affecting the relationship between judicial and of the administrative court was focused on the cor- risdictional remedies is more complex. First because quasi-judicial protection, discretionary choices and rectness of the factual basis of the decisions. The the exhaustion of administrative remedies doctrine political considerations will be examined. First of all, it Conseil d’Etat has affirmed its competence to verify is subject to some exceptions which have been is argued that the physiognomy of the administrative whether the decisions adopted by foreign authorities developed by courts throughout the years. Second remedy reflects the structural and functional features could be included among the ones warranting, under because the doctrine is generally accompanied by of the administrative authority. In particular, the paper Article 96 of the Schengen Convention, a registration the administrative issues exhaustion doctrine which intends to investigate the relationship between the to SIS; therefore, the Conseil d’Etat has limited the prevents affected parties from submitting in court is- intensity of the review and the impact on the admin- scope of its assessment to cases of manifest error in sues different from those upon which the appeal has istrative activity on the one hand, and the margin of the registration. In order to avoid the denial of justice been decided. The paper develops this topic from discretion enjoyed by the authority in the exercise of for declining jurisdiction in the remaining case, it has the perspective of an affected individual challenging its administrative powers, on the other. Secondly, it is been also proposed that the French administrative the legitimacy of an agency action and enquires the observed that the introduction of trial-like administra- courts could use a method which, although excep- relationship between quasi-judicial bodies agency- tive procedures is aimed not only at granting third par- tional, is not unknown: raise the question préjudicielle heads and courts. ties a protection guarantee, but also at protecting the transnationale between counterparts judges from dif- Although the U.S. appeal system surely presents interest of the public administration in having its act ferent Member States, completing an horizontal co- specific features, which differentiate it from solu- reviewed by an internal body before ending up before operation between courts of different member States tions adopted elsewhere (especially with regard to the court. The presence of an administrative remedial where the vertical relationship would continue to exist the influence of Politics in general on the functioning tool may be seen as an important filter in the interest between them and the CJEU. of quasi-judicial bodies), it nevertheless offers inter- of: a) individuals against the decisions of the author-

Concurring panels 46 Concurring panels 47 15 court’s Unpopular Minister Stephen Harper (2006-2015) was marked 16 I s populist constitutionalism of populist constitutionalism elsewhere, including in Authority and Democratic by numerous exercises of imperious – if not abusive – the new trend? so-called established democracie, but in a more im- Accountability: a Story of Two executive power. Several of these exercises came be- plicit and less upfront manner than in a case such as Tales fore the courts. This paper will examine whether the The combination of populism and constitutionalism, a Hungary. The paper will attempt to start conceptual- Canadian judiciary was effective in limiting high-level phenomenon originally particularly related to experi- izing populist constitutionalism in a more systematic Our proposal explores some crosscutting challenges abusive exercises of executive power, what lessons ences in Latin America, is increasingly evident in some way than has be done so far. While there is some lit- of Political Power as regards the authority and respon- may be drawn for other parliamentary systems, and of the new EU member states (notably Hungary and erature emerging on the phenomenon (Mudde 2013; sibility of the Judiciary. In order to delve into the mak- what insights the experience may offer for broader Poland and perhaps also Romania). In a somewhat as- Thio 2012; Mueller 2016), a more robust and theoretical ings of judicial accountability, we want to frame our debates about judicial legitimacy and accountability. tonishing set of developments, populist constitutional- treatment of populist constitutionalism stills seems debate in terms of constitutional design and prac- ism now even threatens what were widely seen as the absent. The paper will provide a first step towards such tices. Our concern is to put forward a comparative Benedetta Barbisan: The “Unpopular” Euro- most durable, established constitutional democracies an attempt by “deconstructing” the phenomenon in outlook from different legal sensitivities and political pean Court of Human Rights: A Report from the of the Western world, that is, the United Kingdom and a number of (interrelated) dimensions: the will of the perspectives. The grammar of right protections have Unyielding Political Power in Europe the United States. The peculiar, and worrying tendency People, majoritarianism, legal resentment, and con- been modeled by experiences whose internal connec- Judicial power in Europe seems more powerful in constitutional politics and practice that populist con- stitutional instrumentalism. tions are randomly entwined by subtle comparative than ever and yet under a certain deescalation. In the stitutionalism represents, leads to significant tensions acknowledgment. Populist, liberal, democratic and/or United Kingdom, just a few months ago, the Govern- in democratic regimes grounded in fundamental val- Bojan Bugaric: Populism: A threat or a correc- republican goals are likely to bring about dilemmatic ment has pledged to scrap the Human Rights Act in ues, human rights, representative democracy and the tive for liberal democracy? constitutional arrangements ready to build up – or to favour of a more domesticated British Bill of Rights, rule of law. But the relation between populism and Western democracies are facing a surge of na- undermine – Courts’ independence. The core norma- intending to disempower the foreign European Court constitutionalism seems more complex than one that tionalist populism that represents the most serious tive elements that we would like to address, then, are of Human Rights (ECtHR) by avoiding its jurisdiction is simply reducible to the latter being undermined by challenge to the liberal international order and its core likely to be better singled out in a setting of competing on national laws. Concurrently, the Turkish President the former. The panel attempts to contribute to more constitutional form, liberal constitutional democracy. constitutional values and goals. Judicial accountability, Erdogan has announced the suspension of the Euro- robust theoretical and conceptual understandings of Capitalizing on the European sovereign debt crisis; in this context, is historically determined by a combina- pean Convention of Human Rights (ECHR), blocking constitutionalism, while comparatively reflecting on backlash against refugees streaming in from the Mid- tion of constitutional blunders and solutions. How do the ECtHR’s jurisdiction out. Already in 2015 France a variety of ‘really existing’ cases of populist consti- dle East, Brexit, victory of Trump in the US elections constitutional drafters tackle the counter-majoritarian had opted out of some of the ECHR’s guarantees dur- tutionalism. and public angst over the growing terror threat, previ- difficulty? Which are the secondary effects of an un- ing the state of emergency. How popular is still the ously fringe political parties are growing with alarming accountable Judiciary? What are the constitutional judicial power in Europe and what is its relation with Participants Paul Blokker speed. The article examines the constitutional implica- responses surveyed in diverse regions of the planet? political powers? Bojan Bugaric tions of the populist surge, situtating it in a broader the- These are the challenging questions we would like to Mark Tushnet oretical legal framework where first, different versions grapple in Copenhagen. Pablo Riberi: Unfettered Judges. Untamed Kim Lane Scheppele of populism are identified (‘varieties of populism’), and Presidents. Reckless Representatives – Pre- Tom Ginsburg second, their variegated impact on core constitutional Participants Suzannah Linton vailing traits in Latin American new reading of Michael Wilkinson structures of liberal democracy is analyzed. Following Donna Greschner separation of powers Moderator Paul Blokker and Taggart’s definition of populism (2000), I argue that Benedetta Barbisan There are lessons driven from Latin-American Bojan Bugaric populism is like a chameleon, adopting the colors of its Pablo Riberi constitutional design. Power encroaching instincts Room 8A-3-27 environment. It has no core values and a very thin ide- Moderator Pablo Riberi and non-democratic hyperboles have seldom been ology. Hence, there are several quite different versions Room 8A-3-17 deterred by normative previsions. In several coun- of populism, ranging from agrarian, political, reaction- tries, the atavistic tenet of “checks and balances” has Paul Blokker: Populist Constitutionalism in ary, authoritarian and revolutionary populism (Canovan been faltering in either oligarchic impulses or populist Europe: Anti-Constitutional or Popular-Consti- 1981). What distinguishes the current form of populism Suzannah Linton: “Guarding the Guardians” or ruling. In many polities, the interplay of the political tutional? are two characteristics: first, current populism is pre- abuse of power? Reflections on the Impeach- branches and the judiciary has come along with a Populist parties are increasingly part of European dominatly nationalist and xenophobic in its character ment of Chief Justices in the Philippines and Sri partisan hijacking of the public sphere, when not a governments and wield governing power. One particu- (exceptions Syriza in Greece Podemos in Spain) and, Lanka blatant colonization of the very idea of the common larly significant dimension of this is populists reforming second, like many older versions of populism, it is anti- Through the two case studies, this presentation will good. The lack of fair constitutional conditions for ad- domestic constitutions or even adopting a wholly new liberal but not necesarily anti-democratic. Moreover, trace three issues that appear to be critical in ensuring ministrative, legal and political accountability makes one (Hungary). Populists ordinarily claim to represent the new populism represents a novel adaptation of that when exercising punitive action against judges, a judges vulnerable targets and/or aggressive agents the ordinary people and to promote their interests. It populism using democracy as a form but skilfully erod- correct balance is achieved: due process; the pres- of authoritarian impulses. is not surprising therefore that in populist constitu- ing its substance and turning it into various forms of ervation of structural and substantive independence tionalism “the people” is a central dimension. Populist illiberal and authoritarian regimes. of the judiciary; and the maintenance of professional constitutionalism regards processes of constitution- standards on the bench. making and constitutional reform and is increasingly Mark Tushnet: Populist Constitutionalism: upfront in the constitutional developments in countries Thick and Thin Donna Greschner: Judicial Control of Abusive such as Hungary and Poland causing significant ten- As I think of it, populist constitutionalism is a prac- Primer Minister Power: Recent Canadian Expe- sions in a European Union that endorses as its fun- tice of political discourse (that is, primarily outside rience damental values democracy and the rule of law. The the context of litigation and adjudication) in which the With the 2015 election of a progressive Liberal gov- populist-constitutional phenomenon spawns debates broad statements about a nation’s fundamental con- ernment, Canada may seem immune from the ‘dem- on both democratic backsliding and illiberal democ- stitutional commitments – for example, in preambles ocratic decay’ that is eroding democratic practices racy in Europe and on the supranational monitoring of and in general provisions in bills of rights (as distinct in some European countries and beyond. However, democracy. At the same time, there are good indica- from provisions that are highly detailed) are offered to the previous Conservative Government led by Prime tions that one can also find important manifestations motivate and justify exercises of national power, and

Concurring panels 48 Concurring panels 49 to motivate and justify limitations on actions that are 17 courts and Constitutionalism ism’ in a manner that excludes China. Even if such a rather than the courts Singapore’s cultural texts – spe- concededly within the scope of government action. in Contemporary Asia move is well intentioned, it is likely to have the effect of cifically, the theatre of playwright Kuo Pau Kun – offer a That practice is, as I have put it, one that implements marginalizing the comparative study of China by con- rich and revealing record of constitutional contestation. the “thin” constitution through political discourse This panel seeks to explore the role of courts and stitutional scholars. The marginalization of China as an The constitutional jurisprudence of Singapore courts and action. There is another practice, in which “thick” how and why they do (or do not) contribute to building object of study has deleterious effects not only for the continues (overwhelmingly) to illustrate the acuity of proposals – that is, ones that are specified to some constitutionalism in contemporary Asia. The last few field of comparative constitutional law but also poten- Worthington’s 2001 assessment that the judicial sys- degree, in contrast to abstract proposals, are made decades have seen the creation of a range of new tially for the development of constitutionalism in China tem negotiates a balance between “the need for a the object of popular deliberation and decision. The and specialized courts in Asia, including constitutional itself. The goal should be to place China at the core reputable judiciary with the requirement by the po- models for this “thick populist constitutionalism” are courts. The role, function and authority of courts and of a genuinely comparative constitutional discourse litical executive for the judicial system to assist with popular referenda on specific policy proposals: gay the extent of judicial review powers varies across the rather than relegating it to the domain of China spe- the control of political opposition”. Turning therefore marriage in Ireland and California, a minaret ban in region. What is common to these courts is the poten- cialists. This can be accomplished, moreover, without away from the courts, this paper delves into the public Switzerland. The literature dealing with such referenda tial and risk of becoming deeply involved in matters of lapsing into apologism for either the Communist Party power of masked constitutional challenges through a is quite ambivalent about them, primarily because of politics. In some countries, courts have come to play of China (CPC) or the PRC regime. Part II of this paper discussion of the theatre of Singapore playwright Kuo concerns that they license the transfer into the domain a critical role in building constitutionalism, but more summarizes the competing views that scholars have Pau Kun. Detained without trial from 1976 to 1980 Kuo’s of direct public decision-making some pathologies of often in Asia courts remain peripheral to the project taken on the state of constitutionalism in China. Part scripts express the struggle to be a rights-bearing ordinary politics (such as bias and the risk that interest of building constitutionalism. This panel seeks to ex- III develops a typology that highlights the numerous citizen in the face of bureaucratic and securitized ac- and passion with dominate deliberation when voters plore and explain the role of courts in Myanmar, China, options for defining constitution[alism]. The definition counts of law; accounts that annihilate the emblematic choose). This paper does not argue in favor of either Singapore, Thailand and the Philippines. of constitution[alism] can incorporate a combination fundamental freedoms guaranteed by the Constitu- thin or thick populist constitutionalism, or both, but of normative practical and formal standards, each of tion. At the same time, the arena of theatre enables only for the proposition that they are different from Participants Melissa Crouch which in turn can be defined leniently or stringently. an engagement with publics advocacy for rights, and each other, and that one can have good reasons to David Law and The fact that scholars have available to them not just a sub-textual critique of the state that the courts might support one but not the other. Wen-Chen Chang the familiar binary choice between “thick” and “thin” not facilitate. Tracing the constitutional challenges ar- Jothie Rajah definitional approaches, but rather a rich matrix of ticulated through cultural texts – from Kuo’s theatre to Kim Lane Scheppele: The Opportunism of Con- Khemthong Tonsakulrungruang definitional possibilities, means that there are numer- more contemporary instances – this paper illuminates stitutional Populists and Bjoern Dressel ous options for placing China at the heart of compara- public power and constitutional discourses situated Constitutionalism is under attack from a new breed Bjoern Dressel tive constitutional discourse without appearing even beyond the walls of Singapore’s courtrooms. of politicians who identify with populism. But a closer Sarah Bishop implicitly to endorse its current government. Part IV analysis of these “populists” reveal that few are really Moderator Melissa Crouch explores the value to the field of comparative consti- Khemthong Tonsakulrungruang and Bjoern committed to populism in any serious sense. Instead, Room 8A-3-45 tutional law of taking China seriously as an appropriate Dressel: Who Is Doing the Judging?: the Thai these new leaders have a history and practice of op- object of study. Even though – or, perhaps, especially Constitutional Court 1998 – 2016 portunism and they have used the current popularity because – China lacks judicial review, the study of Created in 1997 as part of a major constitutional of populism to ride a wave of political discontent with Melissa Crouch: Dialogue Among Dictators and constitutionalism in China stands to benefit the field reform, Thailand’s Constitutional Court (CC) has since stagnating “politics as usual” to a position where they the Many Lives of Constitutional Courts: The in several ways. China is not only an intrinsically impor- become embroiled in major political controversies. can begin to dismantle checks on power. Populism Constitutional Tribunal of Myanmar tant case to study, but also a rich and unique source Since the 2006 coup, because a number of high- is not necessarily associated with a constitutional Myanmar is one of the most recent countries in of comparative data and experience with respect to profile decisions have favoured one political camp, program like this; therefore I tend to see opportun- the world to have established a Constitutional Tribu- three phenomena of considerable and increasing its ability to act as an independent arbiter has been ism and populism as two separate forces sweeping nal. Yet the operation of the Tribunal flies in the face importance to comparative constitutional scholars’ questioned. Observers have attributed this to close constitutional democracies these days. By peeling of assumptions common to global constitutionalism. namely, (1) the role of statutes in the constitutional or- and long-standing relations between the judiciary and back the cover of populist ideology, we can see that Myanmar at present remains outside the influence of der; (2) the availability and operation of political rather traditional political elites. Is this view justifiable? To the new breed of autocrats has a remarkable similar globalised judicial networks. Instead the Tribunal is than judicial forms of constitutional implementation answer this question, we first analyse how the court program of constitutional deconstruction. They seek determined by its role as a forum for dialogue among and enforcement; and (3) the relationship between has behaved across political administrations in 32 to concentrate all power in their hands, regardless of dictators. The operation of the Tribunal has in many domestic constitutional law and international law. Fi- high-profile cases since 2001. We then look at the the superficial ideology that swept them into power. I respects been a victim of its design and has left the nally, we conclude by theorizing as to the potential socio-biographic profile of the bench, the political na- argue that populism is simply a cover for something Tribunal’s role highly dependent on the political powers long-term impact of the Chinese Constitution on an ture of nominations, and changes to its composition, else going on – which is the destruction of constitu- of the day. I demonstrate this by looking at the differ- authoritarian regime that seems at times committed particularly since 2006. Finally, we complement this tionalism as such. ent lives of the Constitutional Tribunal: its first (2011- to constitutional noncompliance. To the list of func- analysis with network data on participants in classes 2012), second (2013-2015) and third life (2016-). As a tions that other scholars have imputed to constitutions offered by the Constitutional Court, which make it Tom Ginsburg: Trumpian Constitutionalism: A monumental shift has taken place from direct military in authoritarian regimes, we nominate an additional possible to look more closely at the links between Non-Sequitur? rule to military-led constitutionalism in Myanmar, this function – namely, that of constructive irritant. Thanks political and judicial networks in Thailand. This study article offers an important reflection on the main role to its extreme dissonance with the actual practice of found evidence of a politically biased voting pattern of the Tribunal as a limited forum for dialogue among constitutionalism, China’s formal constitution gener- and increasingly partisan nominations to the bench, Michael Wilkinson: Discussant dictators. ates a dialectical and critical discourse that is uniquely though formally appointment procedures are apoliti- difficult for the regime to suppress. cal. It thus provides evidence of the politicization of David Law and Wen-Chen Chang: Chinese Con- the court and the growing ties between judicial and stitutionalism: An Oxymoron? Jothie Rajah: Cultural Texts as Constitutional political elites. It thus raises serious issues about the This paper argues that it is a mistake – for both Courts: Perceiving Public Power in Singapore public legitimacy of the court and prospects for the the field of comparative constitutional law and the In the context of Singapore’s authoritarian politics, rule of law in Thailand – issues critical to Thailand’s development of constitutionalism in China – to define are courts the sites in which constitutional issues most continuing political transition. the core concepts of ‘constitution’ and ‘constitutional- potently and publicly unfold? This paper argues that,

Concurring panels 50 Concurring panels 51 Bjoern Dressel: The Informal Dimension of Con- military intervention. As such it will suggest that the 18 courts as Instigators of constitutional design of the relationship between EU stitutional Politics in Asia: Insights from the 2014 coup should not be seen simply as the military Constitutional Change law and the law of its Member States. Philippines and Indonesia formalizing what the court had begun or the military As expanded powers of judicial review and consti- stepping in following institutional failure, as the role Courts wield considerable power over individuals and Miles Jackson: Torture, amnesties, and positive tutional separation of powers have made courts major played by the court leading up to coup was much more institutions. The primary check on this power is that obligations under the ECHR actors in the political landscape of Asia, their uneven ambiguous than such representations suggest. their role is restricted to the interpretation and ap- This paper aims to connect three streams of schol- performance has considerably puzzled observers. This plication of duly enacted laws. Law reform is left to arship – each of which has received renewed attention article argues that a concern with formal institutional the political, democratically accountable branches of recently. The first concerns the value of amnesties in roles alone is not sufficient to explain how judiciaries government. Constitutional change in particular, with peace and transitional negotiations. The second con- deal with constitutional matters in countries not as its capacity to shift the foundations of state power cerns the so-called anti-impunity turn in international institutionalized as Western democracies. Instead, and individual rights, traditionally rests in the hands human rights law. The third concerns how rights, and to understand how courts in Asia actually operate, it of political mechanisms such as parliamentary action in particular absolute rights, are structured under the is necessary to explore the informal dimensions of or referenda. But sometimes, constitutional change European Convention on Human Rights. Its underlying judicial politics, building on a growing body of work is not merely directed or assisted but instigated by intuition is that the ECtHR’s current approach to the based on a variety of theoretical and methodological the courts. This panel considers clear, and less clear, procedural obligation to investigate and prosecute approaches. Supplementing what is already known scenarios in which superior courts have instigated violations of Article 3 ECHR (the prohibition on torture) about the informal dimension of judicial politics with change in constitutions or quasi-constitutional docu- will leave it unable to properly reason through the con- specific evidence from high courts in the Philippines ments. Drawing on case studies from different corners flicting values at stake during transitions. The absence and Indonesia, the chapter assesses how informal of the globe, the panellists reveal the reality of court of justified limitation and derogation, as well as the ties influence aspects of judicial behaviour and the initiated constitutional change and debate the difficult decreased deference that follows from the implication consequences. For justices in Asia there is a dynamic questions of democracy, legitimacy, effectivenes, and of an absolute right, underpin this claim. tension between professionalism and informality that the rule of law that arise. clarifies inconsistencies in high-profile constitutional Caitlin Goss: Certification revision and exten- matters. The findings illuminate larger issues at the Participants Rebecca Ananian-Welsh sion: courts and interim constitutions intersection of courts and society throughout the re- Dana Burchardt Dr Caitlin Goss considers how constitutional gion in ways that advance theoretical understanding. Miles Jackson courts in interim constitutional environments have Caitlin Goss contributed to constitutional change. In particular, in Sarah Bishop: Building constitutionalism? The Moderator Thomas John a number of transitions that have involved interim Role of the Thai Constitutional Court leading up Room 8B-3-03 constitutions, constitutional courts have played an to the 2014 Coup active role in approving and shaping both interim and The line dividing actions of courts seen as contrib- permanent constitutional texts, and the broader con- uting to building constitutionalism and those seen as Rebecca Ananian-Welsh: Interpretation, Insti- stitutional law of the states they govern. This analysis undermining constitutionalism is often narrow, and gation, Invention: The Australian High Court on draws upon the jurisprudence of a number of consti- defined not only by factors internal to courts but also Human Rights tutional courts operating in interim periods, including factors external to courts, including the way that ac- Dr Rebecca Ananian-Welsh looks to Australia, those of South Africa, Albania, and Nepal. tions of courts are responded to. The role of the Thai where the absence of a national Bill or Charter of Constitutional Court in the lead up to the 2014 military rights has given rise to a vibrant and controversial coup is often seen to have been one that undermined implied rights jurisprudence. Much of this jurispru- constitutionalism, with some commentators going so dence amounts to constitutional reform through inter- far as to suggest that the court in the period was act- pretation. However, the kinds of cases brought before ing in concert with the military and traditional elite and the Court and the manner in which they are argued, that the military coup in May 2014 only formalized a reflects that the Court faces consistent pressure to in- judicial coup which had already occurred. This paper, stigate constitutional change – thereby deriving robust by analysing decisions issued by the Constitutional protections for individual rights from a Constitution Court in the lead up to the 2014 coup, will challenge that contains no such rights. this representation. It will show that within decisions of the court in the period there were not only elements Dana Burchardt: Constitutional identity and the which frustrated government objectives but also ele- German Constitutional Court ments which frustrated elite aims, and that while there Dr Dana Burchardt will discuss the German con- were elements of decisions which made it difficult stitutional court’s impact on constitutional change. for governance to proceed there was also evident a Through its jurisprudence on European integration concern to avoid creating constitutional or political and the limits thereof, the court has shaped and con- deadlock. It will argue that because of these features tinues to shape not only the German constitution but court decisions in the period had potential, had events also the constitutional landscape in other Member played out differently, to help build and reinforce con- States and the EU itself. Particularly the recent cases stitutionalism. It will suggest the fact they did not was, on the notion of constitutional identity and its proce- whilst in part attributable to imperfections in court ac- dural implementation highlight the renewed emphasis tion, largely also attributable to the way commentators of the court to impose domestic constitutional stan- and politicians responded and, ultimately, to untimely dards more strongly, thereby altering the established

Concurring panels 52 Concurring panels 53 19 courts during post-conflict situation’ may be invoked to challenge the jurisdiction 20 courts facing constitutional on this ground have been rejected by CJEU as not transitions of the ICC. This, then, triggers the question of how to gaps. Rights as a tool admissible. However, the profile of the involvement of define whether the judiciary of a state in transition is to detect institutional EU institutions in assistance plans seems to be able Domestic, regional and international courts play an ‘able’ and ‘willing’ to discharge its duties. Second, the accountability to configure some way to involve supra-national com- increasingly important role in post-conflict transitions particular context of transitional governance can be mitment to assure social rights. The role of EU institu- with implications for the balance to be struck between invoked for instrumentalizing the ICC. The panel focuses on the role of Courts in facing con- tions in assistance plans has been positively evaluated competing demands of peace, justice, and transition. stitutional vacuums, i.e. situations where the constitu- by CJEU since Pringle and it was assessed also in This panel brings together three papers dealing with Luis Viveros Montoya: Peace Against Humanity: tional law do not regulate the matter at all or there is Gauweiler. The involvement has been considered as various stages of transitions, including the negotiation, Colombia’s Peace Process Conundrum and In- no power to intervene conferred to some institutional a way to better assure the respect of the objective of interim, and implementation phases, with a view to ternational Justice as a way Forward actor or levels of government. Therefore, rights seem financial stability of the EU economic Constitution. In critically examining the role and instrumentalisation of After years of negotiations, FARC and the Co- to have become a leverage to fill the absence of power Mallis and Ledra Adv. CJEU rejected the action for courts during transitions from armed conflict to peace. lombian Government signed an agreement which and their impact on positive and constitutional law. annulment ex art. 263 TFEU considering conditionality was submitted to a plebiscite. On 2 October the The analysis addresses the emergence of new rights outside EU order. However, it considered configurable Participants Asli Ozcelik Olcay Colombian people narrowly rejected the agreement and the challenge of ongoing legal transformations, non-contractual liability ex art. 340 TFEU. The role of Emmanuel De Groof (50.2%/49.8%). After a re-negotiation of some terms due to a ceaseless dialogue between national and the Commission in ESM is considered as a guardian of Luis Viveros Montoya in contention, a new accord was signed establishing international actors. the Treaties. Also when it signs acts outside legal order Moderator Ebrahim Afsah a Transitional Justice (TJ) framework. However, the it have to guarantee compliance with EU law: if this Room 8B-3-09 new deal does not significantly alter the international Participants Mario Iannella does not happen, it could be considered responsible law-related issues of the rejected one. Colombia’s TJ Francisco Javier Romero Caro under article 340. Two major consequences came process, as many others before, engages complex Maja Sahadžić after these judgements. On one hand the scope of ap- Asli Ozcelik Olcay: Judicialised peace-making: issues which are dilemmatic (Teitel) in nature: how to Giovanna Spanó plication of the Chart of Fundamental Rights seems to The role of courts during peace negotiations harmonise victims’ expectations of justice and retribu- Mimma Rospi be reshaped. While for the States it applies only when The existing studies on negotiated settlements tion expressed as reparations and prison sanctions Moderator Paolo Passaglia they are implementing EU law for EU institutions this to internal armed conflicts have left the role of inter- on the one hand, with perpetrators’ expectation of Room 8B-3-19 limitation is not consistent: They had to apply the Chart national and domestic courts during the negotiations reengagement with society and participation in politics, also outside EU order. On the other hand, the role of under-explored. This paper aims to conceptualise the on the other? Moreover, how solve those questions Commission in assistance plans is configured in a way role of international and domestic courts during peace when, like in the case of members of armed non-state Mario Iannella: Guarantee of Social Rights in that seems to solve our research question. The Court negotiations, with a focus on constitutional courts, re- actors forcibly conscripted as children, the labels of Conditionality: the role of European Commis- fixes this frame: when it had to sign MoU the Commis- gional human rights courts and the ICC. When negotia- victim and perpetrator coincide in the same person? sion in Ledra Adv sion had to balance social rights and overall economic tions take place within their jurisdictional reach, courts These dilemmas should be analysed within a larger The recent economic crisis determined the intro- interest of Eurozone. A restriction of social rights is cast a shadow on negotiations through their previous one: how to balance society’s expectation that future duction of new mechanisms of assistance in the Euro- admissible only if it could pass the proportionality test. jurisprudence, which defines the relevant norms and victimisation be avoided with past’s victims’ rights to zone, lastly the ESM. To face asymmetric shocks those delineates what should and should not be negotiated. truth, justice, and reparation? mechanisms potentially provide individual financing to Francisco Javier Romero Caro: Sections 7 and The involvement of courts may also assume a more the member States. Moreover the provision of funds 15 of the Charter and the quest for new social dynamic character, whereby courts become indirect is strictly linked to the implementation of reform plans rights in Canada: building the social state one parties to peace negotiations by interacting with other contained in MoU. On legal ground, ESM is introduced brick at a time? actors and, at times, changing their position as a pro- by an intergovernmental treaty and the conditionality Since the global financial crisis started in 2007 cess unfolds. The paper surveys the varying forms provided in agreements that are not considered as there has been an increase in unemployment and a and degrees of the roles courts have played in the acts of EU order. Thus, in several States reform plans downgrade of the labour conditions in most of the peace processes in Colombia, the Philippines, Su- that deeply affected citizens’ social rights have been western world. Although on a smaller scale than in dan, Uganda, Bosnia, and Burundi. It concludes with a hardly challenged or overturned by national Courts. other countries, Canada is not an exception in this brief assessment of the potential benefits and risks of This creates also a predictable violation of rights guar- matter. According to Canada Health 7,7% of Cana- the judicialisation of peace-making and stresses the anteed by the Charter of Fundamental Rights of the dian households were food insecure in 2007-2008. need for further explorations of the interplay between European Union and problems of discrimination be- Other reports show that this figure has increased to peace-making and judicial interventions. tween EU citizens. The paper analyses some recent 10% in 2014. Therefore, food poverty is a significant cases of the CJEU trying to solve the question about social and health problem in Canada. The Canadian Emmanuel De Groof: The ICC used as a weapon the existence of an institutional actor that had to as- Constitution dates from 1867, and it did not have a Bill in state transformation processes sure the respect of social rights of EU citizens also of Rights entrenched in the Constitution till 1982. The Especially since 1898, external actors have im- when their State required an assistance plan. In the Canadian Charter of Rights and Freedoms does not pacted state transformation processes in countries lasts crisis, State institutions proved to be only partially contain any explicit provision concerning social rights such as Central African Repeblic (CAR), Côte d’Ivoire, able to guarantee the rights conferred to their citizens or any mentions to the guarantees of the Covenant on the Democratic Republic of Congo (DRC), Kenya, Libya, by national Constitution. Particularly, this happens dif- Economic, Social and Cultural Rights. This lack of ex- Mali, Sudan & Uganda. The International Criminal Court ferently among countries requiring assistance and with plicit recognition of social rights constitutes a vacuum (ICC) has played a role in all these transition processes. some degree of intertemporal inequality. To assure that needs to be filled by the case law of the Supreme The relation between transitional authorities and the some degree of uniformity in the level of protection Court. In light of the Charter’s wording and historical ICC is case-dependent. The Court’s jurisdiction is ei- to EU citizens, according the Chart, only a EU-based context, sections 7 “equality rights” and 15 “life, liberty ther actively searched for or, on the contrary, carefully solution seems predictable. Conditionality measures and security of person” seem like the better options to avoided. Two scenarios are particularly relevant in the have not been considered as acts of EU order and, link the Charter values to socioeconomic rights. Par- context of transitional governance. First, a ‘transitory consequently, actions against these measures based ticularly the notion of security of the person contained

Concurring panels 54 Concurring panels 55 in section 7 has important potential to develop a key Rights and Fundamental Freedoms and its Protocols, territoriality, a potential discrimination may be envis- “therapeutic obstinacy” recognized the right to die with role in the constitutional entrenchment of social rights or with the laws of Bosnia and Herzegovina, or con- aged simply according to the place where the migrants dignity as a facet of the right to lifeitself. In particular, in in the Canadian system. As the Supreme Court stated cerning the existence of or the scope of a general happen to reach (first?), casting doubts on the fairness the dialogue between the ECHR and national Courts, in Gosselin v. Quebec (Attorney General) 2002 SCC rule of public international law pertinent to the court’s of the proceeding itself, taking into account that the the judgments of ECHR bind all members State. So 84, section 7 of the Canadian Charter of Rights and decision. Even though the constitutional norms do not decision of the authorities serves the purpose to “cre- national Courts can presumably introduce this new Freedoms could be interpreted as to include positive provide a proof that the Constitutional Court should ate” or “reject” the recognition of fundamental rights right in their constitutional frameworks, without a rights that will result in obligations on governments to make up for the lack of supreme judicial instance at protected at European as well as international level. precise constitutional review procedure and through guarantee a certain degree of social assistance. This the state level, it happened that the Constitutional Obviously a Court is able to intervene in the single conformation with supranational case law. “Juristoc- provision expresses some of the basic values of the Court has gone beyond its prescribed appellate com- application, though at a later time and (again) on the racy” is a typical feature within common law systems Charter and has to be regarded as a dynamic and not petences for the purpose of protecting human rights basis of a territorial relevance. All of the above raises because of stare decisis, though it would be a quite frozen legal provision. These considerations left the and freedoms on the whole territory of Bosnia and more than one issue owing to the significant devolu- innovative tool in civil law one. Then, a question may door open for the possibility of adopting new social Herzegovina. Thus, in the case AP 775/08 the Con- tion carried out on matters concerning fundamental arise: do Courts own an autonomous costitutive power rights by constitutional interpretation when the right stitutional Court embarked in deciding on how the rights, potentially leading to differing solutions and facing constitutional gaps in order to recognize new circumstances concur. The questions that follows is courts have interpreted and applied laws, even though, contradictory case law. The aim of the proposal then fundamental rights and in spite of legislative inertia? are we there yet? Following these considerations this by its nature, has no jurisdiction for such. This paper is to try to address the hybrid nature of this committee Has a new era of constitutionalism began? paper aims to analyse the possibility of creating new seeks to elaborate on how human rights and freedoms that can be retrieved throughout several European social rights, particularly regarding food security, by have been provoking the Constitutional Court to gain a countries, such as France and Germany, though with adopting a novel interpretation of s.7 of the Canadian vigor to flow through its sui generis status and act as a some differences that will be underlined. Despite the Charter of Rights and Freedoms. surrogate judiciary in order to fill in gaps. Drawing on administrative core of the request, on one hand, their the previous, the paper analyses the prominent Con- rulings can significantly impact the individual’s funda- Maja Sahadžić: Unfinished judicial system and stitutional Court decisions in order to demonstrate the mental rights but on the other hand, an appeal is not legal vacuums: the case of Bosnia and Herze- reasons purpose and effects of its decision-making. In carried before an administrative court, because funda- govina comparative perspective, the paper explores whether mental rights are at stake! Can policy urgencies justify In the states with the Continental European legal similar challenges exist elsewhere. Finally, the paper the sacrifice of fundamental rights? The adjective “po- tradition, the supreme court is the highest judicial body argues in favor of necessity to establish the supreme litical”, which defines the concept of “asylum” seems within the judicial system. Its purpose is, among other, court at the state level in Bosnia and Herzegovina. to be assumed as the leading criterion, but precisely to ensure the uniform application of law and equality in this regard it is of paramount importance to pave the before the law. Although Bosnia and Herzegovina be- Giovanna Spanó: Waiting for asylum seeking way towards a greater uniformity of responses. Simple longs to the countries of Continental European law, its (fundamental) rights. An insight beyond Law “circumstances” in fact, can confine fundamental rights constitutional and legal construction contains certain and Courts beyond the law and the Courts as well. particularities with regard to the judiciary. Complete Courts continue to play a crucial role in the speci- judicial systems have been established in the enti- fication and reformulation of fundamental rights, be- Mimma Rospi: Constitutional gaps new funda- ties and the Brčko District. Nevertheless, the Annex yond providing a mere substantive protection of the mental rights and the role of Courts. The case of IV of the General Framework Agreement for Peace in latter. What if, however, this sort of substitution is ab- end-life Bosnia and Herzegovina (the Constitution) has not pro- sent as well? The issue may become quite pragmatic Current social, economic and cultural changes vided norms establishing the existence of the judiciary when the surge ingrowth of asylum requests comes highlight the constitutional gaps in the protection of at the state level. In other words, the constitution has into the picture. As far as this situation is concerned, new fundamental rights. In particular, there are new not provided prerequisites for the establishment of the actually, the main task may not be to rely solely on claiming of protection, but several actual constitu- integral judicial system. In the course of 2002 the Law the assessment of the completeness of each State’s tions don’t seem to guarantee them thoroughly. So on the Court of Bosnia and Herzegovina established internal (immigration) law rather it shall depend on the role of Courts is important because they recognize the Court of Bosnia and Herzegovina at the state level. verifying how Courts may enhance or re-evaluate the the existence of new fundamental rights through the However, due to a narrow and specific jurisdiction and content of a fundamental right itself. The suprana- judicial review. Scholars define this phenomenon as non-hierarchical relationship towards the courts in the tional dimension indeed is binding only as to the re- a “Juristocracy” because of Courtsimpact on Consti- entities and the Brčko District the Court of Bosnia and sult to be achieved and not to the precise means to tutions as de facto Legislator, waiting for positive law Herzegovina could not compensate for the lack of the strive towards the same objectives. So there exists to follow up. This process of “Juristocracy” may be supreme court. Strictly speaking, the Court of Bosnia a a huge discretion in order to choose how to meet observed in issues concerning biolaw, due to Courts and Herzegovina has been functioning as a special the obligations, not enabling a thorough verification intervention in Bioethical tasks. The case of end-life court at the state level. The Constitutional Court of of the concrete degree of harmonization. The main can well serve the purpose to explain all of the above. Bosnia and Herzegovina has been, indeed, estab- problem, though, can be retrieved in the procedure for The aim of this paper is to verify if Courts are man- lished by the constitution, and, needless to say, as a sui the recognition of refugee status itself, which seems aging to affirm the “right to die” with dignity’s a new generis institution. However, the Constitutional Court more focused on the request rather than the obligation emerging, fundamental right. In particular, I propose has a specific jurisdiction over appellations based on imposed by European and international humanitarian a comparison between the case ruled by Canadian articles VI 3 b) and VI 3 c) of the Constitution of Bosnia law. In particular, the committees or officers in charge Supreme CourtCarter v. Canada (Attorney General) and Herzegovina. This refers to the jurisdiction over to supervise the whole course of action- from the inter- 2015 SCC 5 – 015 SCC 5 No: 35591. 2014 and the issues arising out of a judgment of any other court in view to the results- can be pictured as administrative case of ECHR No 46043/14 Lambert et all v. France. Bosnia and Herzegovina and issues referred by any authorities, not Courts in the strict sense but affect- In the former case (Carter) the Canadian Supreme court in Bosnia and Herzegovina concerning whether ing individual spheres like other “judges”. In Italy, they Court decided in accordance with article 7 of Char- a law is compatible with the Constitution of Bosnia and are made up of several actors: governmental, local ter of Rights and Freedoms, whereas the ECHR took Herzegovina, with the European Convention on Human and UNHCR representatives. Due to the linkage with article 2 CEDH into account. Both Courts, assessing

Concurring panels 56 Concurring panels 57 21 defending the Rule of Law – efficient justice systems will drive stronger economic features and challenges of operations management in 22 destructive or integrative? Efforts to Assess the Quality growth. A systematic overview of justice functioning courts. Based on the identified challenges, possible Conflict management by of Justice is a pre-requisite for formulating recommendations approaches for improving operations management courts during the Eurozone and support actions to improve the quality effective- are discussed. The study aims to increase the success crisis Evaluations of court quality have focused on statisti- ness and efficiency of justice. The 2016 Scoreboard of quality management projects and process improve- cal data (e.g. clearance rate, number of judges and evaluation is structured around 57 comparison charts. ment initiatives by increasing the understanding of The Eurozone crisis has altered the structure of con- lawyers per capita, IT infrastructure of courts etc.). This The data presented appears as a systematic ranking operation management in courts. The study is based flicts in the EU. Crisis-related decisions by European statistical approach has been criticized by some politi- of EU judiciaries’ in different fields, shaming the less on data and findings of a development program aim- institutions have been highly visible in the public realm cal and legal analysts for being insufficient to get the well performing ones, while not offering detailed infor- ing to improve operations management approaches and new conflict parties have emerged. The funda- whole picture on the real strengths and weaknesses of mation on the systems scoring high in achievements. in Finnish justice system. mental change in the structure of conflicts in the EU different justice system. From this experience one can The content of the indicators are not homogenous puts the Union at a crossroad, as conflicts can be conclude that the data and figures that focus mostly across countries, nor do they present a full picture of seen to have the potential for both: jeopardizing the on efficiency issues cannot answer the fundamental the justice process (e.g. judicial activities only at first European integration project or serving as catalysts question of how justice systems serve the values of instance limited set of cases) or link related indicators for the deepening of European integration. Whether rule of law (e.g. creating legal certainty, guaranteeing (e.g. outcomes of judicial process and resources). Fur- a conflict turns out to be destructive or constructive human rights, controlling the exercise of political pow- thermore, efficiency does not automatically guarantee depends on various parameters one being the mecha- er). In order to carry out a true and valid assessment the quality and independence of justice. The paper nisms of conflict resolution. Notably courts, both at we need to improve the existing evaluation methods in analyses the Scoreboard from a three-pillar approach the domestic and at the supranational level, are im- two steps. First, a significant improvement in terms of grouping existing indicators around legality, efficiency portant actors in this regard. In this panel, we seek reliable and relevant indicators of court performance and democracy. It explores whether existing indicators to address the question, how selected courts have is needed if we want to have exact information about address the three pillars and offer sufficient informa- managed crisis-related conflicts and whether they how judicial systems fulfil their most fundamental tion to promote legal reforms inspired by better-per- can be seen to harvest the constructive potential of tasks. Then we need to find ways to enhance the use forming systems. Thus, sharing better practices to conflicts or – at least – mitigate destructive effects. We of performance statistics and quality indicators in the improve the quality of justice systems and monitoring will focus on two domestic courts, namely the Span- management of judicial systems. The implemented the results of implemented reforms. ish and the Portuguese constitutional courts, and the management solutions need to take into account dif- European Court of Justice. Since a key question in this ferent aspects of quality, as well as incorporate the Petra Pekkanen: Operations Management view regard concerns the relationship between courts and specific nature and requirements of justice operations. to court quality: Analyzing features challenges the European and national legislators, the Panel will and improvement opportunities also include one presentation focusing on parliaments’ Participants Matyas Bencze In court quality work, it is important to find ways to role during the crisis. Elena Alina Ontanu improve the use of statistics and quality indicators in Petra Pekkanen the management of judicial systems. The need to im- Participants Jenny Preunkert Moderator Petra Pekkanen prove the management practices has been highlighted Cristina Fasone Room 8B-3-33 in quality and performance improvement approaches Tomás de la Quadra-Salcedo undertaken in courts, for example Total Quality Man- Janini agement (TQM) and Caseflow Management (CFM). Teresa Violante Matyas Bencze: Obstacles and opportunities: Central challenge in TQM and CFM efforts has been Anuscheh Farahat and Measuring the quality of judicial reasoning the low acceptance of indicators and targets among Christoph Krenn How can we “measure” the quality of judicial rea- legal personnel. Operations Management (OM) is an Moderator Marius Hildebrand soning? Can we measure it at all? Or should we be area of management concerned with designing the Room 8B-3-39 satisfied with the “softer” method of assessment when processes of production. It involves ensuring that it comes to the quality of judicial motivation? These are operations are efficient in terms of using as few re- the questions I address in this paper. In the first part I sources as needed and effective in terms of meeting Jenny Preunkert: Conflicts over EU public au- justify the importance of quality assurance of judicial quality standards and customer requirements. Even thority after the crisis and their constructive or reasoning itself, independently from the other ele- though OM is originally introduced in manufacturing deconstructive potential ments of adjudication. After that I recap the possible environment, also many professional service orga- objectives of the project for assessing the quality of nizations are facing pressures to improve operation Cristina Fasone: The role of national parlia- justification (judicial independence, diversity of judicial management. The need to improve and take into ments and the European Parliament during the styles, problem of measurability). I try to answer these account the specific features of OM in professional Eurozone crisis: Unable to manage conflicts? challenges and I outline some examples of the pos- work has resulted in the research field of Professional The roles of national parliaments and of the Eu- sible forms of quality control on the reasoning activity Service Operations Management (PSOM). Because ropean Parliament (EP) during the Eurozone crisis of judges. all managerial solution need to take into account the have been shaped by the respective competences specific features of the operations in questions, the in matters of economic governance and by the specific Elena Alina Ontanu: EU Justice Scoreboard: implemented management solutions in courts need economic situation in place in a Member State. The Steps Towards A Comprehensive Approach to to incorporate different aspects of quality, the specific way the austerity measures have been adopted both Quality Evaluation nature of stakeholder involvement, and the require- at European and national level appeared at first to The Justice Scoreboard is an initiative to assess ments of work and processes. The objective of the have sidelined parliaments as budgetary authorities. the functioning of the Member States justice systems. study is to analyze the distinct characteristics of courts The proposed paper investigates if and, in case, how The underlining assumption is that more effective and as professional service organizations and the special national parliaments and the EP have been able to

Concurring panels 58 Concurring panels 59 manage the political conflicts arising from the ‘Euro- tainty and the protection of legitimate expectations. 23 dIALOGUE BEYOND LITIGATION: ates in Australia. Over the last 20 years, Australian crisis law’. It is argued that while the EP has tried to play This contribution will analyse these decisions from A CONTEXTUAL APPROACH TO governments have sought to implement increasingly a role in the Euro-crisis-related conflict management, the perspective of social rights’ protection within the CONSTITUTIONAL INTERPRETATION tough preventative measures against organised despite its limited competence in matters of econom- framework of a dialogue between constitutional justice crime groups and serious violent or sexual offend- ic policy, national parliaments to some extent have and the legislator. Constitutional dialogue theory recognises that consti- ers. These measures have been shaped and some- abdicated this role, unless courts have forced them tutional interpretation is a dynamic process involving times stymied by the High Court’s uncertain, unclear to act. As for the comparative analysis on national Anuscheh Farahat and Christoph Krenn: Conflict multiple, interacting participants. Courts may have an and shifting constitutional jurisprudence. While there parliaments, the proposed paper intends to focus on management by the European Court of Justice important voice, but do not have the only – or even the has undoubtedly been dialogue between the three selected national cases – France Germany and Italy – in times of crisis final – say in discerning the meaning and effect of a branches of government, this dialogue has failed to representing different economic conditions experi- In this presentation we wish to analyse how the constitution. In addition, the legislature, the executive, deliver effective law and order policy rights protection enced throughout the crisis and various systems of European Court of Justice is managing conflicts in and the community each engage with the constitu- or consensus on constitutional values. In light of this government, in terms of powers structure between times of crisis, in particular how it has dealt with the tion and with one another in an ongoing process of experience, this paper reflects on how each branch of the legislature and the executive and the powers of increasingly politicized nature of the conflicts brought interpretation. It is through this engagement that a government could better fulfil its role in responding to constitutional courts. before it during the Eurozone crisis and the emer- ‘vibrant and durable’ constitution is sustained. This uncertainty in constitutional doctrine and in developing gence of new conflict parties. We argue that the ECJ panel intends to widen the ambit of discussion about constitutional principle. The political branches ought Tomás de la Quadra-Salcedo Janini: Conflict has only reluctantly accepted the challenges arising constitutional dialogue. The papers will consider the not to refrain from engagement with the uncertainty management by the Spanish Constitutional from these conflicts. After its initial denial of jurisdic- impact that judicial review and judicial decisions (in and development. Rather, it is to bring its institutional Court in times of crisis tion, the ECJ only recently accepted its responsibility their different forms) have on executive and legisla- strengths into dialogue with judicial development. The In this presentation, we want to analyze how for the fundamental constitutional changes resulting tive engagement with and deliberation about consti- political branches are uniquely placed to form novel the Spanish Constitutional Court has approached from the Eurozone crisis, when it accepted a claim for tutional norms; the judicial role beyond the context of responses to contemporary social challenges that may the control of the reforms that have occurred as a damages against the Commission in a case concern- rights-based litigation; and the impact of legislative responsibly push at the edges of established consti- consequence of the Eurozone crisis. This includes ing Cypriote banks. Today, the ECJ seems to be moving and executive action on judicial exegesis of a consti- tutional doctrine. Such pressure may result in clarity legislative but also constitutional reforms that have slowly toward taking its role as an EU constitutional tution. By drawing together perspectives from three and extension of judicial exegesis. Further, by demon- affected both the constitutional economic model and court seriously. It increasingly focuses on the protec- different jurisdictions (Australia, the United Kingdom strating institutional capacity for political scrutiny and the model of territorial decentralization. With regard to tion of the balance of power between EU institutions and Canada), the panel will explore the ways in which deliberation to provide both informative and analytical crisis-related measures, the Constitutional Court has and simultaneously is more willing to also restrict institutional and cultural context affects the operation assistance to judicial review, the political branches can notably been confronted with the question as to the the power of these institutions to the advantage of of constitutional dialogue. inform judicial adoption of the most jurisdictionally value of international treaties in interpreting the rights domestic legislators and their peculiar welfare state appropriate level of deference in emerging constitu- contained in the Constitution. In contrast to greater arrangements. This suggests that the ECJ is increas- Participants Gabrielle Appleby and tional doctrine. activism by other constitutional courts such as the ingly aware of the politicized nature of conflicts it is Anna Olijnyk Portuguese or the Italian constitutional courts, the confronted with in an increasingly polarized political Grant Hoole Grant Hoole: Interinstitutional Dialogue and Spanish Constitutional Court has formally accepted environment. If this is true, the ECJ may indeed con- Mary Liston Reference Power in Canada the constitutionality of most of the reforms introduced. tribute to the productive potential of conflicts or at Jack Simson Caird Scholarship on the metaphor of interinstitutional An area that seems prima facie unrelated to crisis least mitigate their destructive effects. Moderator Scott Stephenson dialogue, or advocating a particular conception of dia- measures, but which could become important also in Room 8B-3-49 logue ‘theory’, is predominantly concerned with the relation to them, is the tension between the case law institutional dynamics fostered by the litigation of con- of the Spanish Constitutional Court and the European stitutional rights. This focus is understandable given Court of Justice on determining the level of protection Gabrielle Appleby and Anna Olijnyk: Doctrinal the origins of the metaphor as a reply to scepticism of fundamental rights (the “Melloni-saga”). Also this Uncertainty and Legislative and Executive Con- about judicial review under Canada’s Charter of Rights aspect will be addressed in this contribution. stitutional Deliberation in Australia and Freedoms. It nevertheless overlooks a valuable There is a growing debate in Australia around the case study for understanding interinstitutional dynam- Teresa Violante: The Portuguese constitutional responsibilities of the political branches to upholding ics in interpreting and applying the Constitution. The case-law on austerity legislation: Protecting constitutional norms. These debates have arisen when reference power which allows Canada’s federal and social rights by curbing the legislator’s choic- the legislature or executive has sought to act within the provincial executives to refer advisory questions to the es? context of doctrinal uncertainty often caused by judi- courts more closely resembles an actual conversation Social rights have been heavily affected by the cial development of nascent constitutional principle. between the political and judicial branches than does economic crisis that Portugal has been facing, es- This paper analyses these debates through the lens of conventional rights-based litigation. It has also played pecially through the approval of concrete austerity dialogue theory: a branch of scholarship that has rarely a role in Canada’s constitutional development equal to measures. The right to work and the rights of workers, been applied to the Australian context outside the that of litigation, clarifying and consolidating the effect social security, health and education were the most rights context. In some respects, Australia’s constitu- of both written and unwritten aspects of the Constitu- important targets of the foreseen reforms. A signifi- tional framework (including parliamentary government, tion. This paper uses Canada’s experience with the cant bulk of austerity legislation taken to the Consti- strong-form judicial review and no bill of rights), and reference power as a lens through which to explore tutional Court was ruled unconstitutional. However, legal culture (in which legalism and judicial supremacy the accuracy and normative significance of describing and perhaps quite surprisingly if we have in mind the are the prevailing orthodoxy) do not lend themselves the process of constitutional interpretation as insti- detailed constitutional catalogue of social rights, the to lively constitutional dialogue. Despite these barri- tutionally dialogic. Situating the courts’ responses to most common reasoning employed by the Court to ers there is abundant evidence that dialogue does reference questions within legal process theory, and support its decisions has not been the violation of so- occur. This paper uses the case study of legislative thus devoting attention to the procedure underlying cial rights per se, but the violation of well-established and executive responses to serious and organised judicial decisions and to the observance of boundar- constitutional principles, such as equality, legal cer- crime to examine how constitutional dialogue oper- ies related to institutional role and competence, the

Concurring panels 60 Concurring panels 61 paper highlights how institutional integrity is preserved argument here presents the Canadian trajectory to 24 The Regionalization of ticular approaches to international legal questions and in the face of close contact between the government address how institutional dialogue is both related to International Criminal to the deployment of funds and human resources from branches. It argues that while the dialogue metaphor and dependent on the state of democracy. Justice: Regional Power this region to international criminal justice positions. rightly frames constitutional interpretation as a coor- Balances and the Through the example of the ECCC – and drawing also dinate responsibility, institutional distinctness – and Jack Simson Caird: Brexit: The UK Parliament Transformation of an on material relating to other international(ized) crimi- inevitable interinstitutional tensions – remain essential and the Courts International Field of Law nal courts – this section of the paper will contribute a to the project. The paper thus advocates restrained Brexit has pushed constitutional law, and the re- tentative analysis of how regional power balances and use of the dialogue metaphor, supporting its core value lationship between Parliament, the Courts and Gov- The core idea of the panel has two elements: 1) that the diplomatic relations shape investments into interna- in highlighting the dynamic interinstitutional and ongo- ernment, to the top of the political agenda in the UK. efforts to redirect the practices of international crimi- tional criminal law. As such the paper will investigate ing nature of constitutional interpretation, but caution- The level of public, media and political interest in the nal law towards regional forms of governance crimes regionalization of international criminal law in a broad ing against normative applications that would diminish Supreme Court’s consideration of Miller was unprec- reveal broader dynamics of power in this field, and 2) sense, focusing on a hybrid tribunal that is not formally the individual distinctness and accountability of the edented. The Miller litigation is in many ways a classic that only by clearly identifying the field of power around a regional institution, but was deeply impacted by re- branches of government. example of the dialogue metaphor in action. With each the courts can the actual power of these institutions gional and international power struggles. branch examining and providing different answers themselves be discerned clearly, whether symbolic Mary Liston: Unpacking the Conceptual Bag- on major questions of constitutional interpretation, or material. Key questions posed by the papers con- Nandor Knust: The Regionalization of Interna- gage: Dialogue Theory in Context namely on the meaning a major constitutional stat- cern the perceived differences between national and tional Criminal Justice: Different Legal Answers This paper looks at recent criticisms of dialogue ute: the European Communities Act 1972, the nature international adjudication and their respective power to International Crimes and takes seriously two key charges: 1) that all sys- of prerogative powers and the workings of devolu- among the groups pushing for regionalization, the so- This paper will discuss Regional Criminal Justice tems with bills of rights inevitably end up with judicial tion. These differing answers have arguably shown cial and political structures that format the space in Mechanisms (RCJMs) by focusing on a case study supremacy instead of institutional dialogue (Kuo 2016); the mechanics of the constitution working well under which international, regional and hybrid courts oper- of Kosovo and the newly created Kosovo Relocated and 2) that dialogic systems tend to underforce funda- pressure and enhancing the level of justification for ate, and the development of a field of stakeholders Specialist Judicial Institution (KRSJI). Through this mental rights (Leckey 2015). Both of these claims stand a major constitutional change. At the same time, the around these institutions that itself has specific power case study, the paper will analyze the influence of re- in stark contrast to the now global theory of institution- episode has brought the contrasting institutional ap- dynamics. From this point of departure, the papers gional organizations on the system of international al dialogue and its positive adoption in key jurisdictions proaches to the constitutional issues raised by Brexit will investigate how regional power dynamics affect criminal justice (ICJ) – and how those impulses have (Gardbaum 2013 Sathanapally 2012). One way to think into sharp relief. In terms of procedure and substance, the field of international criminal law and how these changed the more general legal landscape of ICJ. To about this apparent argumentative impasse is to make but also in terms of culture and tone, the worlds of law balances structure the space of maneuverability in do this, the paper will compare briefly the develop- clearer the conceptual baggage that accompanies and politics have appeared very far apart. This chasm which institutions of internationalized criminal justice ment of different regional approaches to ICJ and their these positions: baggage such as: preferences for appears to undermine the dialogic metaphor. The very can potentially yield symbolic and material power. linkages to regional political and legal institutions in weak versus strong form judicial review; positions on fact that it has been so unusual for a constitutional Africa Asia Latin America and Europe. This comparison the optimality of weak or strong dialogue when con- case to have such political significance has revealed Participants Mikkel Jarle Christensen and will provide new perspectives on different regional re- sidering the principle of deference; normative stances the limited crossover and mutual understanding be- Astrid Kjeldgaard-Pedersen sponses to combating international crimes as it plays about the desirability of strong rights, and the nature tween parliament and the courts, and the political and Nandor Knust out in specific sites of justice dominated by distinct and scope of interpretive pluralism in constitutional legal worlds more broadly. This paper examines the Gleb Bogush regional power dynamics. Based on the collected and matters. By bringing conceptual baggage to the sur- interaction between Parliament and the courts over the Moderator Mikkel Jarle Christensen evaluated data about the legal foundation, structure face in part one, the paper advances a plea for norma- constitutional questions arising from Brexit. The con- Room 8B-3-52 and integration into the national or regional system tive reflexivity and transparency and sets out a concep- trasting cultures of partisan conflict in Parliament and the research project will build a model for the effective tual typology (see also Macfarlane 2013). The second detailed statutory interpretation in the courts has led integration of regional political and legal institutions part of the paper suggests a different analytic path. to trenchant criticism of both institutions’ procedures Mikkel Jarle Christensen and Astrid Kjeldgaard- into the holistic and pluralistic system of ICJ. This path is pragmatic and understands institutional and decision-making. Some of this criticism has over- Pedersen: Competing Perceptions of Hybrid dialogue as both a process and a set of identifiable looked the constitutional importance of having such Justice: International Regional and National Gleb Bogush: Flight MH17: A Quest for Interna- institutional practices. Thinking about dialogue this contrasting cultures of legal and political account- Ideals about the Extraordinary Chambers of the tional Criminal Justice in a new Regional Setting way concretizes the metaphor and permits a perspec- ability in the United Kingdom’s constitution. This paper Courts of Cambodia Almost three years ago, a civilian Malaysian air- tive on the various points in the system where dialogue seeks to explain why Parliament and the Courts have Recent years have seen an increased debate plane was shot down over the zone of armed hostili- currently exists, is lacking, or may be created. This approached the issues so differently, and seeks to about the regionalization of criminal law, its potential ties in eastern Ukraine, killing all of the 298 people on section, largely descriptive, presents a process model critically evaluate the value of their distinctive modes and pitfalls. This paper will discuss competing per- board. Significant progress has been reached in the in- of institutional dialogue indicating where normative of operation. Parliament and the courts speak a very ceptions of justice formed around the Extraordinary ternational investigation of this crime. However, after a positions from part one view the various components different constitutional language, and while many see Chambers in the Courts of Cambodia (ECCC). Mixing failure of the UN Security Council to establish a special positively or negatively. The author also considers the this as a cause for concern, there are strong reasons insights from critical sociology and legal scholarship, criminal tribunal in July 2015, a decision on the most under-examined interaction between constitutional to defend the conflict in style and substance that has the paper analyzes how regional and international effective prosecution and adjudication mechanism and administrative law in a common law system as part been so apparent since June 23 2016. power dynamics influenced the development of the yet has to be made by the affected States. The paper of a larger system of institutional dialogue. The third Chambers and how these balances are written into its discusses the main remaining options for prosecution and final part contextualizes the two previous sections legal financial and professional structure. Specifically, and trial of those responsible for the tragedy of MH by applying them to the Canadian example – the origi- the paper investigates how international diplomatic 17, including the national trial and organization of a nal site of institutional dialogue. The Harper years saw battles and the historical power dynamics of the re- special tribunal. While discussing the advantages and the rise and fall of institutional dialogue in theory and in gion shaped the legal and institutional design of the disadvantages of the said options, particular attention practice. Following Young (2017) the author advances a Chambers and, consequently, the professional battles is paid to the possible involvement of regional orga- conception of institutional dialogue, understood as a that affect the day-to-day work environment. Building nizations and triggering the potential of Chapter VIII set of relations between the rule of law and democracy on this analysis, the paper will then relate its findings to of the UN Charter. This option is investigated as part that is crucially dependent on political context. The broader regional power dynamics as reflected in par- of a wider trend of regionalizing international criminal

Concurring panels 62 Concurring panels 63 justice and will be situated in the wider political econ- 25 ernst-Wolfgang Sabino Cassese: Böckenförde’s notion of the 26 The Continuous Authority of omy of regional actors. The paper also addresses the Böckenförde’s constitutional state in comparative reflection with Italian International Lawyers in substantive law issues related to the MH 17 incident. In thought in comparative state and constitutional theory Modern International Politics. this light, the MH17 incident itself reflects new realities perspective: can it provide the The paper will analyse Böckenförde’s notion of The “International-Law Polity” of the contemporary armed conflicts and as such may basis for a European public the state as a constitutional state, and highlight the Hypothesis serve to stimulate the development of international law? parallels and differences in German and Italian con- criminal law beyond the traditional core international stitutional and political thinking. The last two decades have seen the emergence of crimes, as well as diversity of international criminal Ernst-Wolfgang Böckenförde (born 1930) is one of Ger- a rich literature in the fields of history, political sci- justice more generally as this form of law becomes many’s foremost legal scholars and political thinkers. Alexander Somek: Böckenförde’s Staatsrecht- ence, and critical legal studies regarding the critical increasingly regionalized. As a scholar of constitutional law, Böckenförde has slehre as a basis for a European public law? role played by international law and lawyers in world been a major contributor to the conceptual framework The contribution will discuss the extent to which affairs ever since the early 20th century. Although of the modern state, and to political and ethical con- Böckenförde’s work can provide (at least in part) the sharing an interest in international law and lawyers, troversies from vexed questions about potential states basis for a European public law. It seeks to illustrate these studies have provided strikingly different – and of emergency to the ethics of genetic engineering. As why Böckenförde’s notion of the constitution as pro- conflicting – accounts and periodizations of the rise a judge on Germany’s Federal Constitutional Court viding a framework order rather than an ambitious (and sometimes fall) of international law and law- (1983 – 1996) and the author of the highest number of normative program lends itself particularly well to an yers. Many of these differences in interpretation are dissenting opinions in the court’s history, Böckenförde emergent European public law where value genera- due to differences in disciplinary approach. With a has significantly influenced the way law and politics are tion still (and recently with renewed verve) takes place view to both foster dialogue across disciplines and conceived of in Germany. This panel re-visits Böcken- within the national unit. to discuss the contradicting views, the organizers förde’s work as a late beacon of the German statist of the present panel suggest a new interdisciplinary tradition and probes its relevance amid contemporary Michaela Hailbronner: Böckenförde’s view of conceptual framework for understanding the role of debates about the constitutional implications of a glo- the Constitution as a Framework Order: Fit for international law and lawyers since the beginning of balized world order, where notions of a post-state, post- Germany futile for democratizing societies? the 20th century: “International Law-Polity” (ILP). This sovereign, and multi-level ordering, have taken center The paper will analyse Böckenförde’s view that model underlines the strikingly stable relationship stage. Böckenförde is unique in that he confronts the the constitution is normatively best understood as a between law and the government of global affairs basic concepts and conceptual presuppositions of the framework order (Rahmenordnung) in contrast to the that has been consolidated since the creation of the old Staatslehre with the challenges of an interdepen- idea which the Federal Constitutional Court estab- League of Nations. In the panel, the ILP model will be dent world. Focusing on his notions of the state and of lished in its early jurisprudence whereby the Basis Law presented and contrasted with other accounts of the the constitution, participants explore the timeliness of constitutes an “objective order of values”. The latter rise of international law. Böckenförde’s work and ask whether and to what extent view, Böckenförde criticises, leads to judge-made- it can serve as a basis for a European public law. law and undermines separation of powers. The paper Participants Mikael Rask Madsen will discuss this critique in the light of constitutions Antoine Vauchez Participants Tine Stein and charged with normative propositions and examine Karen J. Alter Mirjam Künkler if (contrary to Böckenförde) these constitutions are Jan Klabbers Sabino Cassese better equipped to deal with the challenges of insti- Moderator Mikael Rask Madsen Alexander Somek tutional failure. Room 8A-4-47 Michaela Hailbronner Kai Möller Kai Möller: Böckenförde, the objective order of Moderator Mirjam Künkler values, and the provincialism of Staatsrecht- Mikael Rask Madsen: The Genesis and Perpetu- Room 8A-4-35 slehre ation of the International Law-Polity (ILP): A The paper will make two claims. First, Böcken- Theory of the Power and Evolution of Interna- förde’s critique of the German Federal Constitutional tional Law Tine Stein and Mirjam Künkler: Between Court’s characterisation of the Basic Law as em- International law (IL) and international lawyers have Schmitt and Heller: The Legacies of Law and bodying an ‘objective order of values’ is in large parts come to play a major role in world affairs since the Sociology in Böckenförde’s Staatslehre analytically brilliant but yet ultimately unconvincing: beginning of the 20th century. We argue that this rise Contributions to this session discuss Böcken- no coherent conception of constitutional rights can to power of international law and lawyers is closely förde’s constitutional thought in comparative, whereby do without the objective order of values which must, linked to the institutionalization of world affairs around the first two papers focus on his notion of the state, however, be interpreted in a more imaginative way international organizations and courts that started to and the remaining four on various aspects of his notion than Böckenförde allows for. Second, Böckenförde’s take form at that historical moment. The specific power of the constitution and constitutionalism. In his think- failure in this regard is symptomatic of the ongoing of international lawyers, we further contend, is due to ing about the state, Böckenförde is heavily influenced crisis of German Staatsrechtslehre which until this day the ways in which they provided both the intellectual by the works of five thinkers: Thomas Hobbes, Georg does not appreciate that an engagement with political apparatus and imagination for legalizing world affairs Wilhelm Friedrich Hegel, Lorenz von Stein, Hermann philosophy and comparative law is not an afterthought and the human resources to exercise the function Heller, and Carl Schmitt. The paper will review how to but rather at the very core of any doctrinal interpreta- of governing world affairs. We argue that this, what these different political thinkers are consolidated in tion of the Basic Law. we term the international law-polity (ILP), produces a Böckenförde’s work. Special attention will be paid to double-faced model as it is both programmatic and the heritage of Carl Schmitt and Hermann Heller: is operational. The combination of both a utopian and a their work to a large extent reconciled in Böckenförde’s practical dimension implies that the model it is never thought and writings, or do tensions remain? fully realized, but nevertheless continuously being

Concurring panels 64 Concurring panels 65 practiced. Interestingly, the ILP model has turned out Jan Klabbers: Functionalism in International 27 eXPloring the potential of immigration. It will also explore the implications that to be very resilient and is to this day still the dominant Institutional law horizontal judicial dialogue: the status of judges (administrative civil criminal) may framework global legal governance. The presentation outlines how functionalism came sectorial case studies have on their control of the administration and judicial about by focusing on the ‘pre-history’ of International in private and public law interactions not only vertically as in the procedure of Antoine Vauchez: The Genesis and Perpetuation institutional law. To that end, the presentation analyses preliminary rulings involving the Court of Justice but of the International Law-Polity (ILP): A Theory of the work of a number of late 19th, early 20th century Judicial dialogue is a matter of fact, whether it is be- also horizontally between judges of different Member the Power and Evolution of International Law authors on the law of international organizations. It tween national and European courts, foreign domestic States. International law (IL) and international lawyers have turns out that functionalism, as developed by notably courts, direct or indirect. The extent of judicial dialogue come to play a major role in world affairs since the Reinsch, was inspired by his familiarity with colonial and its effects on legislation, institutional relations, Nicole Lazzerini: Horizontal judicial dialogue as beginning of the 20th century. We argue that this rise administration: colonialism and international organi- and ultimately on fundamental rights is not yet fully a duty (and its limits): the case of cooperation to power of international law and lawyers is closely zation both manifested cooperation between states. explored. Courts are not in charge of defining the law within the European Arrest Warrant System linked to the institutionalization of world affairs around The presentation further contrasts the perspective of but rather of interpreting it; however, in interpreting Interpreting the European Arrest Warrant Frame- international organizations and courts that started to functionalism with the ILP project. the law, they may affect the way in which other courts work Decision in light of fundamental rights, in the take form at that historical moment. The specific power will apply the same provision, and this may have ex- Aranyosi and Caldararu judgment (Joined Cases of international lawyers, we further contend, is due to ponential effects if these decisions emanate from the C-404/15 and C-659/15 PPU) the European Court the ways in which they provided both the intellectual supranational courts. On the other hand, the lack of of Justice introduced specific duties of cooperation apparatus and imagination for legalizing world affairs a deeper analysis of the ways in which other relevant between the judicial authorities of the issuing and ex- and the human resources to exercise the function actors (eg private parties, legislators and regulators) ecuting Member States, aimed at establishing whether of governing world affairs. We argue that this, what may interact and be involved in the dialogue hinders the requested person runs the risk of being subject we term the international law-polity (ILP), produces a the ability of courts to engage in a fruitful exchange. to inhuman or degrading treatment following to the double-faced model as it is both programmatic and The contributions of this panel address such issues, surrender. The presentation will focus on the problem- operational. The combination of both a utopian and a aiming to provide answers and, most importantly, ex- atic implications stemming from this “duty of judicial practical dimension implies that the model it is never amples in different areas of law, showing the added dialogue”. These have a strictly practical dimension fully realized, but nevertheless continuously being value of judicial dialogue. (concerning notably the impact on the procedure for practiced. Interestingly, the ILP model has turned out the execution of the warrant and on its overall lenght) to be very resilient and is to this day still the dominant Participants Karolina Podstawa but also a more conceptual one (insofar as the judge of framework global legal governance. Madalina Moraru execution is requested to cooperate, in essence, with Nicole Lazzerini the authorities of a State that is allegedly violating – or Karen J. Alter: The Contested Authority of Inter- Federica Casarosa allowing the violation of – fundamental rights). national Law Elena Carpanelli Where the rule of law exists, legal communities Moderator Deirdre Curtin Federica Casarosa: Judicial dialogue in con- become the keepers of the keys to legal authority, col- Room 8B-4-09 sumer protection area: when the CJUE is only lectively defining what law means, and how law applies the tip of the iceberg to a specific issue or case. The first part of this paper The analysis of judicial interactions among courts argues that international law’s authority meaningfully Karolina Podstawa: Weak courts in need of within the EU law context is usually taken from the resides in the national based legal communities, the support? – the EU-business partnership in de- perspective of a relationship between two courts, the actors who interpret, apply and give meaning to the law. fence (?) of online freedom of speech one presenting the preliminary ruling and the CJEU The second part of the paper focuses on contestation The paper explores the potential answers that may responding. This exchange then leads to an effect over international legal authority. International law co- be lay between the lines of judicial dialogue between on the subsequent decision of the referring court. exists with overlapping and competing domestic law, European Courts and the national courts for the full- However, neither the preliminary ruling nor the sub- which can be preferred because it is more local. And fledged protection of fundamental rights online. In sequent decision lays in a vacuum, rather they are it co-exists with parallel, overlapping and compet- particular we are dealing with instances where the part of a wider debate which usually involves several ing international legal regimes. Because there is no Courts or the executive assigned special role for pri- actors at the national level and, in some cases, may agreed upon mechanism to resolve hierarchy ques- vate companies. Starting off with the recent ECtHR impact also on foreign actors. These actors include tions when higher-order legal rules clash, international (Delfi v Estonia and MTE v Hungary) and the older not only courts (lower higher and constitutional ones) legal constraints can be legally circumvented through CJEU (Google Spain) case law, the paper attempts but also legislators and regulators which may have appeals to these rival higher-order legal authorities. at defining the standards of material and procedural different incentives to participate and react. Using Contestation over international takes three forms: 1) protection, which must be foreseen in order to make as example the Spanish jurisprudence related to the contestation among legal actors within the legal field the participation of private actors violation-proof and over-indebtness of consumers (in particular the Aziz seeking to define the content of international law and pressure-proof. and Sanchez Morcillo cases) and Italian jurisprudence the relation of specific international law to specific on mandatory mediation (following the Alassini case) national laws; 2) state based claims that the national Madalina Moraru: Judicial dialogue clarifying the paper will provide a description of the wider con- constitution is superior to international law; and 3) abstract EU concepts limiting fundamental cept of judicial dialogue. states maneuvering around the authority of specific rights: the case study of the “risk of abscond- international laws by creating or appealing to compet- ing” as legal grounds for immigration detention Elena Carpanelli: Mass-surveillance in the case ing international legal norms. The paper will investigate the contribution of hori- law of the ECJ and the ECtHR: towards dialogue zontal and vertical judicial dialogue to the clarification or not? of the concept of “risk of absconding” as grounds for Recently the Court of Justice of the European administrative detention in the field of asylum and Union and the European Court of Human Rights have

Concurring panels 66 Concurring panels 67 been called more and more frequently to scrutinize 28 fIduciary Constitutionalism to examine legal frameworks that may offer protection theory can contribute to the study of the EU and its indiscriminate data collections and mass surveillance to migrants but that do not rely on concepts of citizen- legal system. The consequence of employing such a practices vis-á-vis privacy and data protection con- There are few areas in EU integration law and policy in ship membership full equality human rights or strong perspective are a new and more central role for those cerns. Whilst both Courts are currently in the process which the Court of Justice of the European Union has notions of autonomy. To this effect the paper will ex- targeted by EU law, including a strengthening of their of consolidating their case law on the subject with not played a major role as a vehicle of integration and plore the structural features of fiduciary powers in the position before Court. several cases still pending, some of their most re- the ‘Area of Freedom Security and Justice’ (AFSJ) is context of the legal status of subjects under colonial cent decisions (see, in particular, ECJ Schrems; Digital no exception. Arguably, the Court of Justice considers rule. The paper will look for structural features when Ester Herlin-Karnell: Fiduciary Obligations Rights Ireland; ECtHR Zakharov v. Russia) already allow itself to be not only at the apex of the judicial integra- applied to the structure of contemporary migration law Courts and the European “Area of Freedom questioning whether we are now assisting to a new in- tion chain but also as a court with fiduciary obligations may paradoxically enhance the legal protection of mi- Security and Justice” stance of ‘horizontal judicial dialogue’. In this perspec- to protect EU law rights in all Member States via its ex- grants. Today there are roughly speaking two dominant There are few areas in EU integration law and policy tive, the proposed paper aims at exploring the issue tensive case law on trust in the autonomous European paradigms in law and political theory to understand in which the Court of Justice of the European Union by going beyond formal textual ‘cross-references’ and legal order. Therefore, according to some scholars and critically analyse migration law. On one end of has not played a major role as a vehicle of integra- rather focusing on whether the emerging approaches (Stone-Sweet and Brunel), the Court of Justice is not a the spectrum there is the particularistic view whereby tion and the “Area of Freedom Security and Justice” of the two European Courts converge in substance. simple agent of the Member States, but also a trustee migration law is understood as a means to establish (AFSJ) is no exception. Arguably, the Court of Justice Court of EU law at large. A trustee court is then a kind of and maintain the autonomy of a particular legal and considers itself to be not only at the apex of the judicial ‘super agent’ù empowered to enforce the law against political community. Its typical legal categories are integration chain but also as a court with fiduciary ob- the Member States themselves. The paper looks at sovereignty and citizenship. On the other end of the ligations to protect EU law rights in all Member States the question of fiduciary obligations and trusteeship spectrum there is the universalistic or cosmopolitan via its extensive case law on trust in the autonomous for courts from a constitutional perspective. A tentative view whereby migration law is contrasted with the au- European legal order. Therefore, according to some expression of trusteeship might be found in the AFSJ tonomy of individual human beings. The typical legal scholars (Stone-Sweet and Brunel), the Court of Jus- where the Court of Justice has to balance freedom category here is human rights. Both opposing views tice is not a simple agent of the Member States, but security and justice. The paper explores this question share two common values: autonomy and equality. Ei- also a trustee Court of EU law at large. A trustee court and to what extent national constitutional courts have ther migrants are not to be treated as equals and their is then a kind of “super agent”, empowered to enforce the same fiduciary obligation (Criddle and Fox-Decent) (individual or political) autonomy should not be pro- the law against the Member States themselves. The as the Court of Justice when the EU standard is not moted fully because they are no citizens (particularistic paper looks at the question of fiduciary obligations deemed robust enough according to their constitu- view). Or migrants should be treated as autonomous and trusteeship for courts from a constitutional per- tional culture and human rights protection. citizens because all human beings are equal (univer- spective. A tentative expression of trusteeship might salistic view). To escape this perennial controversy the be found in the AFSJ where the Court has to balance Participants Joshua Segev paper seeks legal frameworks that offer protection freedom, security and justice. The paper explores this Bas Schotel that do not rely on equality or even openly endorse question and to what extent, national constitutional Eljalill Tauschinsky inequality. Fiduciary powers may be an alternative way courts have the same fiduciary obligation (Criddle and Ester Herlin-Karnell to legally account for the interests of migrants seek- Fox-Decent) as the Court of Justice when the EU stan- Moderator Joshua Segev ing admission without the need to consider them as dard is not deemed robust enough according to their Room 8B-4-19 members equals let alone would be citizens. constitutional culture and human rights protection.

Eljalill Tauschinsky: Being a Subject to EU Law: Joshua Segev: The Historical Origin of the Fidu- What we should all learn from the Inuit Cases ciary-Based-Judicial-Review EU law is (in)famous for its difficulties in showing This article ventures into the historical origin of proper regard for individuals. For this the Inuit cases fiduciary-based-judicial-review (hereinafter: FBJ). The are paradigmatic, not only because of their discussion proponents of FBJ argue repeatedly that it is embed- of standing requirements, but more fundamentally ded in ancient Western political thought and the Anglo- for the lack of concern for the grievance that brought American constitutional tradition. The article shows the Inuit before Court. Throughout the various cases the indeterminate nature of the historical argument brought, the Court not once went to the heart of what of FBJ. The article focuses especially on the writings the Inuit experienced as a result of EU action, and of Plato and Locke and identify them as the “founding which they describe as the harm suffered. Fiduciary fathers” of FBJ. A careful examination of the heritage of law is famous for its conceptualisation of the position Plato and Locke shows that while some features of FBJ of the “fiduciary”. However, just as fundamental is its can be supported historically by the writings of Plato insight that fiduciaries act in a relationship. This insight and Locke, other central features of FBJ go against is useful in relation to the EU, which, with its focus on the grain of ideas associated with Plato and Locke in ‘objectives’, too often undermines the position of its contemporary discussions about judicial review. human subjects. The fiduciary perspective helps to explain why it is important to have a clear role for the Bas Schotel: The jus incluendi et excluendi trust persons subject of EU action, and which consequenc- and colonial empire: migration law as fiduciary es should be drawn from this. This contribution argues powers that the question of the role of individual subjects is The paper explores the state’s power to include fundamental for the EU legal order and fundamental and exclude migrants seeking admission to its territory for possibilities of judicial protection. This contribu- from the perspective of fiduciary powers. The goal is tion aims to give a novel perspective on what fiduciary

Concurring panels 68 Concurring panels 69 29 gender, Courts and reform of divorce law, essentially reframing them from lenged what he felt was the improper application of dissenting opinions in Obergefell, the supporters of Constitutions questions of gender equality into ‘moral issues’, has the procedural requirement on ordinary courts to shift the popular initiative thought that the issue of same not fared well for women. Relying on courts as guard- the burden of proof when reviewing the substantive sex marriage and the definition of family should be This panel aims to investigate how gender power struc- ians of women’s rights in these case, whether to green question of sex discrimination in employment. The subject to a popular referendum. This gave birth to tures are reflected and dealt with by constitutional light the participatory process or to certify its result, small sample size makes it difficult to come to any a serious public and political debate on gender and law across the globe. It discusses three of the most has also produced mixed results and, occasionally firm conclusions about the CCC’s understanding of the family powers structures. Questions related to the important aspects of constitutionalism where the so- backlash. I conclude that careful institutional design, sex equality and non-discrimination. The picture that biological versus the social differences between men cial gender power structures play a decisive role: the comparative learning, and looking beyond tokenism emerges from the available cases, is of a court that is and women, to women and men’s roles in the family or participation of women in constitution-making, gen- remain necessary in order to ensure that participatory capable of declaring unconstitutional clearly stated questions concerning family’s, or more correctly said der representation on the benches of constitutional mechanisms do indeed empower rather than fetter disparate treatment, but whose sensitivity to struc- women’s role in human reproduction and reproduc- courts and constitutional adjudication in gender (in) women as agents of constitutional change. tural bias and capability of understanding substantive tion of the nation were fiercely debated. This paper equality cases. For courts to challenge gender power equality is yet to be seen. The paper will look – for the aims to bring these debates to the light and critically relations, they need an equality-friendly constitution, Beverley Baines: Women Judges on Constitu- first time – at all the CCC decisions in which a breach discuss the position of the Romanian Constitutional which as Suteu argues, is achieved by incorporating tional Courts: Why Not Nine Women? of the sex equality guarantee was pleaded by appli- Court within these debates. For this aim the paper will women and women’s interests into the constitution- We should take Justice Ruth Bader Ginsburg’s cants. It will aim to answer the question whether the undertake a three-step approach. First, it will outline making process. Moreover, towards the same purpose, question “Why not nine women?” seriously. Justice limited sample is in itself not an accident, but whether the main facts of the two cases on same sex mar- Baines argues women justices merit much increased Ginsburg has served on the United States Supreme it means that the CCC has stayed away from more riage that arrived at the Constitutional Court last year. representation on “constitutional” courts. And lastly, Court since 1992 and her proposal is for an all-women complex cases brought by women, which challenge Second, it will place these facts in the historical and as Havelkovó and Brodealé show, the courts need Court. Western democracies do not appear poised deeper structural inequalities and require a more sub- social context of gender (in)equality in Romania and a favorable political and historical context in which to adopt her proposal; nor have they endorsed the stantive understanding of equality than do challenges lastly, will explain how does the position of the Con- to adjudicate. The panel does not have a local or re- prevailing proposals for parity by feminist scholars to clearly differentiating provisions or practices which stitutional Court influence the current staus quo and gional focus, but rather a global one, and discusses Erika Rackley and Sally Kenney or for feminist judges benefit women. This question is, of course, tied to the gender power relations under Romanian law. examples from Western Europe and North America as by Rosemary Hunter and Beatriz Kohen. To explain wider question about the role of the Constitutional well as from the Middle East Asia, Africa and Central why these proposals had some initial successes but Court and how active it is in reviewing state action, and Eastern Europe. are now stagnating, I frame them as deploying a “strat- especially of lower courts which impacts human rights. egy of containment”, a strategy defined by Jamie R. At a more general level, the paper will thus reflect on Participants Silvia Suteu Abrams to explain the loss of efficacy of feminist do- the usefulness of a method which looks at admissibil- Beverley Baines mestic violence reform. Situating Justice Ginsburg’s ity decisions. Barbara Havelková proposal as “moving beyond the strategy of contain- Elena Brodeală ment”, I draw on women’s judgments in Australian, Ca- Elena Brodeală: Gender and Family Power Moderator Ruth Rubio Marín nadian, German, Indian, Indonesian, Israeli, South Af- Structures under scrutiny before the Romanian Room 8B-4-33 rican, British and American constitutional cases about Constitutional Court or with significance for women’s equality. Whether writ- 2016 was a year without precedent for the Ro- ing as the only, often the first, woman on a national manian Constitutional Court. Not only that the Court Silvia Suteu: Women and Participatory Consti- “constitutional” court, or deciding cases where more asked the Court of Justice of the European Union for tution-making than one woman justice wrote a judgment, the rich- a preliminary ruling for the first time in its history, but it This paper critically analyses the capacity of partic- ness of their adjudicative diversity demonstrates that did so in a case regarding the recognition of same-sex ipatory mechanisms of constitutional reform to incor- women can comprehensively perform the tasks of marriage in Romania. Moreover, last year the Court porate and respond to the views of women. It aims to adjudicating constitutional cases. Far from posing a also issued a decision on the constitutionality of the provide initial answers to the question of whether and threat to democracy or the rule of law, the legacy of first citizens’ initiative meant to review the Romanian how participation in constitution-making delivers for women jurists’ voices illustrates how they promote Constitution. The initiative, backed by the know-how women. I first outline the contours of the debate sur- constitutional justice for women and men. and financing of US conservative organizations spe- rounding popular participation in constitution-making, cialized the constitutional litigation, aimed to replace identifying the benefits and potential pitfalls such par- Barbara Havelková: The Hidden Cases – the term ‘spouses’ from the text of Article 48 on family ticipation may yield. I then examine three case stud- What Can Admissibility Decision in Sex Equality with the expression ‘a man and a woman’. The pur- ies: the 2014 Scottish independence referendum, the Cases Reveal? pose of this revision would have been to ban same 2012-14 Irish Constitutional Convention, and the 2011- The paper looks at the sex equality case-law of sex marriages in Romania and protect what in the US 14 Tunisian constitution-making experience, analyzing the Czech Constitutional Court (‘CCC’) in the almost context are called ‘traditional family values’. The am- the level and nature of women’s participation in all 25 years of its existence. It discusses not only cases icus curie sent to the Romanian Constitutional Court by these processes. Subsequently, I evaluate the success which have been decided on merit, but identifies and human rights organizations like Amnesty International of participatory mechanisms such as referendums, assesses cases which the CCC turned down as in- or ILGA Europe emphasized that such a change was constitutional conventions, and public consultations admissible. Only five cases have so far been decided not needed, since the Romanian Civil Code adopted in empowering women as equal participants, and their on merit by the CCC, and all of them were brought in 2009 already prohibited same sex marriages. Yet, ability to ensure gender-sensitive deliberations. I also by men. The first three were challenges to legislative the US trained lawyers argued the contrary. In their raise questions as to whether participation should be measures benefiting women, all legacies of state- view, such a definition was needed in the constitutional resorted to in all cases of constitutional reform and the socialist protectionism towards women. The fourth text, so that the 2015 Obergefell v. Hodges case of the propensity for it to be an obstacle to rather than a ve- case was brought by a man claiming discrimination in US Supreme Court that legalized same sex marriage hicle for gender equality. Past experience tells us that the practice of ordinary courts to grant child custody across the whole US could not be replicated in the opening up to citizen input issues such as abortion or to mothers. In the fifth case, the male claimant chal- Romanian context. Moreover, like the authors of the

Concurring panels 70 Concurring panels 71 30 human rights and the rule of (Arts. 2 and 6 TEU and CFR), ‘Security’ has hitherto (see eg Costello “Courting Access to Asylum: Recent 31 Im ages of judicial self- law in the field of asylum and been characterized as a policy objective, whose at- Supranational Jurisprudence Explored” (2013) 12(4) governance. Normative immigration tainment remained subordinated to ‘respect for fun- Human Rights Law Review 287). While the early deci- justifications and socio- damental rights’ (Art. 67(1) TFEU). The suggestion by sions of the Luxembourg court firmly underlined the political roots Immigration law is an important source of public law. the CJEU in recent decisions that the effectiveness human rights basis for its decision-making in this This should come as no surprise: immigration law en- of the rights of migrants may be put on balance with arena (eg Bundesrepublik Deutschland v Y (C-71/11), The panel addresses judicial self-governance, under- gages the core of state power, with border policing, the effectiveness of removals in the realm of return and Z (C-99/11) Court of Justice of the EU, 5 September stood as any kind of participation of judges in courts’ detention and deportation all within its ambit. Immigra- policy (See Case C-61/11 PPU El Dridi [2011] I-3015. 2012 and A B & C v Staatssecretaris van Veiligheid en administration. Under this meaning, the concept is tion law can also be an important site for the develop- Confirmed in Case C-329/11 Achughbabian [2011] Justitie (C-148/13 149/13 & 150/13) Court of Justice of broader than that of self-government, i.e. the domina- ment of human rights principles, particularly where it is ECR I-12695 (general rule); Case C-430/11 Md Sagor the EU, 2 December 2014) the scope and impact of tion of judges in judicial administration. The aim is to argued that the removal of a person to a third country [2012] ECLI:EU:C:2012:777 (irregular migrant); Case the right to asylum pursuant to Article 18 of the Charter have a more broadly informed understanding of self- would result in the violation of their fundamental rights C-534/11 Arslan [2013] ECLI:EU:C:2013:343 (asylum of Fundamental Rights is, to date, relatively under- governance, which is not per se a new or exceptional in that country. The perpetual tension between the seeker)), if confirmed and expanded to other areas, explored in EU law. The Strasbourg court, on the other phenomenon. The panel focuses on: a) the normative sovereign power to regulate migration and citizenship, may undermine the value of fundamental rights within hand, has interpreted Article 3ECHR so as to give rise values on which self-governance arrangements are and individual rights, is at the heart of most immigra- the EU legal order, potentially subverting the rule of law. to extensive obligations on States in respect of non- grounded and justified; b) the substantive relationship tion decisions. Against this background, this panel will refoulement (eg Chahal v United Kingdom (1997) 23 between political and judicial lite within the broader explore trends in judicial decision-making in asylum Cliodhna Murphy: Testing the Limits of State EHRR 413 and Saadi v Italy (2009) 49 EHRR 30), but socio-political context under which self-governance and immigration cases in European and Irish law and Power: Human Rights or the Rule of Law as a to date has declined to apply the Article 6 right to a arrangements have been strengthened or reduced will examine the extent to which the courts refer to Deciding Factor in Immigration Cases? fair hearing in the asylum context (Maaouia v France or changed over time. Besides avoiding explicit refer- the rule of law and human rights in imposing limits on Immigration law is an important source of public [2001] EHRR 42) in the absence of a right to asylum in ence to the normatively charged concept of self-gov- state action in this sphere. law as illustrated by the far-reaching implications of the Council of Europe framework. This paper will con- ernment, the proposal steps back from mainstream the recent Supreme Court decisions in Meadows v sider the role of both the Luxembourg and Strasbourg analysis based of formal typified models of judicial Participants Violeta Moreno-Lax Minister for Justice Equality and Law Reform and Mal- courts in safeguarding the right to asylum in the light of governance, be it their specific impact or the short- Cliodhna Murphy lak v Minister for Justice Equality and Law Reform. This Article 18CFR, with a focus on challenges to the rule of term dynamics shaping them. Institutional models Patricia Brazil should come as no surprise: immigration law engages law posed by pushbacks (as in Hirsi Jamaa v Italy EC- may obviously matter, but are not of direct concern Moderator David Fennelly the core of state power with border policing, detention tHR 23 February 2012), the right to asylum and the right here. The panel rather looks at specific moments of Room 8B-4-43 and deportation all within its ambit. Immigration law to a fair hearing (see Kneebone ed Refugees, Asylum the recent or past judicial history of selected jurisdic- can also be an important site for the development of Seekers and the Rule of Law (Cambridge University tions investigating the structural factors revealing the human rights principles, particularly where it is argued Press 2009) and the potential impact of the right to breaking points in politico-judicial relations determin- Violeta Moreno-Lax: Reversing the Rule of Law? that the removal of a person to a third country would asylum on the issue of safe passage/humanitarian ing governance arrangements. From Effective Rights to Effective Removal The result in the violation of their constitutional or ECHR visas (Case C-638/16 PPU X and X v átat Belge), and Changing Nature of the Principle of Effective- rights in that country. The perpetual tension between will critically assess the limits of each court’s compe- Participants Simone Benvenuti ness in the Area of Migrant Rights the sovereign power to regulate migration and citizen- tence in this important, but highly contested, context. Nino Tsereteli Since the introduction of the ‘Area of Freedom ship, and individual rights, is at the heart of most immi- Giulia Aravantinou Leonidi Security and Justice’ (AFSJ) as an objective of Euro- gration decisions. Against this background this paper Jørn Øyrehagen Sunde pean integration (Art. 3(2) TEU), there has been a subtle explores trends in judicial decision-making in immigra- Moderator Davide Paris transformation in the understanding of the principle of tion cases in Ireland and examines the extent to which Room 8B-4-49 effectiveness by the Court of Justice (CJEU) in relation the courts refer to: (1) the rule of law; and (2) human to the fundamental rights of migrants (For the general rights, in imposing limits on state action in this sphere. trend see Opinion 2/13 [2014] ECLI:EU:C:2014:2454). It is shown that in immigration cases, the Courts are Simone Benvenuti: Images of judicial self-gov- While in other areas of EU law the principle of effec- most comfortable in “saying no” to the State when ernance. A comparative and historical study of tiveness is invoked for teleological purposes, in view there is a rule of law basis for the decision. This has three main jurisdictions: France, United King- of the fulsome realization of fundamental rights (See resulted in reasonably strong protection for migrants’ dom, United States e.g. Case C-432/05 Unibet [2007] ECR I-2271, on ef- rights in certain areas including: procedural fairness; Historically, any country experienced some kind fective judicial protection), in the field of migration and issues around the criminal enforcement of immigra- of participation of judges in courts’ administration. asylum effectiveness appears to increasingly relate to tion law; and deportation cases with a strong civil and To mention few examples, in a mostly judges’ hostile the ultimate fulfilment of policy objectives of deter- political rights dimension. However, a sharp line be- country as France, the Cour de cassation was en- rence and control (See e.g. Joined Cases C-411/10 and tween civil and political rights and socio-economic trusted in the late XIX century the power to discipline C-493/10 N.S. & M.E [2011] ECR I-13905). This paper rights together with continued judicial deference to judges. In Italy, the precursor of today’s judicial coun- proposes to analyse this trend through a critical ex- the executive power to regulate immigration, has ham- cils emerged at the very beginning of the last century. amination of the case law of the CJEU on the Returns pered the development of a truly human-rights based In the United States, the Administrative Office of the Directive (Case C-357/09 PPU Kadzoev [2009] ECR body of jurisprudence in immigration law. U.S. Courts was established under the Conference of I-11189, and subsequent case law). The objective is to Senior Circuit Judges in the late 1930s. Even before, unveil not only the tension between security-oriented Patricia Brazil: The Right to Asylum in European in the same as well as in other countries, formal and goals and fundamental right, but also the inherent Law: Underexplored Terrain? informal arrangements allowed the participation of danger that the elevation of ‘Security’ to the rank of In the absence of an international refugee court, judges in courts’ administration. This paper aims legal principles through the re-conceptualisation of the significant role of the Court of Justice of the Euro- at providing a comparative and historical overview ‘effectiveness’ entails. Whereas ‘Freedom’ and ‘Justice’ pean Union and the European Court of Human Rights of the incorporation or removal of self-governance constitute two of the values on which the EU is founded as supranational asylum courts has been welcomed arrangements in three classical jurisdictions: France,

Concurring panels 72 Concurring panels 73 United Kingdom, and United States. By referring to Giulia Aravantinou Leonidi: Peculiarities of the the judiciary well protected within the present system, specific moments of their judicial history, its aim is to Greek jurisdiction within the Southern Euro- and did not advocate a new role for the judiciary. The highlight the relation between judges’ participation pean tradition: the weight of political and eco- Norwegian Court Administration, established in 2002, in judicial governance and the underlying normative nomic environment on self-governance has itself been increasingly concerned with the fact and socio-political motivations. Specific attention The Greek jurisdiction is often neglected when it that it is not involved in the national budget process, will be specifically devoted to two phenomena, as comes to studies on judicial administration; still it is a and hence is an economic bound organ protecting the revealing of the long-term developments in courts’ very instructive one when it comes to highlighting the independence of the judiciary. While the budget situa- administration. First, the increasing formalization of interplay between normative values, relations between tion also worries judges, they see the ideology of New self-governance mechanisms in contemporary legal the political and the judicial élite and related judicial Public Management as an independence problem. systems, which arguably serves different purposes. governments arrangements. This paper will retrace the From a normative perspective, the need is there to lines of developments of these three interconnected promote the values of independence, accountability, dimensions in the last forty years. The starting point is legitimacy, or to accomplish a specific understand- the incorporation in the then new democratic Constitu- ing of separation of powers. From a socio-political tion of provisions relating to a body of judicial gover- perspective, there is a need to make explicit a nance in which judges are represented, inspired by the proper systemic balance in politico-judicial rela- Italian judicial council. Going beyond a static picture, tion, within increasingly complex and fragmented the paper aims at stressing the dynamic framework societies. Second, the extension of the search for characterizing the Greek jurisdiction between 1974-75 balance to the society at large, with the hesitant but and 2015, and how judicial governance reforms and still meaningful formal inclusion of civil society and debates on judicial governance reforms underwent legal professions representatives in the administra- different phases in which the problematic relationship tion of courts. of the judicial lite with the components of a bipolar political system entered into play. Secondly, it will also Nino Tsereteli: Learning from the post-soviet show how this in turn influenced the discourse on the constellation: Russia, Ukraine, and Georgia normative groundings of (possible) reforms in judicial This paper will address the evolution of judicial governance, and the differences and similarities in self-governance in the post-Soviet countries since this respect with other Southern European countries. early 1990s until now. Specifically, it will focus on A specific focus will be in the end devoted to how the (still ongoing) judicial reforms in Russia, Ukraine and last ten years’ political crisis, including the repercus- Georgia. It will explain how the need for breaking sions on the party system, and economic crisis af- away from the past dependency of judges on political fected the debate on reforms of judicial governance and judicial superiors (or creating the appearance and how they interacted with existing normative and thereof) shaped the agenda of judicial reforms and institutional traditions. made judicial empowerment relevant. It will follow up subsequent waves of reforms (some of which Jørn Øyrehagen Sunde: Judicial self-gover- could have been labelled as “counter reforms”) in the nance in Norway 1999-2017: human Rights, three countries, up to the latest significant changes emotions, democracy, budget and New Public in Ukraine in early January 2017 and in Georgia in Management February 2017. In addressing these reforms, it will The paper will address the factors determining look into how views of external and internal actors reforms in Norwegian judicial administration in the blended and influenced their outcome. It will highlight last twenty years, within the context of the Northern how the values, such as independence, accountabil- European traditions. The governance of Norwegian ity and legitimacy of judiciary, informed regulation of courts, including the de facto appointment of judges judicial participation in matters of court administra- in all instances, was done by the Civil Division of the tion and observe how the risk of granting too much or Ministry of Justice. Reforms were made in 1990 in the not enough powers to judges motivated the search appointment procedure to secure independence of for more balanced solutions (e.g. engaging not only the judiciary, and in 1996 in the general governance of political and judicial elites, but also the public). It will the courts, all in light of the European Human Rights identify the correlation between changes in compo- Convention. However, in 1999 a broad government sition and in powers of the bodies responsible for appointed committee by a tiny majority suggested to court administration to see whether increased rep- establish an independent Norwegian Court Adminis- resentation of judges in the relevant bodies of court tration. While emotions ran high in the debates in the administration also led to granting them meaningful committee, the Parliament without much ado passed decision-making power. Finally, it will assess how the necessary legislation. For the majority in the com- the soviet heritage (existence of informal practices mittee the decisive argument was the independence alongside the laws as well as mindset of judges) in- of the judiciary. More independence would enable the fluenced the process of transformation and actual judiciary to perform review of administrative and leg- functioning of the institutions. islative acts, and in this way contribute to the modern democracy. The minority found the independence of

Concurring panels 74 Concurring panels 75 32 Bu ilding the Constitution – 33 Beyo nd “Dialogue” and the thursday Panel The practice of constitutional Legal/Political Consti­ interpretation in post- tutional Debate: apartheid South Africa – Towards Collaborative 6 july 2017 session Book Discussion Constitutionalism?

09:00 – 10:30 2 South Africa’s transformation from apartheid state Under a well-known strand of contemporary public to constitutional democracy is widely celebrated law scholarship judicial decisions on rights are seen and studied. But existing accounts of South Africa’s as not necessarily ultimately determinative but rather constitutionalism focus on the Constitutional Court, as part of a broader inter-institutional ‘dialogue’ on while the ruling African National Congress has been the meaning of and permitted limitations to protected consigned to the role of threat. This panel critically constitutional rights. Stephen Gardbaum’s ‘New Com- examines this view from a comparative perspective, monwealth Model’ shares some of these insights but taking as its starting point a revisionary account, Build- identifies balance rather than dialogue as a key fea- ing the Constitution, published in December 2016 by ture of this mode of constitutional ordering. However Cambridge University Press. The book draws on his- both the ‘dialogue’ and Gardbaum models have been torical and empirical sources to show how support subject to recent criticism. Eoin Carolan (2016) has from the ANC government and other political actors identified a range of problems with what it sees as the has underpinned the work of the Court, including many idealised dialogue model while Gavin Phillipson has of its landmark cases standardly understood as judi- coined the notion of ‘negative dialogue’ (2011 – below) cial achievements. Current accounts see the Court as Meanwhile Jeff King has made a number of important overseer of a negotiated constitutional compromise criticisms of Gardbaum’s alternative model (2015). The or as the looked-to guardian against the rising threat purpose of this panel is to reflect on whether the best of the ANC. In reality, Building the Constitution, South way forward for scholarship in this area is to refine or African successes have been built on a broader and replace the above models. It will consider the sug- more admirable constitutional politics to a degree no gestion made by several scholars of moving to a no- previous account has acknowledged. The panel will tion of ‘collaborative constitutionalism’ – a move that assess this argument in conversation with the book’s would also signal a turn away from what has become author, and consider its implications for our under- a polarised debate between proponents of legal and standing of the South Africa case and of courts in political constitutionalism to a more realistic and rea- emerging systems more generally. sonable approach.

Participants Mark Tushnet Participants Jeff King Niels Petersen Eoin Carolan Or Bassok Gavin Phillipson James Fowkes Moderator Stephen Gardbaum Moderator Jaclyn L. Neo Room 4B-2-34 Room 4B-2-22

Jeff King: The Requirement of Interpretive Mark Tushnet: Remarks from a US comparative Finality and Judicial Restraint lawyer The first paper by Professor Jeff King (University College London) will explore some of the difficulties Niels Petersen: Remarks from a German com- of the dialogue metaphor and with some of the pro- parative lawyer posals at the core of the New Commonwealth Model of constitutionalism as articulated in Gardbaum’s ap- Or Bassok: Remarks from the perspective of US proach. King’s central critique of both will focus on the constitutional theory need for interpretive finality provided by courts of law and the need for political bodies to respect legal find- James Fowkes: Remarks from the author ings in a system respecting the separation of powers. The iterative aspect of dialogue theory – which is also central in Gardbaum’s approach – risks undermining the importance of both legality and the perceived (and justified) political perception that the rule of law re- quires accepting legal findings on matters of process as well as on rights. Nevertheless, as the paper will explain, the critique of the New Model is something of internal one insofar as King broadly supports the idea of collaborative constitutionalism (as expressed in his

Concurring panels 76 Concurring panels 77 own earlier work). He will argue that doctrines of judi- stitutional Courts in a Changing Landscape (2016); 34 constitutional review on constitutional law is the optimal direction of travel. cial restraint that modulate the relationship between and ‘The relationship between judicial Remedies and the grounds of fundamental Additionally, the paper puts forward the suggestion courts, government and legislatures without renounc- the separation of powers: collaborative constitution- rights and the rule of law that the concept of national constitutional identity is ing legality are a better way to sustain and fortify the alism and the suspended declaration of invalidity’ in the Member States and in not well placed to characterise the rights and values collaborative constitution. Jeff King is a Professor of (2011) 46 Irish Jurist 180. the EU legal order at stake in recent national and EU adjudication, which Law at University College London, Co-Editor of the often represent common (continental) European con- United Kingdom Constitutional Law Blog, Executive Gavin Phillipson: Getting real about dialogue In the transnational constitutional discourse, national stitutional achievements. Member of the UK Constitutional Law Association, and collaboration: the reality of the political constitutional courts have typically come to be per- Editorial Committee Member of the journal Public Law, contestation of rights ceived in a negative light as obstacles to closer inte- Mariana Rodrigues Canotilho and Rui Lanceiro: and Co-Editor of the journal Current Legal Problems. In the third paper, Gavin Phillipson will explain how gration and co-operation. At the same time, a small The Portuguese Constitutional Court and fun- He is also the author of Judging Social Rights (CUP his previous work has found instances where dialogue but growing number of scholars have expressed con- damental rights: on counter-limits and the con- 2012), and co-editor of the forthcoming volumes The has become negative (Phillipson, 2011) or has simply cern that the constitutional courts have in fact been tinental European constitutional tradition Cambridge Handbook of Deliberative Constitutional- not existed – as where the political response to judicial silent, especially with regard to the erosion of rights, The Portuguese Constitutional Court has become ism (CUP 2018) and Parliament and the Law (2nd Edn) findings of rights violations has been to ‘weaponise’ the rule of law and democracy in the EU economic famous over the last six years for its so-called ‘crisis (Hart 2017). He has published a substantial review- them, in order to attack the legitimacy of the judicial crisis governance. This panel brings together some jurisprudence’: a series of constitutional decisions re- article of Stephen Gardbuam’s work entitled ‘Rights role in protecting rights and of the rights instruments of these scholars and explores the suggestion that garding legislative measures approved in the context and the Rule of Law in Third Way Constitutionalism’ under which judges make such rulings (Phillipson, the problem is even more severe if the starting point of the economic and social crisis, many of them as (2015) 30(1) Constitutional Commentary 101. 2013). But he has also recently shown how some in- is the continental European constitutional tradition a consequence of the Memoranda of Understand- stances of judicial protection of rights through inter- rather than autonomous EU constitutional law. The ing that the country signed with the infamous Troika Eoin Carolan: A metaphorical muddle: why con- pretation can be regarded as successful instances panel aims to start a discussion about the future role of (European Commission ECB and IMF). The Court’s flict (not dialogue) is the point of judicial power of ‘dialogic’ protection (Phillipson, 2014). From this constitutional courts in the context of EU governance decisions were heavily discussed by scholars, politi- The second paper, by Eoin Carolan (UCD), is con- he will seek to suggest that theories like ‘dialogue’ or and the consequences if constitutional review by them cians and in the media, at times in stronger terms than cerned with the conference call’s reference to an en- ‘New Commonwealth’ need to become more nuanced is increasingly displaced. is usually seen in such contexts. The Court was even during question of public power: how, and under what and granular, in order to identify particular issues or accused of ‘judicial activism’ and it was said that its conditions, do courts enjoy the power, legitimacy and circumstances in which fruitful collaboration between Participants Anneli Albi actions could potentially lead to a default or a sec- independence necessary to serve as a meaningful the judicial and democratic branches of government Mariana Rodrigues Canotilho ond bail-out, entailing ‘serious economic and social check on national actors? The traditional dichotomy are possible and those in which outright conflict, or and Rui Lanceiro costs’. Time has proven the critics wrong so far, at between legal or political constitutionalism has been misuse of judicial rulings, are to be expected. In this Aida Torres Pérez least with regard to these latter fears. Looking at these challenged in recent times by the development of regard, he will claim that aspects both of Gardbuam’s Dimitry Kochenov events from the perspective of 2017 in an EU shaken new more nuanced models of legislative-judicial model and some of King’s criticism of it both rest on Moderator Christian Joerges by uncertainty and vast political problems, there is now relations. The new Commonwealth model of con- idealised premises. While a turn to stressing collab- Room 4B-2-58 sufficient distance to analyse the above case law. In stitutionalism and other dialogical accounts have orative constitutionalism would be a welcome one, he the face of an apparent conflict, the Court has upheld been the most influential in the field. One of their will suggest that it needs to engage fully with, rather constitutionally guaranteed fundamental rights and chief attractions has been the way that these models than glossing over, the sometimes uncomfortable re- Anneli Albi: Constitutional review on the principles against measures seen as imperative to de-emphasise the conflict between legislative and alities of political engagement with rights issues and grounds of rights and the rule of law in the three good economic governance by EU institutions and the judicial supremacy that featured prominently in the the judicial role. Gavin Phillipson has held a Chair in main constitutional cultures of the EU Member governments of certain Member States. By doing so debate between legal and political constitutionalism. Law at Durham University since 2007. His recent work States: The impact of relocation to the ECJ the Court has left open important questions concern- This paper argues that this approach (while welcome) in this area includes: ‘Covert derogations and judicial The paper presents some of the findings of the ing issues that belong to the academic debate. First of rests on the same assumption that a constitutional deference: redefining liberty and due process rights in ERC funded large-scale comparative research proj- all, the Court has never justified its reasoning with any model must ultimately privilege either judicial or po- counter-terrorism law and beyond’ (2011) 56(4) McGill ect ‘The Role of National Constitutions in European kind of Euro-sceptic framework. On the contrary, it has litical power. This paper (briefly) challenges that as- Law Journal 864-918 (with Helen Fenwick); ‘Deference and Global Governance’. It explores the observation always affirmed the openness of Portugal’s legal order sumption before making the case for an alternative and Dialogue in the Real-World Counter-Terrorism of some scholars that in European economic co- to EU law and accepted that the executive and legisla- model of judicial-political relationships (‘collaborative Context’ in de Londras and Davis (eds) Critical Debates operation, a shift has occurred towards a thin, weak, tive powers are committed to the European integration constitutionalism’). Unlike dialogical theories that aim on Counter-Terrorist Judicial Review (CUP, 2014); ‘The procedural version of judicial review, with increased process. However, it has declared the unconstitution- (implicitly) to solve conflict this model argues that Human Rights Act Dialogue and Constitutional Prin- difficulty for individuals to challenge public decisions ality of laws that have enacted public policies openly conflict between these institutions is capable of be- ciples’ in R. Masterman and I. Leigh (eds), The United (Harlow Galera). The paper outlines the three main demanded by the EU, justifying its decisions not by ing normatively and democratically justified in a way Kingdom’s Statutory Bill of Rights: Constitutional and approaches to constitutional review within the EU quirky constitutional norms that could be regarded as that speaks to the conference call’s concern about Comparative Perspectives (Proceedings of the British Member States, along with statistical data regarding country-specific and part of the national constitutional the legitimacy (and authority) of judicial power. Eoin Academy/OUP, 2013). the rate and grounds of annulment of legal measures. identity, but on the basis of fundamental principles that Carolan is Associate Professor in University College The paper observes that the relocation of judicial re- are common to the European constitutional tradition: Dublin, where he lectures and researches in consti- view to the ECJ has put under strain the previously equality, legitimate expectations and proportionality. tutional law and theory, media law, and privacy and established standard of constitutional review in the The way in which these principles have been inter- data protection. His recent work in the field includes post-totalitarian European constitutional tradition from preted is not uncommon, at least not in the context ‘Dialogue isn’t working: the case for collaboration as a Germany and Southern Europe to Central and Eastern of continental European law. Is it then the case that model of legislative-judicial relations’ (2016) 36 Legal Europe, while it has enhanced judicial review in the the national legal orders are more effective than the Studies 209; ‘Leaving behind the Commonwealth evolutionary/political type of constitutional systems European standard in protecting fundamental social model of rights review: Ireland as a model of collab- (e.g. the UK the Netherlands Nordic countries). The rights especially in the areas of access to education orative constitutionalism’ in Marie Luce Paris & John paper invites discussion on to what extent uniformi- and healthcare, or protection of workers’ rights? Can Bell (eds). Rights-Based Constitutional Review – Con- sation through the autonomous, self-referential EU such national protection function in the context of EU

Concurring panels 78 Concurring panels 79 law as a counter-limit to the application of European it to friendly observers under the label of the ‘Rule of 35 dIAlogues between intends to show how comparable these courts are rules of economic governance? Should these stronger Law’, while there exist compelling reasons to distin- courts: human rights looking at their judicial review system and how they standards of fundamental rights and principles be guish the two. To do so, Gianluigi Palombella’s vision constitutionalism impact in the transitional process to democracy and incorporated into the EU legal order? The paper aims of the Rule of Law as an institutional ideal is employed, in the engines of powers. to propose some answers to these questions. implying that the law – gubernaculum – should always Plural and multilevel constitutionalism implies inter- be controlled by other law – jurisdictio – lying outwith nal dialogues within each constitutional domain and Estefania M. de Queiroz Barboza: The (non) use Aida Torres Pérez: Judicial Review by the CJEU the sovereign’s reach. Unable to boast any jurisdictio external dialogues among each one of them having of a comparative constitutional method in the at Times of Crisis expressly intended as the legal aspect of positive law in mind the ius commune idea and the centrality of case selection of Brazilian Constitutional Court. The goal of this paper is to examine the role of the beyond the internal market logic programmed into the human rights. Constitutional jurisdiction is no longer a This paper discusses the experience of “migration CJEU in reviewing measures adopted in the context Treaties, the EU emerges as a somewhat rudimen- matter of local constitutionalism but it has to deal with of constitutional ideas” as far as Brazilian Supreme of the economic and social crisis in Europe. Judicial tary legal system, with no strong guarantees of legal human rights and global constitutionalism or rather Court has made use of comparative cases, but lack- review of the acts of public authorities to check that non-domination extending beyond the Treaty text. My a “human rights constitutionalism”. A new agenda for ing a methodological consistence. Brazilian Supreme they do not overstep their powers or encroach upon paper demonstrates the clear negative consequences public law in the twentieth century merges the global Court has constantly made use of foreign constitutional fundamental rights is an essential feature of the rule of the prevalent deficient understanding of the Rule and the local by means of constitutional incorpora- cases in its decisions but it rarely pays due attention to of law. At the same time, the exceptionality of the cri- of Law for both constitutional levels: the EU and the tion of international human rights. The challenge is the context and nuances that have given rise to similar sis the heterogeneous array of sources of Euro-crisis Member States. One of the curious outcomes of the given to International Courts, Supreme Courts and or alternative interpretation or practice of constitutional law, and the blurring line between the national supra- current reading of the Rule of Law in the EU is that this local tribunals in order to accomplish this new agenda norms, which becomes a random selection of cases to national and international spheres have hindered a principle can be presented as demanding to trump the in a dialogical way. support a decision or an academic argument. Recently, robust review by the CJEU and the full protection of values of the Treaties as well as of the national consti- Brazil’s Supreme Court decision on the presumption fundamental rights. First, the paper will analyse the tutions in the name of upholding formal organisational Participants Melina Girardi Fachin of innocence referred to foreign precedents without evolution of the CJEU case law in this field to under- considerations which seemingly underpin the EU legal Vera Karam de Chueiri taking in account the necessary methodology to do stand the mode of review exercised by the CJEU and system, resulting in anarchical confusion. Once the Estefania M. de Queiroz Barboza it and the difference among constitutional contexts. the way in which the CJEU demarcates its own jurisdic- rhetoric of the promotion of democracy is added to Rodrigo Kanayama, Tomio tion. In Pringle (C-370/12), the CJEU declared that the the picture, the problematic essence of the EU’s Rule Fabrício, Angela Costaldello and Rodrigo Kanayama, Tomio Fabrício, Angela Member States were not implementing EU law when of Law acquires even more visible and potentially dan- Ilton Robl Filho Costaldello and Ilton Robl Filho: Comparative they enacted the ESM Treaty and that therefore the gerous undertones. Maria Francisca Miranda Coutinho studies on Constitutional Courts: the role of Charter was not applicable. Also, the CJEU stepped Moderator Melina Girardi Fachin and abstract judicial review at consensualism of back from reviewing state austerity measures in sev- Vera Karam de Chueiri decisional process and on democratic stability eral preliminary references brought by Romanian and Room 7C-2-24 in Brazil Mexico Spain and Portugal Portuguese courts that questioned the compatibility The Iberian Countries (Spain and Portugal) created between domestic legislation cutting public sector the Constitutional Courts and the two biggest Latin pay and several Charter rights. The CJEU laconically Melina Girardi Fachin: Democratic dialogues on American federations (Brazil and Mexico) forged or declared that it lacked jurisdiction since the domestic human rights constitutionalism expanded the abstract judicial review in their Supreme courts had failed to specify the connection with EU The contemporary conception of human rights Courts in the 1980’s and 1990’s, which were the demo- law. At the same time,in a recent and unprecedented inaugurated a new sphere of responsibility in the cratic consolidation decades. Despite the similarities judgment (Ledra Advertising C 8/15 P to C 10/15 P) the implementation of these rights, which ceased to be between these countries, the degree of influence on CJEU opened a new door by confirming the applica- of the exclusive domain of constitutional and state the decisional process (the relationship between gov- tion of the Charter to the Commission and the ECB act- sovereignty. In this way, a new public law – based on the ernment and parliaments, and parliamentary minori- ing under the ESM Treaty. The judgment may well open coexistence of several parallel and congruent orders – ties and parliamentary majorities) are not identical, as an avenue for further actions that (indirectly) challenge emerges gravitating around the pro person principle. is the degree of political consensualism. In this sense, measures adopted under bailout programmes against It is imperative that the internal and external angles the central questions are: How effective is the abstract the backdrop of the Charter. The paper will argue that communicate with each other for the consolidation of judicial review on the decisional process? What are the complexity of the Euro-crisis law demands that the the democratic constitutionalism of human rights. The the differences? Do the Constitutional Courts interfere CJEU move beyond a formalistic approach to judicial horizontal dialogues are marked by the exchange and and cancel the decisions of the other branches and review and intensify collaboration with domestic courts free argumentative integration between the agents political institutions with no distinction or prejudice to avoid gaps in judicial protection that jeopardise the and interpreters. Openness to international jurisdic- or they support the decisions of the majority? How rule of law. tions reveals the vertical perspective articulated in the autonomous are the Courts and their decisions? Is the internalization of international norms and in the con- abstract judicial review an important ingredient for the Dimitry Kochenov: EU Law without the Rule of Law ventionality control. The purpose of this coexistence is democracy stability, for the decisions capabilities of I aim to provide a critical analysis of the Rule of to expand and enhance the protection of human rights, the government and majorities, and for the institutional Law in the EU, concluding that the Union is not driven based on a plural complex impure and mixed logic. consensualism? The Law and the Political Science by the Rule of Law as an institutional ideal. Instead, achieved a degree of knowledge about the participa- the Union deploys the ‘Rule of Law’ viewed to a large Vera Karam de Chueiri: South-south dialogue: tion of Courts on the decisional process. However, the extent through the lens of the autonomy of the EU Brazilian and South African supreme court in comparative studies about Latin American and Iberian legal order, to shield itself from potential internal and times or (re)democratization Courts, which use empirical data, are rare. Therefore, external contestation. This is precisely the opposite Brazil and South-Africa experienced a transition to the aim is to determine the role of the abstract judicial of what the classical understanding of the Rule of Law democracy and both constitutional courts have had a review on democratic consolidation and on the deci- would imply. The Union thus suffers, it is argued, as a significant role in this process merging political and sional capability of all these countries. The research result of misrepresenting legality at the EU level selling judicial issues in some landmark decisions. The paper presents, in a comparative view: 1) AÇÃO DIRETA DE

Concurring panels 80 Concurring panels 81 INCONSTITUCIONALIDADE in Brazil (5.457 lawsuits, 36 conceptual and interpretive the concept of constitutional change b) to draw out that deliberate attempts to effect significant consti- 1988-2016); 2) Acciones de Inconstitucionalidad in aspects of constitutional that the mainstream patterns of constitutional change tutional change in a manner calculated to circumvent Mexico (1.146 lawsuits, 1994/2015); 3) Recursos de In- change may be revisited from a realist/hermeneutical point of the formal amendment process – such as the Abe constitucionalidad in Spain (643 lawsuits, 1980-2016; view c) to provide concrete examples, mainly from the government’s reinterpretation effort in Japan – are and 4) Fiscalizacao Successiva in Portugal (563 law- Constitutional change can take various forms and field of judicial review, that verify the abovementioned prima facie unauthorized and illegitimate at the time suits, 1983-2016), besides the powers and institutional meaning. It could be formal, informal, judicially made hypothesis and imply an interpretative concept of the they occur. Moreover, only the most explicit and de- prerogatives assigned to Constitutional Courts and or through formal amendment mechanism. Various constitution and its normativity. liberate expressions of popular sovereignty can serve Supreme Courts, whose are capable to realize the constitutional concepts influence our understanding to legitimate such changes. But while such deliberate abstract judicial review. To understand the impacts of of constitutional change. But constitutional change Juliano Zaiden Benvindo: Conceptual Constitu- informal change will always remain unauthorized, it the abstract judicial review, the methodology of the can also influence how we grasp such concepts. This tional Change in Latin America may be legitimated with the passage of time, though analysis will be: (i) institutional variables (the actors panel is aimed to explore various conceptual and Political crises are a rich source for constitutional I argue it may and should take longer than for less different types of lawsuits, the procedure to nominate interpretive aspects of constitutional change, from law. Whether damaging or beneficial for democracies, contested forms of change. judges, etc.) (ii) politics variables (composition of the comparative (for example Latin America and Japan) they provide the perfect breeding ground for placing parliament/government, coalitions, decision stability, and theoretical perspectives. traditional concepts on the edge of their underlying Nadiv Mordechay: Discussant nomination of judges, government or parliamentary rationale. More interesting, they unfold the undeni- majority opinion on unconstitutionality/constitutionality Participants George Karavokyris able coupling between change and instability, which of the law). The studies, specifically analyses the em- Juliano Zaiden Benvindo is paradoxically neglected by leading constitutional pirical validity of this hypothesis: if the Courts do not Craig Martin theories that provide an evolutionary approach to decide against the majorities or against the rights and Nadiv Mordechay constitutional change. Drawing from some examples interests of the central government. The preliminary Moderator Yvonne Tew in Latin America, this paper aims to challenge com- conclusions of the data analysis indicate empirical Room 7C-2-14 mon wisdom normally associated with concepts such validity on this hypothesis in Brazil Mexico and Spain, as presidentialism, mechanisms of formal constitu- but not in Portugal. tional change and judicial activism. By placing these George Karavokyris: Constitutional change and concepts on the ground of a rich history of a region Maria Francisca Miranda Coutinho: Political legal interpretation where change and instability have been a recurring representation as a dialectical process and an The concept of constitutional change and its inter- reality, although continuously revamped, the minimal ethical relation play with the normative and institutional evolutions are ambition of this paper is show that concepts can only Nowadays, the legitimacy of political representa- key elements of contemporary constitutionalism and be properly grasped if challenged by experiences that tion is in crisis in Brazil especially on account of the of the way that a legal order is evolving in terms of a may also change them. fortification of the civil society’s role as a key politi- living organism/text. Giving emphasis on the various cal actor (through increasing social media articula- ways and patterns of constitutional change, especially Craig Martin: The Legitimacy of Informal Consti- tion, broadening of public political debate in private on the amending formulas (formal or informal) of the tutional Amendment and the “reinterpretation spheres and strengthening of the Constitution’s role constitution, constitutional theory aims at explaining of Japan’s War Powers” after the process of redemocratization post 1988) the constitution-making processes and introduc- The government of Japan has purported to rein- and the increasing discredit in the ability of rulers to ing a certain (meta-normative) understanding of the terpret the famous war-renouncing provision of the act according to public interest and to consider the constitutional design/engineering. Most of all, behind Constitution in a controversial process that deliber- heterogeneity of perspectives involved. However, in a the lines, the constitutional change theory seems to ately circumvented the formal amendment procedure. complex society like the Brazilian one, the complete adopt a normative idea about the constitution per se. This article argues that these developments should overcoming of the category of representation can not In fact, the theoretical models of constitutional change be of great interest to constitutional law scholars be sustained. The present article intends to approach serve to classify the constitutions and their different in America because they bring into sharp focus is- the impossibility of the representation to be thought by perceptions (i.e. rigid/flexible, formal/material, juridi- sues that remain underdeveloped and unresolved in the philosophical principle of the identity, like a closed cal/political etc.). Consequently, it goes without say- the debate over informal amendment. Theories on totality and zero sum. It also maintains that legitimacy ing that the theory and its analytical categories are of informal amendment suggest that there are some shouldn’t be attached to the act of authorization. On great explanatory value, in particular when it comes to constitutional changes that exceed the reasonable the contrary, it is suggested that representation should comparative research. Nevertheless, at the same time, range of normal interpretive development, but which be thought as an ethical relation marked by the in- the constitutional change theory seems to embrace are not implemented through formal amendment pro- superability of radical difference and as a dialectical a specific concept of the constitution as a method- cedures. The existence, scope, and legitimacy of such process in permanent production and reconstruction ological condition for the very notion of change. In this informal amendments remains hotly contested. This delimited by the logic of the non-whole. Legitimacy, sense, the theory reproduces a traditional distinction article focuses on the key issue of legitimacy, using the then, would be in the process itself. This reinforces of formal/informal change or amendment/transfor- Japanese reinterpretation as the lens through which the need to think of effective instruments of popular mation of the constitution, which in my view is nec- to explore the relationship among a public ratification, participation in the processes of determining agen- essarily related to the preconception of a core and the intent of the agents of change, and the passage of das, deliberation and decision-making, as well as to static constitutional meaning. The aim of my paper is time as factors affecting the legitimacy of any particu- consider the importance and materialization of ac- to test the validity of these epistemic premises of the lar informal amendment. It also suggests a new way countability and responsiveness. Finally, it highlights constitutional change theory from a realist and herme- of conceptualizing the relationship among authority, the importance and strength of what remains and re- neutical standpoint. I shall address, in particular, the legitimacy, and time in thinking about informal amend- sist not represented as a negativity that pushes and essential -but I believe underestimated- link between ments, in that time creates a divergence between the enables the permanent resignification of the process constitutional change and legal interpretation in order level of constitutional authority and legitimacy that may of representation. a) to identify the interpretative theory, which lies behind be enjoyed by contested changes. The article argues

Concurring panels 82 Concurring panels 83 37 constitutional Change in Latin been entrenching their interests’ many times running rial sense’. The first approach is naturally attractive 38 constitutional courts America and the Caribbean counter public interest. In such contexts constitutional to lawyers, as it allows one to identify ‘the constitu- resisting, shaping and courts and substantive judicial review of constitutional tion’ almost with the precision of natural science. The developing public law of During the past few decades both Latin America and amendments represent quintessential elements to second approach, while interesting, is not always Europe the Caribbean have experienced major institutional deter politicians engaging in abusive practices and conducive to clear answers: what is ‘material’ to one changes that have been translated either into the en- preserve core democratic values. In the case of Mex- observer may appear to be ‘non-material’ to another. Constitutional courts have always been reluctant to actment of new Constitutions or into profound consti- ico, the Supreme Court has failed to do so, setting the In the case of Puerto Rico, however, identifying the accept the full force of supranational law. For a very tutional reforms. This panel aims to offer explanatory right incentives for political parties to continue their formal constitution can be as hard as identifying long time this has been seen as a sign of constitutional and critical accounts about a broad variety of issues abusive practices. In this paper, I explore the question -or trying to agree on- the content of the material patriotism going wrong: constitutional parochialism (or pertaining constitutional change in these regions that why despite having the institutional means to engage one. True, there is a document titled ‘Constitution worse, nationalism) dressed in the noble words of a range from the role of Constitutional/Supreme Courts in substantive judicial review of constitutional amend- of the Commonwealth of Puerto Rico’ (Constitución universalist constitutional language. With the ongoing in these transformations and the influence of external ments the Mexican Supreme Court has been reluctant del Estado Libre Asociado de Puerto Rico) but that crisis of the post-war liberal world order their contribu- factors on the amendment power, to new solutions to engage in it. document is far from containing all the written norms tion to its maintenance should be reconsidered: the to traditional dilemmas drawing on the experience of that have formal constitutional status in the island. four papers collected in this panel do this in differ- underexplored cases in comparative constitutional Diego Andrés González Medina: The Colombian This is a direct result of the evolution of Puerto Rico’s ent ways: from a critique of the sweeping notion of law. These critical and explanatory approaches are rel- Constitutional Court and the Peace Process territorial relationship with its metropolis, and was “New Constitutionalism” a study of the terms on which evant taking into account that they will provide useful Colombia is currently the most relevant case of dramatically exemplified by the recent adoption of the national constitutional courts engage EU law, to the analytical theoretical and practical instruments to en- transitional constitutionalism all over the world. The Puerto Rico Oversight, Management and Economic relevance of comparative law and quite detailed study hance the toolkit of constitutional designers in charge peace process between the Colombian Government Stability Act, 2016 by the U.S. Congress (an Act that of the influence of the German Federal Constitutional of facing the permanent political (and constitutional) and the Colombian Revolutionary Armed Forces – The altered in fundamental ways the functions and pow- Court’s contribution to the politics of Euro-crisis in transformations that Latin America and the Caribbean People’s Force (FARC-EP) has challenged in several ers of the ordinary institutions of government in the Germany. must face and have faced year after year. ways Colombian constitutionalism and the very role island). In this paper, I try to provide an answer to the of the most significant Colombian institutions. Even question of ‘What is the constitution of Puerto Rico?’, Participants Jan Komarek Participants Richard Albert though the inner value of the peace process has par- by examining the ways in which constitutional norms Marco Dani Mariana Velasco Rivera tially eclipsed those constitutional changes, it is time emanating from the island’s legal system interact Mattias Wendel Diego Andrés González Medina to analyze and evaluate the very nature and conse- with U.S. legislation of constitutional significance, as Nik de Boer and Joel Colón-Ríos quences of this sort of transitional constitutionalism. well as with the juridical apparatus that regulates its Christophe Majastre Magdalena Correa Henao In this context, this paper aims to analyze the role of relationship to the metropolis. Moderator Michaela Hailbronner Moderator Vicente Fabian Benitez-Rojas the constitutional court in this new wave of transitional Room 7C-2-02 Room 7C-2-12 constitutionalism. In fact, the Colombian Constitu- Magdalena Correa Henao: Constitutional judges, tional Court has played a very substantial role since constitutional transformations and economic the very beginning of the peace process. Instead of order. The other side of the coin. Jan Komarek: Resisting “New Constitutionalism” Richard Albert: Constitutional Reform in the being absent or playing a static or discreet role, this Constitutional judges have become a great power through constitutional adjudication in Europe Caribbean Court of Law has actively participated in the defini- for Rule of Law transformations. It does not escape the The paper examines the challenges faced by Some of the most fascinating developments in tion of the framework of the negotiation, the review- scope of this article the case of Colombian Constitu- constitutional courts in Europe ,which result from comparative public law have occurred over the last ing of the constitutional amendments for peace, and tional Court, considered by Landau as the strongest institutional and ideological transformations of law generation in the countries of the Caribbean, many the laws and executive orders enacted to implement in the world! Nevertheless, that is not evident in the often referred to as ‘New Constitutionalism’ (also having completed, successfully or not, historic pro- those peace compromises. Having such and active constitutional review of economic intervention mea- ‘NC’). These transformations are usually thought to cesses of constitutional reform. Yet these develop- Constitutional Court in this momentous process has sures. In this matter, Colombian Constitutional Court empower courts at the expense of other branches of ments have remained largely unexplored by scholars many advantages as well as risks, which are analyzed has adopted some judicial rules using a light propor- government, to entrench the vested interests of ruling in the field outside of the region itself. In this Article, I and assessed in this paper. tionality test, which have allowed broader normative elites, and to expose democratic institutions of the explain some of these major reforms and I situate their powers and competences for the Legislator and the nation state to the forces of untamed globalization. significance in comparative perspective. My objective Joel Colón-Ríos: What is the Constitution of Government. This jurisprudence, so typical of political Scholars who study NC are usually critical of it; they is twofold: first, to explain some of the momentous Puerto Rico? liberalism in interpreting the competences of other disapprove of (neo-)liberal politics, which emphasizes constitutional changes that may await the region; and There are two main ways of thinking about what public powers, far from eliciting constitutional trans- rights and the rule of law over politics, and are suspi- second, to invite scholars of comparative public law to a constitution is. The first, and more legalistic one, formations, has contributed to preserve the status quo cious of various projects of ‘global’ or ‘cosmopolitan’ become more closely engaged with the Caribbean, a focuses on form: a constitution is a document that in some cases and in others have permitted the imple- constitutionalism, which seek to imbue governance region that is ripe for comparative study and one that contains rules that are more difficult to change than mentation of economic models that neglect pressing ‘beyond the state’ with constitutional values. The EU is offers new possibilities for the study of constitution- ordinary laws. This is what constitutional theorists structural issues. The thesis formulated in this article the most advanced example of structures which come alism beyond the conventional list of countries that usually refer to as ‘the constitution in the formal is that to complete that (symbolic) transforming power under this sort of critique, although the NC framework today feature all too frequently in most if not all major sense’. The second approach, more political or philo- of constitutional jurisprudence, the constitutional re- has been only scarcely used to study it. In contrast to studies of comparative public law. sophical in nature, identifies the constitution with the view of economic measures must be subjected to what the leading New Constitutionalism scholars con- most fundamental rules of a particular constitutional different intensity tests (light, moderate, serious). This, tend, however, constitutional courts in the EU member Mariana Velasco Rivera: Contributing to abusive order. These rules (such as those that establish the depending on the impact that the economic regula- states – which must be distinguished from the rest of constitutionalism: is the Supreme Court incen- structure of the state or that regulate the process of tion had produced or might reasonably produce in the judiciary at the national level – have lost some of tivizing constitutional hyper-reformism Mexico? law-making) can be contained in a formal constitu- areas such as realization of liberal, competitive, social their powers in the process, to which they have been In the last 30 years in Mexico, constitutional tion, but are sometimes found in unwritten customs and environmental constitutional values, that were not reacting in different ways. The unique position of con- amendment has been used as a hegemonic pres- or in other extra-constitutional rules. Constitutional considered during the political debate and that can stitutional courts has hitherto been rather neglected in ervation tool through which political actors have theorists refer to this as ‘the constitution in the mate- be measured by legal standards or its effectiveness. academic research, both concerning their relationship

Concurring panels 84 Concurring panels 85 to the systems of global governance, and also when law in a specific sense. Hence, the notion of “shap- 39 constitutional Rights and the for example in the aviation field which abandoned it comes to the examination of their place in the EU ing force” is intentionally broadly framed, in order to Criminal Procedure the obsolete “Fly-Fix-Fly” approach and developed (in contrast to the abundant research concerning the encompass modes of influence that do not reach the more advanced safety methods that generally follow relationship between national constitutional and EU level of a normative impact. However, comparative The constitutional revolution in Israel has led to a broad an “Identify-Analyze-Control” model and are aimed law, or courts in general). It also remains to be tested public law can also entail normative consequences as discourse regarding rights of suspects defendants at “First-Time-Safe.” Under the latter approach there what constitutional courts can possibly do to address far as the law itself demands that legal rules or prin- and victims in the criminal proceedings. Israeli law is systematic identification of future hazards analysis the discontents with some elements of NC, particularly ciples must be enacted or interpreted in accordance recognizes that to due process rights are protected of the probability of their occurrence and a complete those related to the rise of governmental structures with comparative standards. Furthermore, national by the Basic Law: Human Dignity and Liberty being neutralization of the risk or at least its reduction to ‘beyond the state’ and more broadly globalization. Fi- courts have recently taken a path towards a more in- part of the right to dignity. There is an extensive writ- an acceptable level. A false conviction is no less a nally, and most importantly, it needs to be seen how depth use of comparative legal reasoning, including ing and case law recognizing rights such as the right system error and accident than a plane crash. Yet in New Constitutionalism has affected the legitimacy elaborate and sometimes even critical evaluations of against self-incrimination, the right to consult with a criminal law a Hidden Accidents Principle governs constitutional courts in the EU. foreign jurisprudence in their judgments. This mirrors defense counsel, and the right to be present at trial as and the overwhelming majority of false convictions a broader process of strengthening the shaping force constitutional rights. The implications of the recogni- are never detected. Consequently no thought has ever Marco Dani: Deference, correction and resis- of comparison in and for public law. tion of constitutional rights relate mainly to the validity been given to safety in the system. Empiric studies tance: in search of the terms of engagement of laws and admissibility of evidence. This panel will based on the Innocence Project’s findings point to a between national constitutional courts and Nik de Boer and Christophe Majastre: With the address constitutional rights and constitutional values very high false-conviction rate: at least 5% for the most Union law law on our side: judicialisation and juridification which are less discussed in the context of criminal serious crimes. About one-quarter of those convic- The paper examines deference correction and re- of German EU politics in the Euro crisis proceedings i.e. in wide circles of the right to human tions had been based on a false confession. Current sistance the judicial strategies inspiring the activity of This paper enquires how the GCC’s case law on dignity and its derivatives in the context of criminal law confession law – in particular the Miranda rules – only national constitutional courts in supranational litigation. European integration has affected German political and procedure. For example, what is the role of truth addresses the possibility of an involuntary confession. In deferent judgments national constitutional courts and public discourse on the Euro crisis. We ask wheth- in the criminal process? Is truth a value? Is it a consti- It does not seriously deal with the existing possibility reinforce the normative claims the policy agenda and er and in what way the Court’s rulings on several of tutional right? And consequently, do lies to suspects of false confessions (which may be voluntary). This the institutional framework of Union law. In correct- the Euro crisis measures have led to a problematic during interrogation violate constitutional rights? Do article proposes a theory and some initial tools for ing judgments national constitutional courts engage ‘judicialization’ and ‘juridification’ of politics. These innocent persons have a constitutional right not to be incorporating modern safety into the criminal justice with Union law with a view to make more sustainable processes entail a shift of decision-making author- convicted and whether and how safety can promote it? system. Specifically I demonstrate how the innova- its impact on national constitutional democracies. ity from democratically legitimated and politically ac- tive “System-Theoretic Accident Model and Processes” In resistance national constitutional courts oppose countable institutions to courts and legal experts. The Participants Rinat Kitai-Sangero (STAMP) safety model can be applied in the criminal national constitutional principles against Union law paper’s empirical focus is twofold. First, we analysed Boaz Sangero justice system by developing constraints controls and encroaching on national constitutional democracies. the role of legal expertise in German public debates Roni Rosenberg barriers against the existing hazards in the context of After having exposed the merits and shortcomings of on the Euro crisis. This was done through an analysis Michal Tamir convictions grounded on the defendant’s confession each judicial strategy the paper claims that no single of lawyers’ public interventions on the crisis in German Moderator Michal Tamir during police interrogation. strategy fits with the role assigned to national consti- newspapers. Second, we assessed the consequences Room 8A-2-17 tutional courts in European public law. This justifies of constitutional review for German political discourse. Roni Rosenberg: Sexual Harassment the elaboration a comprehensive doctrine identifying For this purpose we assessed the place of the GCC’s In early 2014, Amendment 10 of the Prevention the different circumstances in which national consti- case law and the role of constitutional discourse within Rinat Kitai-Sangero: Prohibition on Police Lies of Sexual Harassment Law came into effect. Under tutional courts should defer correct or resist to Union key German parliamentary debates on the Euro crisis. Regarding the Incriminating Evidence this amendment, in certain circumstances publica- normative claims. We believe that these enquiries are crucial to evaluate The paper addresses the question of whether ly- tion of a photograph, video, or recording of a sexual justificatory accounts of the GCC’s constitutional judg- ing to suspects during interrogations regarding the in- nature, without the consent of the subject, constitutes Mattias Wendel: The shaping force of compari- ments on European integration. Our paper provides criminating evidence against them is a legitimate deceit. sexual harassment and is punishable by a maximum son in public law insights about whether and how a supposed process Despite the condemnation of lying lying to suspects of five years in jail. The amendment was passed, in The public law of our time is a law in multiple layers. of judicialisation and juridification takes place within during interrogations is a common phenomenon and part, in reaction to the growing phenomenon of “re- While this multi-layered structure is usually examined German political and public discourse. has even been dubbed an “art”. This paper argues that venge porn” that is the deliberate dissemination of in its vertical spread (international – European – na- lies of this type are illegitimate because they create an sexually explicit material over the internet, particularly tional etc.), this contribution focuses on its horizontal increased risk of false confessions and because they via social media, motivated by revenge. This lecture dimension. Horizontal relationships between legal force suspects in general and innocent suspects in will present some of the legal difficulties inherent in orders can have various forms, ranging from mutual particular to shape their defense in view of false evi- Amendment 10 and proposes appropriate solutions. trust and recognition to more nuanced modes of trans- dence. Consequently lies infringe upon fundamental These potential solutions are intended to assist both national interaction. One such mode is comparison. principles of constitutional criminal law such as the right the legislature and the courts. Some of the issues Comparison has been a key factor for designing law to remain silent the presumption of innocence and the discussed relate to inconsistencies between the pro- ever since the first legal orders have emerged in his- imposition of the obligation to prove the accusations visions of this Amendment and statutory provisions tory. Developing modern constitutional orders wouldn’t on the prosecution. All the arguments against using relating to other criminal acts. Hopefully, pointing have been thinkable without comparing. Against this lies ultimately revolve around the linkage between lies out these inconsistencies will spur the legislature backdrop this contribution explores the shaping force and the obligation imposed on the state to prove guilt. to enact further amendments. Other solutions, may of comparison in public law. While the practice of com- assist the courts in interpreting the Amendment as parison heavily influences the process of designing Boaz Sangero: Safety from False Confessions they apply it, with regard to such issues as: the scope and interpreting legal norm, it does not in general, In certain fields the meaning of a “safety-critical of the prohibition, the elements of the crime, and the establish normative requirements. Neither does it system” is well understood and resources are there- scope of the defenses provided. The importance of compel the legislator to opt for a particular design of fore invested in modern safety methods which reduce appropriate application of the this Amendment is rules nor does it coerce the judge in interpreting the significantly the rate of accidents. This is the case obvious in that it can and should be a key tool in deal-

Concurring panels 86 Concurring panels 87 ing with this unpleasant phenomenon, which often 40 constitutional Rights in Talya Steiner: Conflicts of Constitutional Rights 41 challenging Racial causes serious damage to both the individual victims the Policy Making Domain: and Public Interests: Perspectives of the Par- Marginality in Public and society in general. Normative and Empirical ticipants in the Policy Making Process Institutions – Method Perspectives This paper is inspired by insights gained from a Michal Tamir: Selective legislation series of two dozen interviews with current and former In addressing the conference theme of courts, power Enforcement authorities supposed to enforce the Conflicts between constitutional rights and public senior participants in the policy making process in and public law, the papers in this panel will consider law in a way that fulfill the main goals of the law. Thus, interests are at the heart of public law and subject Israel, revolving around the question of proportional- the production and consequences of homogeneity they are limited in creating enforcement categories. for much debate and dispute. Academic scholarship ity and the consideration of rights. Based on the in- in law and politics. This is not only relevant as a result Otherwise they might act selectively. But is the Legis- has traditionally focused on the perspective of the terviews we conceptualize particular characteristics of shocking public events in 2016 such as Brexit in lature not restricted in making classifications? Can the judiciary in its role of reviewing limitations of con- of the policy making process (i.e. its being a group the UK and Trump in the USA. Over the last few years, legislature act a selective law? The subject of selec- stitutional rights. This panel is dedicated to explor- endeavor, an iterative process) and their implica- questions such as ‘where are the Black Lawyers’ or tive enforcement is very developed in Israel. However ing rights-restricting policy from the perspective of tions for the final balance struck between competing ‘where are the Black law professors’ have been raised the phenomenon of selective legislation rarely gets policy makers extracting the balancing debate from considerations. We explore the role perceptions of in the UK and other parts of the EU, where there are discussed. The fundamental principle of the rule of the sterile environment of judicial opinions and analyz- different actors in the process with regard to con- significantly fewer black legal female or male profes- law in its substantive sense, requires that the norms ing it in the context in which it first takes place. This stitutional rights and the interactions between them sionals – in higher education in practice or the courts – will be general in nature, namely refers to non-specific shift of focus from the judicial evaluation ex-post to as they play out throughout the process. Finally, we than in the USA. However, this issue is equally resonant group of people. The rationale is to reduce the fear policy design ex-ante calls for a diversification of demonstrate the variety of implicit conceptions of the beyond the nation state: Where are the Black interna- of harassment of someone, on the one hand; or un- methodology. The papers on this panel adopt differ- proportionality principle held by different participants tional lawyers? In addressing this, papers in this panel justified preference of others, on the other. Selective ent approaches: A normative approach challenges in the policy arena. will also consider questions such as: What is the role legislation – that is legislation that addresses some whether the proportionality framework as developed of the black lawyer in public or public international law? person or persons using the name or characteristic by courts is beneficial as a conceptual framework for Raanan Sulitzeanu-Kenan: Enhancing the Pro- What are the consequences of their absence? Would distinguishes – contradicts the rule of law. Selec- policy making. A descriptive approach accounts for tection of the Otherwise Favored: An Empirical Brexit or the election of Trump had happened with tive legislation contradicts the separation of powers the roles that different institutional actors play in the Analysis of the effect of the label “Rights” on lesss homogeneity? The panels will seek to address principle too. Personal legislation intervenes with the policy process with regard to rights and conceptu- Balancing Between Considerations this topic from multiple perspectives. Papers will high- realm of the Executive (if the matter is administra- alizes the interactions and dynamics that ultimately Constitutional rights are conceived of as restrain- light factors of debate on arenas of opportunity and tive) or with the realm of the Judiciary (if the matter is determine the final balance struck. A behavioral ap- ing policy makers, signaling to provide special weight oppression – from schools to universities firms and judicial). Moreover, selective legislation impairs the proach explores the cognitive mechanisms at play to an interest that is in danger of under-protection. For courts – that link power and public law in ways that may ability to direct people conduct and hence constitutes when making decisions that involve conflicting values example, in the context of speech, the right is required be detrimental to the interests of marginalised people. a retroactive application of the law. Although selec- and experiments with interventions that may affect particularly in order to protect the expression of un- tive legislation is contrary to the basic foundations the final outcome. popular views that challenge prevailing political status Participants Terry Smith of a democratic, the Supreme Court refrains from quo. Our experimental study shows that the addition Audrey McFarlane enforcing the restriction that the legislation should Participants Mordechai Kremnitzer of the label “right” to the consideration of free speech Gregory S. Parks be general, limiting the judicial review to situations Talya Steiner strengthened its protection when the decision maker Moderator Iyiola Solanke where the constitutional right to equality is infringed. Raanan Sulitzeanu-Kenan identified with the ideology of the group whose speech Room 8B-2-03 The practical result is allowing situations where there Moderator Mordechai Kremnitzer was to be protected but had no effect when he was is no violation of equality because there is a relevant Room 8A-2-27 ideologically opposed. These findings suggest that in distinction; and allowing violations in situations where the realm of decision making the rights discourse may Terry Smith: Donald Trump, the Supreme Court the law meets the demands of proper purpose and have the opposite affect than that intended: enhanc- and the Culture of White Grievance proportionality. However not all the selective laws dis- Mordechai Kremnitzer: On the perils of “gov- ing the protection of favored, rather than un-favored criminate. Moreover, it is important to have judicial re- erning like judges”: Judicial review and the interests. Audrey McFarlane: Race Class & Moral Claims view of selective legislation regardless of the violation practice of rights-consideration in the policy for Justice of rights, since the separation of powers is a bouncer process from the tyranny of government. The article will argue A common implication of judicial review is the no- Gregory S. Parks: Race Cognitive Biases and that this is where the court need to use meta-textual tion that policy makers should, and indeed apply the Law Student Teaching Evaluations judicial review, based on the fundamental principles legal criteria implemented by judges, captured by the of democracy and the social contract. saying that “governing with judges also means govern- ing like judges” (Stone-Sweet 2000: 204). In this paper we critically review the implications of applying the criteria of judicial review in policymaking. Our analysis focuses on the challenge of rights-consideration in the policy process in comparison to judicial review based on proportionality analysis. We review various aspects entailed by the differences in goals and in the chal- lenges involved in policy making and judicial review. Based on this comparative analysis, we demonstrate the incompatibility of the analyses adopted in judicial review to the public process, and conclude with sev- eral alternative practices for rights-consideration in the policy making.

Concurring panels 88 Concurring panels 89 42 courts, the rule of law may be revealed in different ways and with regard to form which has become increasingly pervasive in re- EU courts between 2014 and 2016. It will argue that and Europe’s changing different components of the information. This paper cent decades in areas as different as structural funds most of the EU courts activity under scrutiny can be administration explores the secrecy effects of the principle of origina- and GMO governance. Such composite administra- classified as the judicial review of individual admin- tor control over classified information in the context of tive procedures combine national and EU measures istrative decision-making carried out at the request Europe’s administration is changing. New challenges foreign affairs by the EU and in CFSP. European and into unitary final decisions. Since the administrative of economic operators. In contrast the constitutional to the preservation of the rule of law are posed by in- national legislation on mandatory data retention by acts resulting from composite procedures do not fall review of legislation, the judicial review of executive creasingly pervasive secrecy, growing fragmentation private actors (banks, mobile phone operators and exclusively to either level of judiciary, gaps in judicial rule-making as well as the challenges to any EU acts along different jurisdictions and the outdated overall airline companies) has been the setting for litigation review may arise which compromise the principle of by social actors and public interest groups remain rare design of available judicial control mechanisms. The by privacy activists in Europe and European judges the rule of law. The paper explores how EU courts have or almost inexistent. In conclusion, the paper will claim panel inquires into the role of courts in responding to have been particularly outspoken on the general right addressed this problem. It argues that EU courts have that the EU courts, by applying the strict interpretation those challenges. The panel will begin by exploring to privacy. Yet not all can be seen and challenges also found a way to guarantee that the action of authorities of Article 263(4) TFEU, refuse to fully use their potential the challenges of courts in ensuring legal account- cause or reveal further layers of invisibility. This is in involved in composite procedures does not evade as administrative and constitutional courts. This, in ability in the secretive cross-border data exchanges particular revealed to be the case where the principle judicial control. They have done so by respecting as turn, undermines the rule of law in the EU. that occur between EU, international and state bod- of inter-operability spreads in European and national much as possible the limits of the jurisdiction of EU ies in the context of Europe’s interoperable informa- data-bases and seems to fall below the radar of any courts. The paper further argues that the case law has tion systems. The panel then explores the role of EU possible judicial control, perhaps systemically. shown that the location of discretion at the national courts in scrutinizing rulemaking power in instances of or EU stages of a composite procedure is decisive in regulatory cooperation between EU and international Joana Mendes: EU Executive Rulemaking in In- determining the competent judiciary for judicial review. bodies. Doubts are also raised by how EU courts have ternational Perspective: Legal Challenges and Lastly, the paper demonstrates that the creation of attempted to preserve the rule of law in joint adminis- Judicial Review composite procedures has obliged EU courts to face trative decision-making by national and EU authorities Rules and decisions adopted at the international an unexpected dilemma between respecting the limits when the EU’s judicial review system is designed for level define substantive aspects of EU regulation of EU and national judicial jurisdictions and ensuring decisions taken by only one of the two levels. Lastly concerning health and safety standards of pharma- the full guarantee of the rule of law at the Member relying on quantitative analysis of the litigation initiated ceuticals, chemicals, food products, parameters of State level. From the answer to this dilemma, a new by private applicants before EU courts the panel will environmental protection, among other issues. The in- doctrine of judicial review emerged that addresses examine whether EU courts have indeed gone beyond tertwinement between the international and domestic the unique challenges of composite decision-making. their initial role of administrative courts to assume a sites of authority is such that safeguarding the effec- more mature constitutional role. tiveness of the respective procedural guarantees may Michal Krajewski: An administrative or constitu- justify approaching the respective decision-making tional court? A quantitative analysis of private Participants Deirdre Curtin procedures as segments of a broader regulatory cycle. applicants\’ direct access to the EU courts Joana Mendes Yet, they are subject both to different procedures and The Court of Justice was designed primarily as a Filipe Brito Bastos to different controls, potentially opening gaps in law’s forum for the settlement of legal disputes between the Michal Krajewski ability to structure public authority and leading to in- member states and EU institutions. In contrast, the Moderator Diana-Urania Galetta stances of unrestrained authority. Taking these prem- admissibility criteria of annulment actions laid down Room 8B-2-09 ises as a starting point, this paper will, first, examine in Article 263(4) TFEU do not make the mechanism the ways in which the EU Courts have approached the for judicial review of EU acts widely available to pri- legal problems arising out of the circular effects be- vate parties. The latter can challenge only the EU acts Deirdre Curtin: EU Security Handshakes and In- tween international and domestic rulemaking. Its aim addressed to them on a direct and individual basis, formation Control: Below the Radar of Judicial is to assess whether judicial review by EU Courts has whereas private challenges to generally applicable Review? prevented or contributed to instances of unrestrained legislative and executive acts as well as challenges by Citizens’ trust in law enforcement took a massive authority and to examine how they have scrutinize workers’ organisations, social actors and public inter- dive when the invisible security handshake became decisions of domestic (EU) institutions and bodies est groups are excluded. High hopes expressed with visible through leaking by Edward Snowden. The main the substance of which is defined via international regard to a new limb of Article 263(4) TFUE, added in driver for this initially secret private-public collabora- regulatory cooperation. The paper will, secondly, ad- the Lisbon Treaty, have been swiftly dispelled due to tion is national security, in particular after 9/11. Infor- dress the legal position of holders of rights and legally its strict interpretation by the EU courts. The admis- mation is shared among many sources (national and protected interests excluded from internationalised sibility criteria of annulment actions determine what supranational; internal and external; private and public) rulemaking procedures. type of cases come before the EU courts. Interest- and the information thus shared tends to be a com- ingly, despite fundamental changes in the EU legal mingling of both internal and external security aspects. Filipe Brito Bastos: A divided judiciary for a joint order – the inclusion of fundamental rights standards, There is a certain level of dislocation in the operational administration? Composite procedures and the development of general principles, expansion of EU function of information, affected by the overall frag- limits of European judicial review law to new regulatory fields – the admissibility criteria mentation characteristic of this area, more broadly. Ul- The EU system of judicial review relies on a strict have never been substantially revised by the member timately, it makes it impossible to independently verify division between the jurisdiction of national and EU states or reinterpreted by the EU courts. Moreover, in the reliability of such information. What is particularly courts whereby only EU courts may review the exer- practice the procedure for preliminary reference from striking in the context of the European Union is not only cise of EU powers, and that only the Member States’ a national court on the validity of an EU act does not fill the different ways that the security ‘handshake’ exists courts may review the exercise of national powers. in the gaps in the EU judicial protection system left by but also the way that law and politics have inter-twined That system presupposes that any given act of author- the annulment procedure. The paper will present the in a manner that challenges or tries to challenge the ity may be attributed to either the EU or national level. quantitative analysis of the type of private applicants hidden security phenomenon, the existence of which This assumption is challenged by a decision-making and subject-matter of their cases completed by the

Concurring panels 90 Concurring panels 91 43 courts and African Federalism Conrad Bosire Mugoya: The Courts and De- It also looks into the dual nature of the Ethiopian ju- 44 I s There a Special East- in a Global Perspective volved Governance in Kenya diciary and investigates its contribution to the man- Central European In 2010, Kenya joined other states with federal and agement of ethnic diversity. It also looks into the role Constitutional Identity? – Recent developments in Africa indicate that the feder- quasi-federal arrangements by adopting a system of of the House of Federation, the second chamber of I. Country Case Studies al idea that was never given a chance to develop is now government composed of 47 county governments. the Ethiopian federal parliament, in umpiring disputes re-entering the constitutional scene of several African While legislative and executive power is devolved to between the federal and state governments. This panel aims to deal with the use of constitutional countries, above all as a response to communal ten- these units, judicial power is retained at the centre and identity by some East-Central European Member sions. Despite constitutions that provide for a robust bestowed on a unitary judicial structure. Devolution of Karl Kössler: Courts in Federal Systems: States of the EU. The reference to national consti- and dynamic federation, the federal or semi-federal power was one of the contentious issues in the entire A Global Perspective tutional identity by governments and constitutional systems in Africa operate in centralised manner. In review process; however, at no point was the issue of Many federal systems are characterised by a wide courts sometimes serves to legitimize deviations from many of those countries, the federal arrangement that federating judicial power strongly mooted. Kenya’s gap, sometimes a chasm even, between how the sys- the shared values of rule of law, democracy, and fun- by definition multiplies opportunities for offices and legal system (common law) and general legal tradition tem is designed in the constitutional text and how it damental rights, the ‘basic structure’ of Europe. Es- helps to promote subnational democracy has been is inherited and firmly rooted in the British legal system actually operates. The fact that in constitutional terms pecially the two main backsliding countries, Hungary undermined by a political practice that largely ignores that is unitary. Even when the British bequeathed a relatively decentralised federations are often rather and Poland justify their non-compliance by referring the system. This begs the question whether the gap semi-federal system of government at independence, centralised in practice or more rarely vice versa, is not to national sovereignty and constitutional identity. The between the Constitution and the practice can be part- they left the judicial structure unitary. This may well least due to the impact of constitutional jurisprudence. panellists try to answer the question whether there ly explained by the absence of constitutionalism. Can explain why the federal debate did not extend to the The potential to shape the effects of a federal system’s are indeed common characteristics of national con- it be explained by the fact that most African countries, Judiciary. While the Judiciary is structurally part of constitution on its actual operation is, of course, a stitutional identities in these new Member States, and even after the adoption of the Constitution, have not the national government structure, it is functionally a natural corollary of the role of apex courts as ultimate how can the EU effectively protect the values in Article seen the emergence of independent institutions that shared institution that plays an “umpire role” in Kenya’s interpreters of the legal order and as (supposedly) 2 TEU, while respecting the constitutional identity of champion vertical constitutionalism and challenge the devolved government structure. The Judiciary’s role impartial umpires between different levels of govern- these Member States. Due to the number of presen- constitutionality of government actions? This session is set against a political and institutional culture that ment. This paper explores various drivers that seem tations, the country case studies and the compara- focuses on one particular independent institution that is centralised, a culture which the Constitution seeks to determine whether a court exploits this potential tive and European aspects will be discussed in two can curtail government actions that flout the basic to change into one where there is shared horizontal or not. Among these possible drivers, which appear separate subpanels. principles of constitutionalism: the Courts. It focuses as well as vertical state power. It is therefore inevi- important, in particular but not exclusively in the Afri- on the impact of courts on the operation and function- table that courts are confronted with disputes whose can context are the following: the dual or integrated Participants David Kosar and ing of the federal experiment in Africa. content is the balance of national and county powers. structure of the court system, the organisation of the Ladislav Vyhnánek While courts have applied the Constitution to such apex court and the issue of subnational participation Katarína Šipulová Participants Nico Steytler disputes or matters, there are a few factors limiting the in the appointment of judges as well as several factors Tomasz Tadeusz Konczewicz Conrad Bosire Mugoya ability of courts, including the newness of the devolved affecting its jurisprudence (e.g. the embeddedness in Gabor Halmai Yonatan Fessha and system and its constitutional implications as well as a common or civil law system, the degree of rigidity of Vlad Perju Zemelak Ayele subtle political influence. This paper will argue that the federal constitution, the scope of judicial review, Paul Blokker Karl Kössler while the Constitution establishes an independent the detailedness of the distribution of powers and Moderator Oreste Pollicino Moderator Francesco Palermo judiciary that can maintain federal balance, and while rules for its interpretation). As the recent turn in sev- Room 8B-2-33 Room 8B-2-19 courts have largely demonstrated keenness to as- eral African countries towards federal arrangements sert the place of “federal balance” in the Constitution, has mainly been driven by a perception of federalism capacity limitations have impeded effectiveness of as an effective tool to manage ethno-cultural diversity, David Kosar and Ladislav Vyhnánek: The Czech Nico Steytler: South African Courts: The Protec- ensuring the “federal balance”. the paper places particular emphasis on experiences Republic: Constitutional Identity of the Czech tors of the Hybrid Federal System from countries that feature such diversity. Republic: A Dormant Concept Thorn between A democratic South Africa opted for a hybrid federal Yonatan Fessha and Zemelak Ayele: Legal and Political Identity? system of governance in 1994. Despite the fact that a Umpiring Federalism in Ethiopia Despite its bold position in its Lisbon I Lisbon II single party, the African National Congress (ANC) domi- With the adoption of the 1995 Constitution, Ethio- and Holubec judgments the Czech Constitutional nated most provinces (and at one time all), the provincial pia has implemented what is often referred to as a dual Court has not engaged with the concept of consti- sphere of government did not became the de facto ad- federal system in which political, fiscal, and judicial tutional identity good and proper. While the founding ministrative arm of the national government. Provinces powers are divided between the federal and the nine principles of the Czech Constitution in particular in opposition hands have use the courts, with the Con- state governments, with the explicit aim of managing the Eternity clause and the relevant case law of the stitutional Court at the apex, strategically to protect their the ethno-linguistic diversity that characterizes the Czech Constitutional Court provide a helpful starting autonomy. The Constitutional Court has not, however, ad- Ethiopian society. Despite the constitutional commit- point for reconstructing one constitutional identity opted a pro-provincial interpretation of the constitutional ment to promote subnational autonomy, the federation, is a dormant concept in the Czech Republic. The provisions establishing provincial autonomy (however by and large, functions in a centralized manner. The lack of public debate and the limited involvement limited it was). Over the years it followed a restrictive division of power between the federal and state gov- of other constitutional organs in the identity dis- approach that favoured the national government. Also ernment has not led to a dynamic interaction between course pose another challenge to conceptualizing when interpreting the division of powers between prov- two autonomous units of government. The national Czech constitutional identity. Even though the con- inces and municipalities, it mainly favoured the latter. government has translated state governments into cept of constitutional identity is a normative one, However, when it came to the adoption of national leg- implementing agents. This begs the question whether the process of discovering and defining it cannot islation affecting provincial interests, the Court has been the constitution provides for an umpire that promotes be limited to a textual analysis of the constitution robust in protecting the role that the National Council of vertical constitutionalism. This paper focuses on the itself or even of the relevant case law of a constitu- Provinces plays in the national legislative process. The Ethiopian judiciary and looks into the role of the courts tional court. Hence, it is important to bear in mind reasons for such judicial behaviour are further explored. in the promotion or erosion of the federal partnership. that the judicially created understanding of consti-

Concurring panels 92 Concurring panels 93 tutional identity does not necessarily have to find Gabor Halmai: Hungary: Non-constitutionalist 45 constitutional courts and Wen-Chen Chang: The Constitutional Court of traction among the people. Put it more bluntly, “legal” National(ist) Constitutional Identity constitutional adjudication Taiwan: An Evolving Strong Court against Con- concept of constitutional identity developed by the Before and right after the EU accession, the in East Asia textual Dynamics Czech Constitutional Court may significantly differ Hungarian Constitutional Court, a powerful and still Taiwan’s Constitutional Court also known as the from the people’s “political” understanding of con- independent institution developed a standing jurispru- In order to contribute to the theme of this confer- Council of Grand Justices prior to 1993, stands as stitutional identity. dence regarding an almost uncontested primacy of EU ence: ‘Courts, Power, Public Law”, this Panel looks at one of the oldest constitutional courts in the world. law. But ever since the 2010 parliamentary elections the scene of constitutional courts and constitutional Established in 1948, the Constitutional Court has since Katarína Šipulová: Slovakia: Democratic Back- Hungary has set off on the journey to became an ‘il- adjudication in contemporary East and Southeast Asia been confronted with challenges in the decades-long sliding and (Ab)use of Constitutional Identity: liberal’ member state of the EU, which does not comply -- a region of the world that has witnessed rapid and authoritarian governance, followed by democratization Slovakian Place in the Concept of Fundamental with the shared values of rule of law and democracy, dramatic growth in both the establishment of consti- and constitutional reforms during the 1990s, and par- Constitutional Values of the European Union the ‘basic structure’ of Europe. The new government of tutional courts and the judicialization of “megapolitics” tisan politics in the context of “divided government” in This paper seeks to present the Slovak example Viktor Orbán from the very beginning has justified the in recent decades largely in the context of transitions the 2000s. In the course of tackling these challenges, of constitutional values development and its place in non-compliance by referring to national sovereignty, of states from authoritarianism to democracy. The the Constitutional Court has not only sustained itself recent discussions. Slovakia undoubtedly represents and lately – as an immediate reaction to the EU’s ef- first paper provides a historical and comparative but also become a powerful judicial institution and a peculiar case among the ECE countries thanks to forts to solve the migration crisis – to the country’s overview of the rise of constitutional courts in Tai- an indispensable strategic player in the development its episode of non-democratic regime established constitutional identity guaranteed in Article 4 (2) TEU. wan, South Korea, Mongolia, Thailand and Indonesia. of constitutional democracy in Taiwan. This paper is under the Prime Minister Mečiar at the beginning The paper tries to answer the question what’s wrong The second paper engages in a case study of the to illuminate how this court has traveled such a long of 1990s. The paper therefore discusses the forma- with this reference, and how can the EU effectively constitutional court of Taiwan, which is the oldest con- journey and its contextual dynamics by highlighting dif- tion of constitutional values under different stages protect the values in Article 2 TEU, while respecting stitutional court in East Asia. The third paper explores ferent roles that the Court played in each context and of democratization (post-communist transition, non- the constitutional identity of a member state. the peculiar constitutional complexities arising from assessing the judicial strategies and jurisprudence it democratic regime, restart of democratization during the practice of “One Country Two Systems” in Hong has developed as it moved from the sidelines to the the EU integration, and finally, the recent backsliding Vlad Perju: Romania: The Politics of Constitu- Kong a former British colony and now a Special Ad- power center of constitutional governance. under the populist government of SMER). Apart from tional Identity in Europe ministrative Region where constitutional adjudication the law on the books, which is compared with consti- In my paper I connect the turn to identity in Eu- flourishes in an English common law based system Cora Chan: Hong Kong courts and Chinese insti- tutional provisions from neighboring countries, the ropean constitutionalism with what I call the ‘de- that contrasts sharply with the legal system of the tutions: pluralism autonomy power balance in paper also searches for a practical use of concepts radicalization’ of European integration. I argue that People’s Republic of China. Hong Kong’s constitutional adjudication of constitutional values, national identity and a com- identity jurisprudence is part of a project that became Beijing’s exercise of its power of interpreting the mon European heritage by individual political actors mainstream in European constitutional theory only Participants Albert H.Y. Chen Basic Law – Hong Kong’s constitution – seems to sug- in order to foster or stay the fragile democratization in the post-Maastricht period in opposition to the Wen-Chen Chang gest that it has final say over what the law is in Hong process and its consolidation in later stages. advancement of European unification. Yet insofar as Cora Chan Kong. This paper argues that it is possible to concep- that project must present itself as a respectable legal/ Po-Jen Yap tualize the relationship between the Chinese and Hong Tomasz Tadeusz Konczewicz: The Politics of constitutional theory, it distorts the doctrines of Euro- Moderator Po-Jen Yap Kong legal orders as a form of legal pluralism similar to Constitutional Identity. Between Constitutional pean constitutional law and misinterprets its normative Room 8B-2-43 that found in the European Union. It further argues that Essentials and Unconstitutional Capture core. The greatest effect of identity constitutionalism a possible way of maintaining the separation of these The constitutional identity stands for distinctive- has had its greatest effect at the municipal level, at two highly divergent legal orders – such separation be- ness of a constitutional order. It takes on special im- both doctrinal and discursive levels, where it has been Albert H.Y. Chen: The Evolution of Constitutional ing promised in the Sino-British Joint Declaration and portance when faced with multiple sources of con- deployed strategically to create a potentially unbridge- Courts in East and Southeast Asia being the foundation of Hong Kong’s autonomy vis-a- stitutional authority each with its own constitutional able chasm between national and the European legal This paper provides a historical review of the rise vis China – is for courts in Hong Kong to develop the essentials to look after, and vindicate. After 2004, orders. I illustrate this point using the example of Ro- and development of constitutional courts in East and relationship between the two legal orders in a pluralist Polish Constitutional Court has been careful in re- manian constitutionalism, as well as other national Southeast Asia, including those in Taiwan, South Ko- direction, thereby assuaging the power imbalance be- constructing Polish constitutional identity in harmony jurisdictions. rea, Mongolia, Thailand, and Indonesia (listed here ac- tween the two jurisdictions. Unfortunately, Hong Kong with the new legal reality of the EU Accession and cording to the chronological order of their establish- courts missed an important opportunity to do so in the new legal order rhetoric of the Court of Justice. It Paul Blokker: Discussant ment). It provides a comparative perspective on the latest oath-taking saga. was searching for a middle ground between rational role and performance of constitutional courts in the deference and constructive critique. This delicate political and legal systems of these Asian countries. Po-Jen Yap: Discussant status quo has been undermined by the unconsti- It also attempts to develop a theoretical framework Prof. Yap will serve as Chairman (Moderator) and tutional capture that has swept across Poland after for the study of constitutional courts in Asia, building Discussant in this Panel. 2015 elections. With unconstitutional capture consti- upon and refining Bjorn Dressel’s typology of judi- tutional essentials are deprived of their exceptionality cial politics which consists of the fourfold catego- and shaped by the transient politics. Necessity and rizations of “judicial muteness”, “judicial restraint”, short-term perspective shapes the identity which is “judicial activism”, and “politicization of the judiciary”, looked at as a trump card against the EU. Enter the and applying the typology to the five constitutional sovereignty talk, constitutional identity becomes a courts mentioned above. Finally, it will consider the catch-all phrase, used and abused by the political implications or lessons of the experience of these powers-that-be. All this begs a question of the Pol- Asian constitutional courts for other Asian countries ish constitutional identity, its elements and, last but that do not have constitutional courts. not least, viability of the concept moving forward in a context of a state captured by the populist and di- visive politics.

Concurring panels 94 Concurring panels 95 46 hIgh Courts and Executive permitting a second mandate (judgments C-1040 that it was forcing the Pinochet regime to establish Diego Werneck Arguelhes and Thomaz Pereira: Power in Latin America: an to C-1057/2005) and not a third mandate (judgment the electoral rules that allowed the opposition to win Judicial Review of Impeachment Trials and the Ambivalent Relationship C-141/2010) as the pivot of a comparative reconstruc- the plebiscite. This nuanced approach suggests that, Limits of the Separation of Powers tion of the Latin American recent case law on this topic, under certain circumstances, authoritarian and non- Should supreme courts review impeachment tri- The panel investigates the complex relationship be- taking into account also the judgments issued in 2010 authoritarian judicial functions can reinforce each other. als conducted by the legislative? During the long im- tween high courts and executive power in Latin Amer- by the Supreme Court of Nicaragua and in 2014 by the peachment procedures of Brazilian President Dilma ica. Each contribution assesses a sensitive issue on Constitutional Court of Ecuador. Juan Manuel Mecinas Montiel: The Mexican Rousseff between 2015 and 2016, constitutional schol- which courts have interacted with the executives and Supreme Court and the Executive Power (1995- ars, courts, and legislators grappled with this question shown attitudes spanning from self-restraint to strong Gonzalo Ramírez Cleves: The Colombian Con- 2016): from Deference to Activism and its implications. The Supreme Court has yet to interpretative authority. First, S. Ragone addresses stitutional Court and the Substitution Doctrine: Two decades ago, Mexico started a transition to rule on the last batch of Rousseff’s challenges to the how courts have interpreted the separation of powers Dilemmas on the Use of Convenience as a democracy and the relation between the Supreme verdict; but it most likely will never rule on their merits. in relation to the presidential re-election, offering a Parameter Court and the executive power has moved back and However, there is more at stake here than the fate of comparative overview built on the Colombian case law. One of the most important decisions within the forth. Specially during the PAN terms in the executive Dilma Rousseff. If the Court decides to review anything In order to better understand the evolution of the role of Colombian constitutional jurisprudence has been power (2000-2012) some decisions challenged the close to the merits of the case, this would mean the the Colombian Constitutional Court, G. Ramírez Cleves the substitution doctrine of the Constitution, which independence of the judiciary, and others showed a end of a certain notion on the meaning of separation of explains the “substitution doctrine” and focuses on implies that a constitutional reform can be declared high court as a real counterpart of the executive power. powers in Brazil. We use this debate to build a broader disputable recent cases where the Court referred also unconstitutional due to the fact that it substitutes prin- In any case, the Court seemed to be ready to partici- framework for understanding separation of powers in to the (political) “convenience” of the amendments. ciples and values of the Constitution of 1991. Despite pate in cases where its role was as political as legal. different systems. We argue that answering the ques- Subsequently, S. Verdugo examines the ambivalent the importance of the substitution doctrine several With the PRI comeback (2012) the relation changed tion of judicial review of impeachment trials reveals role played by the Chilean Constitutional Court during criticisms have been made for the indeterminacy of because the Court decided to participate actively in where one stands between two different models of the authoritarian regime and J.M. Mecinas Montiel the principles and the wide degree of discretion that public policy design with the case concerning the le- separation of powers. In the U.S.-style “separation of proves that the evolution of the Mexican Supreme the judges have in the determination of the substan- gal use of marijuana undertaking a singular political powers”, judges must acknowledge the existence of Court depended on a new self-consciousness on its tial principles. Very recent decisions, such as C-285, role. This study aims to show the intense disputes be- multiple sources of authority, some of which may be position in a democracy. Finally, J. Zaiden Benvindo C-373 and C-699 2016, introduce arguments related tween the Mexican executive power and the Supreme empowered by the Constitution to decide constitu- discusses the role of the Brazilian Supreme Court in with the convenience of the amendment that make Court in four cases (Florence Cassez liberation, abor- tional issues that are outside the scope of judicial re- the impeachment of President Dilma Roussef and the it impossible to determine when a substitution of tion, legal use of marihuana and gay marriage). With view. In contrast in a loosely defined “European” model, contribution by D. Werneck Arguelhes and T. Pereira the Constitution is taking place. My thesis is that the these judgments -and with diverse results- the Court the Constitution distributes decision-making power to develops a framework to understand the separation substitution doctrine must be maintained because it confronted the conservative and positivistic vision different institutions, and the scope of constitutional of powers in light of this procedure. protects the constitutional basic principles against of the executive power in the last two decades, with review is unaffected. The important question is one of potential contrary majorities in the Congress. However, self-restraint or political ambitions according to the interpretation: what does the Constitution say? – not Participants Sabrina Ragone this doctrine cannot be used for reasons of conve- case. In this period the competences of the executive one of authority – Who gets to interpret and apply the Gonzalo Ramírez Cleves nience or utility that do not have a constitutional basis branch remained almost untouched and the change constitution in this case? These questions can shed Sergio Verdugo and where the argumentation about the declaration of was due to the acceptance by the Court of its role in a light on the origins and consequences of the two dif- Juan Manuel Mecinas Montiel unconstitutionality is weak or unfounded. democratic system with checks and balances, leaving ferent approaches to separation of powers, involv- Juliano Zaiden Benvindo behind its previous function as part of the authoritarian ing self-conscious political decisions, specific legal Diego Werneck Arguelhes and Sergio Verdugo: The Role of the Chilean Consti- executive power. cultures or different conceptions on the legitimacy of Thomaz Pereira tutional Tribunal under the Pinochet Regime: a judicial review; in any case, understanding them might Moderator Elizabeth Trujillo and Critical Approach Juliano Zaiden Benvindo: Nudging the Impeach- provide a valuable framework for understanding dif- David Landau During the authoritarian regime that ruled Chile ment: The Supreme Court during the Brazilian ferent constitutional systems. Room 8B-2-49 between 1973 and 1989, the Chilean Constitutional Political Crisis in 2016 Tribunal unexpectedly helped to set up the conditions The impeachment of an elected President strong- for a successful return to democracy. Some scholars, ly disturbs democratic regimes. Not rarely it raises Sabrina Ragone: Latin American Jurisprudence driven by Barros’ book, use the case of the Chilean doubts whether such extreme measure was legiti- on the Presidential Re-election: A Comparative Tribunal to show how an effective constitution limit- mately carried out according to the constitutional rules Analysis ing political power can exist under an authoritarian or, rather, stemmed from a political crisis leading to a Latin American constitutionalism has as one of its regime, while challenging the conventional explana- form of Coup d’état. In such circumstances, the Su- main features the presence of presidential systems; tion about the role of constitutions and courts under preme Court may play a fundamental role in drawing and the (constitutional) regulation of the re-election of authoritarian regimes. The Chilean example shows that the lines of this procedure and defining how it can take the President can easily be considered as an element courts under authoritarian regimes could be more than place without jeopardizing the constitutional regime. of the constitutional identity, in both directions: permit- mere pawns or window-dressing institutions. I claim By doing so, however, the Supreme Court enters the ted, as in Costa Rica; prohibited, as in Mexico. The that this scholarship exaggerates the contribution of stormy environment of a matter of deep political nature possibility or impossibility of a second/third mandate the Chilean Tribunal by focusing on a particular type and places itself both as the guardian of the constitu- for the incumbent has been introduced through consti- of judicial decisions. I show how the Tribunal satisfied tion and as a central political player standing beside tutional amendments and legal reforms being in some some authoritarian goals intended by the dictatorship’s Congress. This contribution discusses the role of the cases challenged before the domestic constitutional constitution-designers, and argue that precisely be- Supreme Court amid the political crisis that led to the or supreme courts. This contribution will deal with cause of this, the Tribunal was also able to support the impeachment of President Dilma Roussef in Brazil in significant cases that help clarify the way high courts demands of the regime’s soft-liners, who advocated 2016. It concludes that, as a Court that aimed at acting have intervened in the issue. In particular, I will use the for a consensual return to democracy. The Tribunal as merely the guardian of the constitution, it may have jurisprudence of the Colombian Constitutional Court helped to legitimize the dictatorship at the same time in the end nudged the impeachment itself.

Concurring panels 96 Concurring panels 97 47 I nstitutional Dialogue: Courts through judicial completion under the conditions set there is little systematic empirical knowledge relating 48 I ntegrated rights in the and Parliaments forth by the Constitutional Court and the Supreme Court. to European constitutional courts. By systematically practice of regional human Hence, the constitutional dialogue on legislative lacu- analysing the case law of the Belgian Constitutional rights courts Courts are increasingly relied on to deal with politically nae does not end with Parliament’s non-response. Also Court (BeCC), which shares many features with other salient questions. Judicialization of politics does not en- the judicial response needs to be taken into account. European ‘Kelsenian’ constitutional courts, I aim to The panel will introduce concrete proposals for a ho- tirely remove these questions from the political sphere. After all, the Constitutional Court often offers guidelines widen the scope of knowledge on the forces that play listic (‘integrated’) approach to supranational human Well aware of the possible consequences of their judg- to the ordinary courts on how to fill the legislative ga, upon constitutional judging. Building on the literature rights justice through a hands-on legal exercise: the ments courts resort to strategic decision-making to thus eliminating the unconstitutionality. with regard to judicial behaviour, I hypothesize that rewriting of decisions of supranational human rights anticipate the reaction of actors such as the legislature the BeCC’s reasoning and outcome of constitutional courts. The paper presenters have thus redrafted and the public, and to ensure implementation. So far, James Kelly: The Supreme Court of Canada as cases, is (in part) shaped by strategic considerations. crucial passages of supranational human rights literature on judicial dialogue focused on conversa- an Implementer-dependent Institution: why Although judicial behaviour may be fuelled by the will- judgments. They will discuss their interventions in the tions with other courts rather than Parliaments. The dialogue theory must consider the political re- ingness to maximize its impact on the legitimacy and cases as well as the methodology and/or theoretical question arises as to how Parliaments react to court sponse to judicial review quality of democratic policy making, it is also con- framework that guided their approaches, and demon- decisions and whether deliberative behavior by courts This paper challenges the general assumption that strained by what is politically feasible. The Court may strate how human rights monitoring bodies may adopt might enhance the relations between these institutions. highest appellant courts are powerful policy actors par- act strategically within the institutional boundaries of an integrated approach to human rights law. This panel In line with ICON-S’ mission statement, the panel takes ticularly those that exercise ‘strong-form’ judicial review its competences, taking into account the anticipated is a spin-off of a book project. The book ‘Integrated an interdisciplinary perspective, with legal scholars (Tushnet). Instead of accepting that they are powerful, reactions from Parliament next to litigants or other human rights in practice. Rewriting human rights deci- conducting empirical research and political scientists this paper asks the following question – under what con- judges. To study the strategic behaviour of the BeCC, sions’ will be published by Edward Elgar Publishes in working on topics of judicial politics. In their presenta- ditions can a final appellant court such as the Supreme an extensive database on the case law of the CC was August 2017 (http://www.e-elgar.com/shop/integrated- tions, the participants give evidence from Belgium and Court of Canada be considered a powerful policy actor? built including all cases – annulment procedures as human-rights-in-practice). The panelists have rewrit- Canada to show that courts as implementer-dependent Relying on Mathew Hall’s framework, final appellant well as preliminary references – since its inception ten judgments ‘as if human rights law were really one’ institutions do not dominate the political playing field courts are viewed as ‘implementer-dependent’ insti- until 2015 (n=3145). The presentation focuses on borrowing or taking inspiration from developments and therefor rely on dialogue as a judicial strategy to tutions as they are reliant on lower courts or political three aspects of the Court’s case law that may be af- and interpretations throughout the whole multi-layered ensure compliance. Also, the implications of the legis- bodies such as the Parliament of Canada to implement fected by strategic considerations. First, it is argued human rights protection system. In this perspective, lative strategy of non-compliance for dialogue theory their rulings. Two variables are employed: whether deci- that modulated outcomes may serve as a strategic indivisibility and intersectionality are some among are presented as a framework to understand judicial- sions involve vertical or lateral issues; and the popularity compromise when a violation has been found but a many manifestations of a holistic approach to human parliamentary relationship. of the decision. Subordinate judicial actors implement ‘simple’ declaration of unconstitutionality would ex- rights. The rewriting exercise shows how theoretical vertical issues, where the highest appellant court is ceed the ‘tolerance interval’ acceptable to political and conceptual approaches from scholarship can be Participants Sarah Verstraelen confident that the ruling will be fully implemented. Non- actors. Although these outcomes are not necessarily translated into judicial practice. James Kelly judicial actors such as Parliament implement lateral more deferential towards legislative majorities, they Josephine De Jaegere issues, where compliance may be conditional upon the do not confront the legislature in the same way as a Participants Eva Brems Nicola Lupo popularity of the judicial ruling. This paper considers declaration of unconstitutionality. However, the study Valeska David Sarah Lambrecht several lateral issues reviewed by the Supreme Court of judicial behaviour should go beyond binary codings Marijke De Pauw Moderator Patricia Popelier of Canada where the Court declared Acts of Parliament of case outcomes and look into the motivational part of Lieselot Verdonck Room 8A-3-17 unconstitutional: safe-injection facilities; prostitution constitutional rulings. In particular, it is argued that the Moderator Eva Brems reform; and physician-assisted death. All three rulings Court may embed its rulings more strongly in citations Room 8A-3-27 involve issues where the governments of Stephen Harp- to external authorities in order to ensure compliance Sarah Verstraelen: Constitutional Dialogue on er (Conservative Party of Canada) and Justin Trudeau with its decisions. At the same time, the Court may be legislative lacunae (Liberal Party of Canada) passed legislative responses less clear on the implications of its ruling for the legis- Eva Brems: Integrated human rights In approximately 120 judgments, the Belgian Con- that can be characterized as non-compliance. This oc- lative branch when it estimates a vague opinion may The first presentation will introduce both the re- stitutional Court found legislative lacunae to violate the curred because the rulings involved morally conten- better serve the purpose of ensuring implementation. writing methodology and the overall idea of ‘human Constitution. These judgements incite a constitutional tious issues where a political coalition formed against Several regression analyses aim to lay bare whether rights integration’. The presentation will discuss both dialogue, first and foremost with Parliament, especially the judicial ruling, thus allowing Parliament to override strategic considerations are inherent to the BeCC’s the potential benefits of human rights integration, and in those cases where the Court explicitly emphasizes ‘strong-form’ judicial decisions by simple statutory behaviour. Although other causes cannot be entirely its necessary limits, introducing the concept of ‘smart that only the legislator can amend an unconstitutional amendment. This paper seeks to present a realistic partitioned, if the analysis reveals strong significant integration’. Without putting forward a singly model for absence of legislation. Although the case law of the con- assessment of judicial power in areas where highest ap- effects, this supports the hypothesis that strategic human rights integration, it will give a brief overview of stitutional court regarding these legislative omissions pellant courts, as ‘implementer-dependent’ institutions, considerations at least in part determine the BeCC’s methods and tools that have been used or could be has already been largely explored, the actual legislative deliver unpopular judicial rulings. In addition, it seeks to behaviour. This empirical analysis contributes to fun- used by supranational human rights courts to work reaction has not received much attention. Consequently, understand the implications of the legislative strategy damental discussions about the appropriate role for toward human rights integration. Finally, the presenta- in this paper the legislative response to these “lacuna- of non-compliance for dialogue theory as a framework judicial institutions in a democratic society and the tion will introduce the idea of a ‘global human rights judgements” was examined. The lack of any regular or to understand the judicial-parliamentary relationship. structure of their reasoning as strategic instrument conversation’ as a central feature of smart human systematic follow up or specific parliamentary proceed- to enforce compliance through dialogue. rights integration. ing to comply with the case law of the Constitutional Josephine De Jaegere: Strategic behavior of Court complicated the task. One of the findings is that constitutionals courts in consociational sys- Nicola Lupo: Discussant: the Italian perspective Valeska David: Caring rescuing or punishing? in one third of the cases where the Court instructed tems: empiical analysis of the Belgian COnsti- Rewriting R.M.S v Spain (European Court of Hu- the legislator to amend the legislation, a legislative re- tutional Court and implications Sarah Lambrecht: Discussant as referendaire at man Rights) from an integrated approach to the action is still missing. Consequently, the Court cannot In contrast with the extensive body of literature the Belgian Constitutional Court: perspectives rights of women and children in poverty be seen as a dominant actor in the dialogue. This may on judicial behaviour in countries with a common law from the Constitutional Court The ‘rescuing’ of children from poor and otherwise explain the judicial innovation of remedying certain gaps tradition (and especially on the US Supreme Court), ‘deviant’ families is a longstanding and yet unsettled

Concurring panels 98 Concurring panels 99 concern in many countries. Members of the Coun- therefore aim to re-write this judgment from an inte- 49 courts and Administrative 50 Be tween Policy-Makers and cil of Europe are no exception. The Council’s Parlia- grated perspective. A first issue to be addressed is the Power Bystanders: Constitutional mentary Assembly recently acknowledged that while inadequate consideration and lack of clarity regarding Courts of the former children from ‘vulnerable groups’ are disproportion- the relevance of external sources. This re-writing ex- This panel is concerned with judicial review of admin- Yugoslavia and Democratic ately represented in the care population of member ercise therefore entails the inclusion of a much more istrative action, seen from a comparative perspective. Transition states, no evidence suggests that parents who are explicit discussion of external instruments as regards The discussion will be aimed at stressing the impor- poor, less educated or who belong to minorities are the positive obligations of Member States to provide tance and limits of judicial control and at underlining It is widely assumed both in constitutional scholar- more likely to abuse or neglect their children. R.M.S v. care and to ensure the enjoyment of the right to inde- the role of the Courts in shaping the balance between ship and in international decision-making circles that Spain deals with this paradox. In 2005 Spanish social pendent living. In addition to the main international public power on the one hand, and individual and col- constitutional courts have a potential to act as cru- services removed a girl aged nearly 4 years old and (CRPD) and regional (Revised European Social Char- lective rights on the other hand. In particular, atten- cial actors in states undergoing democratic transition placed her in foster care on the sole account of her ter) relevant binding instruments, soft norms are also tion will be paid to the different scope and intensity of and consolidation. By and large they are expected to mother’s poverty. They saw each other for the last time used as interpretive tools. Secondly, it is argued that judicial review depending on – inter alia – the various play a role of a key democratic control and dispute- a few months after their forced separation. In 2013 the Court in McDonald failed to adequately consider types of public administrations involved, the powers resolution mechanism in the face of considerable the European Court of Human Rights (ECtHR) agreed the proportionality of the contested measures, namely exercised, the technical or scientific features at stake. constitutional and political uncertainty characterizing with the single young mother on the violation of her the reduction in care. This part of the judgment has Other aspects will be taken into consideration, such transitional states. But have the courts managed to right to family life, but dismissed her complaint on thus been re-written in light of those relevant external as the use of economic analysis by the Courts, the attain this assumed potential in accordance with high discrimination. Albeit the judgment is welcome and norms and what is considered to be a newly emerged reference to general principles of law in judicial review, scholarly expectations and public demand for justice offers grounds for praise its reasoning is fragmentary. European consensus on the rights of persons with dis- the ways to obtain a more substantial certainty and in such states? The panel addresses this complex It does not take full account of both the rights hold- abilities. In addition, the concept of dignity – which has predictability in judgments. Finally, the panel will deal question focusing on successor states of the for- ers and rights frameworks involved in the case. An thus far remained vague and ambiguous in the Court’s with the relationship between judicial review and extra- mer Yugoslavia. Treating these countries and their integrated approach to human rights calls for reading jurisprudence – is elaborated further and utilised in the judicial control of administrative power. constitutional courts as a distinct object of study is R.M.S from the perspective of regional and universal proportionality test and the interpretation of positive justified for at least two reasons: unlike other former normative developments on the rights of women, chil- rights. Finally, an equality perspective will is integrated Participants Paul Craig communist countries in Europe, Yugoslavia has had dren and people living in poverty. This paper analyses in the interpretation of the right of persons with dis- Giulio Napolitano a long tradition of constitutional adjudication, dating and rewrites the Strasbourg judgment by adopting abilities to care assistance and independent living. Eduardo Jordao back to 1963; secondly, transition to democracy in such integrated approach to better grasp the material, Alfredo Moliterni most states of the former Yugoslavia was a complex symbolic and decision-making injustices that took Lieselot Verdonck: Moving Human Rights Guy Seidman one, involving not only a transition from an authoritar- place in R.M.S. Firstly, the paper problematizes the al- Jurisprudence to a Higher Gear: Rewriting the Moderator Marco D’Alberti ian regime to democracy and fundamental economic location of children’s care and wellbeing to the ‘private’ case of the Kichwa Indigenous People of Room 8A-3-45 transformation, but also, to a greater or lesser degree, realm of families and questions the way the ECtHR Sarayaku v. Ecuador (Inter-American Court of transition from conflict to peace. addressed the impermissibility of family separation on Human Rights) the ground of poverty. Secondly, attention is drawn to This paper rewrites the judgment by the Inter- Paul Craig: Courts and Administrative Power Participants Sanja Baric the compounded stereotypes underlying the decisions American Court of Human Rights in the case of the Tatjana Papic of the Spanish authorities and which the ECtHR failed Kichwa Indigenous People of Sarayaku v. Ecuador of Giulio Napolitano: Courts and Administrative Edin Hodzic to uncover. The analysis thus presents a gendered ac- 2012, concerning oil exploration activities in indig- Power Moderator Tatjana Papic count of R.M.S and challenges prejudices about the enous territories. A more sustained integrative ap- Room 8B-3-03 experience of poverty and dominant notions on valued proach to human rights is adopted in relation to seven Eduardo Jordao: Courts and Administrative families. Thirdly, the paper revisits the ECtHR scrutiny themes, including innovative suggestions to move the Power of the domestic judicial control and decision-making human rights framework forward. To start, indigenous Sanja Baric: Constitutional Court of Croatia as process over both the girl’s removal and placement. peoples’ right to self-determination should feature at Alfredo Moliterni: Courts and Administrative a Facilitator of Democratic Transition: From the the forefront of the Court’s analysis, instead of the right Power Ex-YU to the EU Marijke De Pauw: Integrating disability rights to property. Second, the Court should have further de- The paper analyses the position and role of the into the ECHR: re-writing McDonald v. the Unit- veloped the norm of free, prior and informed consent, Guy Seidman: Courts and Administrative Power Croatian Constitutional Court in the country’s transition ed Kingdom in line with (and beyond) earlier jurisprudence. Third, to democracy and complex socio-political circum- Over the last decades, there has been growing at- the analysis of some potential human rights violations stances of the country. The paper argues that the Court tention for the fundamental rights of persons with dis- was unjustifiably absorbed into the Court’s reason- managed to protect core constitutional values and abilities at both the international and European level. ing under Article 21 ACHR. Fourth, children’s rights principles (even during the Homeland War), contribut- In several cases, the Strasbourg Court has recognized could have been more explicitly mainstreamed. Fifth, ing to a significant extent to the process of European- that the lack of State action may fall within the scope the right to live in a healthy environment should have ization of the Croatian legal order. Nonetheless, recent of Article 8 ECHR. It has, however, in very few cases been explicitly considered at best as an independent events put its very existence in peril and its sociologi- found a violation. The case of McDonald v. the United right, at least as included in the right to life. Sixth, the cal legitimacy and public perception have significantly Kingdom – concerning the reduction in night-time care Court should have explicitly acknowledged that non- deteriorated. The paper sketches the Court’s trajectory for a disabled woman – is to certain extent a positive state actors bear human rights obligations. Finally, it from early years of democratization to the country’s development as the Court recognized the possibility is suggested that the Court should move towards not integration into the European Union, identifying dif- for such an interference to constitute a breach of the only an integrative approach to human rights norms, ferent factors contributing to the variations in impact right to a private life. This paper, however, argues that but to one of human rights holders as well. and legitimacy. McDonald also represents a missed opportunity as the judges could have gone much further in the af- firmation of the rights of persons with disabilities, and

Concurring panels 100 Concurring panels 101 Tatjana Papic: At the Margins of Transition: The 51 I nternational Courts and to instrumentalise sensitive issues in line with the Haukur Karlsson: Court techniques for balanc- Role and Impact of the Constitutional Court of Politics already existing underlying structures of EU law and ing procedural rights: compensating for undue Serbia which would likely improve the level of transparency procedural delays in EU’s competition proce- The paper addresses the role of the Constitutional The papers of the panel explore the relationship be- and clarity of its judgments. dure Court of Serbia (SCC) in the legal and political life of tween legal arguments and politics. In particular, the In a recent string of case law (i.e. Gascogne and the Serbian society and its impact on the process of papers look at how the court tackles – or avoids – con- Juha Tuovinen: Balancing, the Margin of Ap- Others) cases before the CJEU, the issue of which the democratic consolidation in Serbia. It examines troversial cases within the context of EU Competition preciation and European Consensus: Why the procedural design is the most appropriate to address social and political context and other relevant factors – Law EU Social Policy and European human rights law. European Court of Human Rights Does Not Rely compensations for undue procedural delays was tried. history and institutional setting in particular – to frame on European Consensus in Article 8-11 Why It Interestingly, two fundamentally different approaches the discussion pertaining to the legitimacy of the SCC Participants Zane Rasnača Should, and How To Fix the Situation had previously been used by the CJEU (i.e. in Baus- in input, output, normative and sociological terms. The Juha Tuovinen This paper looks at the role that the European tahlgewebe and Der Grüne Punkt) and thus it became paper argues that from all these standpoints, SCC’s Haukur Karlsson consensus plays in the proportionality and balanc- imperative to decide which procedural design should legitimacy is weak. Accordingly, it is shown that the Moderator Haukur Karlsson ing exercises in terms of article 8-11 of the European prevail. The different approaches on one hand sug- SCC has been having only marginal role in political Room 8B-3-09 Convention on Human Rights (ECHR). I argue that gested addressing the issue of compensations for and legal life in Serbian society and modest impact on the standard account does not represent the way the procedural delays parallel with the substantive cartel the process of democratic consolidation. Even though court decides or should decide cases but that with procedure, and on the other hand that it should be the SCC has been more assertive in cases pertaining Zane Rasnača: Do “controversial cases” make some adjustments the situation could be remedied. addressed in a new court procedure before the Gen- to parliamentary democracy and human rights, when bad law? According to the standard account, proportionality eral Court. In resolving this dilemma, which ultimately one considers the public perception of the SCC and While the majority of cases coming before the and balancing represent the main devices for resolv- was a dilemma about procedural fairness within the the effects of its decisions in general, it appears that CJEU are rather mundane and do not draw any at- ing cases brought in terms of articles 8-11. In this meaning of Article 47 of the Charter, the Court re- even those rare decisions have had only a limited ef- tention, during the last two decades the CJEU has picture, the margin of appreciation is often argued to sorted to an unusual technique by asking some of the fect. This reveals poor output legitimacy of the SCC. increasingly been requested to decide on “contro- relate to the standard of review with which the court stakeholders for their preference with regards to the Namely, the effect of its decisions with respect to the versial” cases. Because today the CJEU is often undertakes the proportionality exercise. The role of two alternatives, as is discussed in AG Sharpston’s dominant political values in Serbian society is close seen as a forum that decides controversial cases it a European consensus in this process is sometimes Opinion: ‘The Court invited the 27 Member States, the to insignificant. Finally, the perceptions of the CC by experiences anything but “benign neglect”. On the argued to be to determine the breadth of the margin European Parliament and the Council to indicate in the general and expert public also reveal that it lacks contrary it has become a bogeyman whose “rule over of appreciation, with a consensus indicative of a nar- writing their views on the approach taken in, respec- both sociological and normative legitimacy. Britain” is to be feared and avoided at any cost, and rower margin and no consensus requiring a broader tively, Baustahlgewebe and Der Grüne Punkt. Seven its future decisions are seen as potentially fatal for margin. Here, I argue that this standard picture of Member States indicated a preference for the former, Edin Hodzic: The Role of Post-Yugoslav Consti- such long-standing national systems as the German the relationship between proportionality, the margin three favoured the latter, and six Member States ex- tutional Courts in Democratic Transition and co-determination model. This paper will explore the of appreciation and European consensus does not pressed no preference. The Council endorsed Baus- Consolidation: A Reflective Look from the Bos- Court’s approach to deciding such “controversial” reflect the practice of the court. The problems lie pri- tahlgewebe whilst acknowledging that the two rem- nian Exception cases and argue that so far the CJEU has failed marily in the way in which the substantive arguments edies coexist and neither is perfect. The European Using the case of Bosnia and Herzegovina as a to develop satisfactory techniques to solve them. (that is the normative and empirical policy arguments Parliament considered the Der Grüne Punkt approach point of departure, this paper takes a comparative look The judgments in Dano, Alimanovic, Brey, and Com- used in balancing) are not connected coherently. The to be better. (ECLI:EU:C:2013:360 para 119). By this at the role and impact of constitutional review in the mission v. United Kingdom, all illustrate a clash be- court relies on a European consensus quite haphaz- approach, the Court’s decisional modality shifts from processes of democratic transition and consolidation tween the EU citizens’ rights to equal treatment and ardly at different parts of the argument, very rarely the backward looking adjudicative function where a in countries of the former Yugoslavia. Given the domi- the financial interests of the member states in the defining what counts as a consensus. Consequently, decision is reached based on the pre-existing legal nant doctrinal presuppositions, one could expect that light of politically charged accusations of “welfare the European consensus plays a relatively arbitrary and material evidences; over to the forward looking constitutional courts would be weaker and less influen- tourism”. Furthermore, beyond dealing with these role in the way in which proportionality and balanc- political function where the consequences of the de- tial in the more complex states and political contexts controversial issues, these cases also represent a ing exercises are carried out. Finally, I will suggest cision are the primary determinants of its adequacy. studied: Macedonia, Kosovo, and, particularly, Bosnia complex interaction between the CJEU, member how the situation may be begun to be remedied. This Without prejudice to the constitutional implications and Herzegovina. The main argument of this paper states and EU legislator and various levels of EU irequires the disaggregation of proportionality into when a Court explicitly enters the sphere of inherently is, however, cautiously counter-intuitive: despite their law sources. Instead of analysing the “human cost” the various normative and empirical questions that it political decision making this paper examines how common tradition, similar origins, competences, in- these judgments represent, I am interested in tech- poses. It also involves the recognition that with regard the Court and its advocates general argue in their stitutional features, and similar social challenges, they niques the CJEU employed in solving them. I show to the questions that arise in proportionality and bal- capacity as political decision makers that seek to have been facing, the respective roles activism and that in these cases the CJEU seemed to yield to the ancing (and especially with regard to balancing) there rationalise how the procedure for compensating for impact of the constitutional courts in post-Yugoslav political pressure rather that follow its own previously are different consensuses that may be relevant. In at- undue procedural delays ought to be designed, rather constellation vary significantly with those operating in developed approaches (e.g. margin of appreciation) tributing the different weights to the situation at hand, than revealing how it is designed according to the law the politically more challenging environments generally and re-interpreted the EU law by shifting its underly- as balancing requires the ECtHR to do, the court must as it stands. This analysis reveals three incompat- scoring higher. In discussing the contributing factors, ing objectives away from the past interpretation and then consider various European consensuses in the ible rationalisations for how this procedural dilemma the paper shows that the equation of judicial influence also away from the approach taken by the legislator. course of its judgment. Finally, having elucidated the should be solved: one by AG Sharpston; second by AG in transition is complex and multi-layered. Acknowledg- Such approach has a consequence of further compli- relationship between balancing and European con- Wathelet; and the third by the CJEU. This discontent ing that the role of constitutional courts in such con- cating the CJEU’s own role and also the relationship sensus, we can reconstruct the relationship between about how a seemingly simple problem of procedural texts is largely influenced by the external environment, between various levels of EU law. In the final part of the three concepts for a more satisfactory account design should be approached, hints at a methodologi- such as the international involvement and the extent the paper I argue that the principle of “institutional of the role of European consensus in the balancing cal confusion. The CJEU and its officials seem out of of political diffusion, the paper also points attention balance” could serve as one source of inspiration for case law of the European Court. their league in balancing procedural fairness; using to important internal factors, such as the institutional developing new techniques on how to accommodate consequential arguments without engaging in proper details, assertion of authority, expertise of the judges, controversial cases in in the Court’s case law. I pro- quantitative analysis which the political decisional and overall quality of their decisions. pose some mechanisms that might allow the CJEU modality requires.

Concurring panels 102 Concurring panels 103 52 I nternational Courts and specifically, during the Eurocrisis years, the following uses the term ‘solidarity’ in its argumentation, and 53 I nternational Courts at Solidarity three mutations in the concept of EU solidarity can be whether new fields of solidarity are appearing in the a Crossroads: Regional observed: a) the exceptionality of charity: solidarity as case law of the Court. Both approaches are based on Integration in Crisis? Solidarity is a powerful instrument. It is the glue that acts of benevolence towards thirds; b) the exclusivity empirical data gathering through data base searches. holds together a community, a state or an entity of of egalitarian solidarity: national solidarity communi- Together the results will together feed into an analysis This panel revisits the concept of judicialization spe- states, for instance in an IO. On the other hand, if soli- ties becoming more exclusive; 3) solidarity among of the European Court of Human Rights’s use and ap- cifically within the realm of regional governance. Re- darity is missing, such an entity might fall apart, and non-equals: constant renegotiation of the costs and plication of solidarity. gional courts are experiencing significant pushback, political actors are very much aware of this reality. For benefits of solidarity as a rescuing mechanism, which embodied in a variety of attempts to undermine their instance, in an EU setting solidarity is a legal concept binds donating and receiving countries together in a Achilles Skordas: Solidarity as Contingency For- authority and legitimacy (Alter, Gathii and Helfer 2016). with legal bases in a number of different treaty provi- situation of emergency. mula: International Court of Justice and World The most extreme form of backlash is withdrawal from sions. However, the EU is presently challenged regard- Order the regional legal structures, which shows the revers- ing solidarity, due to among others the migration crisis, Dagmar Schiek: Solidarity in the EU and the Eu- If ‘hostility’ is the contingency formula of a ible nature of the integration process. Examples in- the economic crisis, Brexit, and some wider aspects ropean Court of Justice ‘Hobbesian’ international order, and ‘exchange’ is the clude Brexit in the EU, the Swiss referendum on with- of legal disintegration. Whereas solidarity is often as- Achieving and maintaining solidarity in the EU formula of the Lockean/Grotian order, then solidarity drawal from ECtHR, the Venezuelan withdrawal from sociated with civil society (bottom-up) or national/int’l seems to be an ever more challenging project. Politi- is the contingency formula of world society as a highly the IACtHR and the dissolution of the SADC Tribunal. legislators/treaty-makers (bottom-down), this panel cal projects putting individual nation states first and complex, asymmetrical, and all-encompassing global Other possible hurdles include insufficient financial re- will analyse the role which int’l courts play in relation forgoing any form of solidarity beyond national borders system. Risk is pervasive in the operations of function sources, potentially disruptive procedural reforms and to creating, sustaining and developing solidarity. How are gaining in momentum, epitomised by the UK’s de- systems, and world society has been transformed into changes in institutional design. The panel explores the is solidarity defined, addressed, and even created at cision to leave the EU among others, but by no means ‘world risk society’, characterized by the bifurcation systemic factors that are at the source of the pushback int’l courts? Can int’l courts promote solidarity when limited to English voters who decided the EU referen- ‘integration/disintegration’, by collisions of systems as well as the different judicial response strategies. political actors are causing disintegration? More spe- dum by their overwhelming majority for “LEAVE”. Can rationalities, and by the expansion of areas of exclu- Particular attention is paid to the role national courts cifically, firstly, the general state of solidarity in Europe the EU survive as a project of a community based on sion and violence. Solidarity is not taken here to mean play in the transnational judicial construction of au- is examined, and then secondly examined at two int’l law which promotes transnational solidarity between the core substantive value of a ‘Kantian’ order or of thority and legitimacy. Equally, the panel will consider courts in Europe, namely the CJEU and the ECtHR. citizens of different Member States, and partly even an order focusing on global justice and welfare; it is the instrumentalization of the “EU model”, where on Thirdly, finally, the perspective is broadened, so as to with citizens of non-member states? The EU Treaties rather the value-neutral contingency formula of the the one hand, actors in other regional organizations understand solidarity at int’l courts beyond Europe by at least express that solidarity is one of the EU’s values. current world order in the sense that the participants invoke European solutions in view of increasing their focusing on the ICJ. In a Community of Law the validity of this value would in international relations can manage risks of a global legitimacy. On the other hand, the actual application depend on its capacity as a legal principle. This paper scope only by coordinated action on all levels. This of the EU model differs significantly in every region. Participants Hans-Jörg Trenz explores whether and in how far the case law of the action can take a variety of forms, such as regulatory Dagmar Schiek Court of Justice supports solidarity as an EU legal agreements and disarmament agreements, or may Participants Salvatore Caserta Helle Krunke principle. The litmus test we suggest as a hypothesis is lead to a mutation of traditional legal concepts through Micha Wiebusch Achilles Skordas whether solidarity as a transactional category between unconventional state practice, or generate extra-legal Maksim Karliuk Hanne Petersen citizens of different nationalities is supported. We dis- and para-legal patterns viewed as informal interna- Pola Cebulak Moderator Helle Krunke and tinguish between receptive and participatory solidarity tional law. At this juncture, the role of the ICJ is crucial Marcelo Torelly Ulla Neergaard as a central element of social citizenship in the EU. in operationalizing solidarity as a contingency formula. Moderator Pola Cebulak Room 8B-3-19 On the basis of a numerical analysis of ECJ case law The Court sometimes decides bilateral disputes on Room 8B-3-33 using solidarity in its reasoning the paper exposes the narrow grounds but in other instances it has developed notions of solidarity used by the Court. This enables us the governance dimension and indicated the need of Hans-Jörg Trenz: European Solidarity in Times to decide whether jurisprudence on solidarity between concerted action. In such cases, solidarity appears Salvatore Caserta: Regional Integration through of Crisis: Towards Differentiated Integration Member States and solidarity of Member States with as a ‘guiding principle’ facilitating the interpretation Law and International Courts – the Central The principle of European solidarity, which was citizens on the move has the potential of international law and enabling the ICJ to build a American and Caribbean Cases originally conceived as one of the founding values of normative project for what ‘peace’ and ‘order’ mean The article builds an innovative theoretical frame- the European Union and as a motor for social cohe- Helle Krunke: Solidarity at the European Court in the 21st century. work with the goal of unveiling the preconditions al- sion is currently redefined. European solidarity has of Human Rights lowing ICs to become engines of supranationality in become one of the most contested claims in public Whereas solidarity is explicitly mentioned as a Hanne Petersen: Discussant different institutional and socio-political contexts. In so debates turning it into a mobilization force for intel- value in the EU treaties, the European Convention of doing, the article nuances the theoretical approaches lectuals political actors and citizens’ movements. By Human Rights and its protocols do not specifically on the relationship between supranationality and su- providing an analytical framework for the analysis of refer to solidarity as a value. This paper will investigate pranational adjudication. The article focuses on the such solidarity contestation in times of crises, we ar- the European Court of Human Rights’s use and ap- Central American Court of Justice (CACJ) and the Ca- gue that a new politics of differentiated solidarity in plication of solidarity from two different angles. One ribbean Court of Justice (CCJ), and it compares them the EU can be distinguished, which is different from approach will take the outset in how the court applies with the Court of Justice of the EU (CJEU). Both the the old politics of European identity. In line with and as the provisions in the European Convention of Human CACJ and the CCJ have been branded as institutional a consequence of the intensified argument in favour Rights and its protocols, which relate to solidarity. The copies of the Luxembourg Court. The two Courts have of differentiated integration, differentiated solidarity Court’s development of a quite far-reaching practice also borrowed key jurisprudential principles from the entails a shift of emphasis from the promotion of Eu- on the protection of social rights based on Article 1, CJEU with the goal of expanding the reach of Central ropean integration aiming to establish a reciprocal Protocol 1, on protection of property is at the core of American and Caribbean Community laws. Despite relationship among equals to the promotion of flex- this analysis. The second approach will take its outset this, both Courts have thus far failed to foster supra- ible arrangements among EU members discretion- in a search for case law from the Court, which uses the nationality in their respective systems. This is because ary redistributive mechanisms and hegemony. More term ‘solidarity’ in order to determine how the Court the conditions allowing ICs to become engines of in-

Concurring panels 104 Concurring panels 105 tegration lie for the most part outside the direct con- judiciary, which as the main interpretative authority its legal regime. Comparatively, while the adoption by 54 Wome n and Courts: Empirical trol of the judges most notably in other institutional, within the integration, has tried to take on an activist the European Court of Human Rights of the doctrine of Background for Theoretical political, and societal actors, such as national judges, role, somewhat borrowing approaches from the Eu- national margin of appreciation has been criticized for Thinking regional organs, legal and political elites, as well as ropean Union. In its turn, the Russian Constitutional not imposing supranational and international law more academics. The article hence suggests that ICs can Court has voiced its differences in certain approaches. firmly, from the 2000’s onwards the Inter-American This panel seeks to address the issue of courts’ legiti- become engines of de facto supranationality only to This variability of practices and approaches clearly Court of Human Rights (IACtHR) has started develop- macy from a specific perspective: that of their com- the extent to which these are supported by a set of undermines the ‘unity’ of the EAEU legal order and the ing a strict legal review doctrine and practice based position – and more specifically that of their gendered institutional, political, and societal pre-conditions al- interweaving of national and regional legal frameworks. on the American Convention. This emerging doctrine composition at their composition. In the world of in- lowing the concrete enforcement of the rulings of the This paper analyses the relationship of the national uses a domestic analogy to build up a constitutional ternational courts, the issue of gender has grown in IC at the regional and national levels. and regional legal orders through their judiciaries to claim that the American Convention is some sort of significance over the past decade. Women judges assess the possibilities for tensions between them. It regional constitutional document and that the San have started to be appointed in some courts where Micha Wiebusch: The African Judicial system: points out the sources of such tensions, which lie in José Court is likely to be its final interpreter, as same as they had never been offered seats and in some cases resilience or despair? certain indeterminacies within the EAEU legal order, a constitutional court in the domestic order. The article (see in particular the works of N. Grossman for inter- The continental judicial system in Africa is mak- temptations to assert power, and recent far-reaching describes this emergence and questions whether the national courts), gender balance has become or more ing great strides. Increasingly, political initiatives are practices of the Russian Constitutional Court (such as traditional hierarchical constitutional framework may or less stringent element in rules governing courts’ undertaken to confer a greater role to the continental the Yukos case and others). constitute an adequate structure to the human rights composition (African Court of Human and Peoples’ court system. First, a Court was established to deal regional regime. rights, European Court of Human Rights, Canada Su- solely with human rights (1998). Then, the Court’s ju- Pola Cebulak: Preliminary Ruling Questions preme Court). This evolution towards greater inclusion risdiction was expanded with a general international from Highest National Courts in the EU: Disobe- of women on judicial benches also causes backlash jurisdiction (2003) to eventually allow for adjudica- dience, Subversion or Dialogue? in some places (see for instance reluctance and re- tion in criminal matters as well (2014). However, the National judges are the ordinary judges of EU law sistance to a gender balance rule at the European protocols that would expand the Court’s jurisdiction and it is an obligation of the Member States to ensure Court of Human Rights). have not yet been sufficiently ratified to enter into effective judicial protection. However, the position of force. Concerning the criminal jurisdiction protocol the highest (constitutional or supreme) courts in terms Participants Rosemary Hunter this process might be expedited in light of the African of judicial politics and Europeanization of national ju- Stéphanie Hennette-Vauchez Union declaration to withdraw from the International diciary is particular, because these courts perform Ruth Rubio Marin Criminal Court. However, despite this apparent politi- the constitutional review function and are inherently Cecilia Bailliet cal confidence in the continental judicial system, justi- more politicized. Especially since the entry into force Neus Torbisco-Casals fied concerns exist concerning its future. A number of of the Charter of Fundamental Rights of the EU, the Moderator Gráinne de Búrca recent developments prompts such concerns. Firstly, Court of Justice of the EU (CJEU) has started adjudi- Room 8B-3-39 in light of the withdrawal of Rwanda from allowing in- cating more on human rights issues and performing dividual access to the Court, questions may be raised constitutional review at EU level (Digital Rights Ireland whether other countries will follow suit and whether (2014)). Thereby, it encroached upon the traditional role Rosemary Hunter: Feminist Judgments: Real this will deter countries from accepting such jurisdic- of highest courts as protectors of fundamental rights. and Imagined tion. Secondly, in a recent decision, the African Court Several highest courts in the EU have asked their first Feminist judgment re-writing projects have been has accepted the African Charter on Democracy Elec- preliminary ruling questions to the CJEU about validity launched in a number of common law countries in tions and Governance as a justiciable human rights or interpretation of EU law in the recent years (Spain the past 10 years. The Women’s Court of Canada instrument. This could lead to innovative but perhaps 2013, France 2013, Germany 2015) and several other published six rewritten judgments of the Canadian too radical jurisprudence to be politically accepted preliminary ruling questions from highest courts con- Supreme Court in 2008, and this was followed by by the member states. The paper will consider these cerned specifically human rights (Ireland 2014, Austria feminist judgment projects in the UK, Australia, the dimensions in greater detail, focusing on the political 2014). This increased dialogue appears, however, to be USA, Northern/Ireland, New Zealand, India and in In- and legal arguments behind these recent trends, and a result of increased tensions rather than increased ternational Law. The premise of these projects has argue that due to increasing faith in the regional vis-á- convergence. Some preliminary ruling references in- been to take an existing case and imagine the judg- vis the international system, the African court system cluded skepticism as to compatibility of the EU law ment a feminist judge might have written had she been holds more promise than any other alternative. measures with human rights protection guarantees at sitting on the court. By working with the same facts national level (Melloni (2013)), others amounted nearly and law and at the same time as the original decision, Maksim Karliuk: The disintegration of judiciary to an ultimatum (Gauweiler (2015)). Finally, two consti- these alternative judgments demonstrate powerfully within Eurasian integration tutional courts went as far as to expressly decide not that the decision rendered was not inevitable and that Eurasian integration has created a new legal order to apply a preliminary ruling judgment from the CJEU bringing a feminist perspective to the case can give of the Eurasian Economic Union (EAEU). This legal or- (Czech Republic (2012), Denmark (2016)). rise to different reasoning and often a different result. der has its own narrative, principles, hierarchy of rules, The feminist judgment projects have in turn prompted and certain innovations. The approaches of member Marcelo Torelly: The Conventionality Review reflection on the relationship between feminism and states’ legal orders towards it differ. However, even the Doctrine and the Inter-American Court of law and the ways in which feminist judging might be accommodating ones, such as the Russian one, are Human Rights Constitutional Claim accomplished. They have also prompted further re- not free from tensions. The recent practice of the Rus- This paper analyzes the constitutional claim of the search on instances of feminist judging in the ‘real sian Constitutional Court has claimed that Russia can Inter-American Human Rights Court (IACtHR) and its world’ and the implications for judicial appointments. set aside international obligations based on national recent development into a judicial review doctrine. It This paper will present an account of some of this work constitution, which targets the viability of the EAEU focuses on the protagonist role the IACtHR has de- with a particular focus on public law decision-making legal order. This is further complicated by the Eurasian veloped in the region and the expansionist nature of and the value of judicial diversity.

Concurring panels 106 Concurring panels 107 Stéphanie Hennette-Vauchez: “A deliberative the basis of these prominent “voices from the bench” 55 International Settlement ened interpretive trend. Thirdly, I will stress that, at the idea of quality” – Gender balance in the judi- that were generous and honest enough to share their Bodies and Judges: same time, ICSID broaden and curb individual rights. ciary: voices from the inside views with us for two days. On the basis of the origi- Rights, National Privileges It allows foreign legal companies which would not be In September 2014, we organized a closed work- nal material that we gathered, we have identified a and Law Principles. protected by domestic courts to file a(n international) shop at the European University Institute in Florence number of main topics or concept that help (i) frame Looking for a balance. lawsuit against national regulatory measures; how- that brought together an extraordinary group of female the issue and (ii) illustrate the debate over possible ever, it provides a limited protection to citizens who justices from around world as well as from a diversity normative grounds for gender-balance in the judiciary. Bilateral and mega-regional agreements usually pro- have only few rights of participation in international of judicial arenas. They had been invited to complete A number of proposals for reform that were discussed vide several dispute settlement mechanisms based arbitrations. Then I will explore the solutions and the a questionnaire prior to the workshop, on the basis and seemed particularly interesting are presented in on international arbitrations. Because of the peculiar arguments given by ICSID arbitrators vis-á-vis pub- of which we as organizers framed the discussion in the form of concluding remarks, based on a number features that characterize these resolution systems lic utilities/service public issues. I will show that IC- order to address a series of three sub-questions: (i) of empirical observations and experiences that were and the bodies managing them, multiple issues arise SID is practicing a kind of legality supervision (under should looking at courts as institutions help up see brought to the fore. on several legal sides, especially constitutional ones BITs’ clauses) of national administrative measures. why gender balance is a legitimate/desirable goal? linked to their legitimacy and independence from all Through this via, ICSID clearly indirectly reads and (ii) should looking at courts as judicial law-making au- Cecilia Bailliet: Power Dynamics, the Exclusion the parties: States, citizens and companies. Further- affects national administrative laws; although it does thorities ? (iii) if at all, what would be the most valid of Women on the International Judiciary and the more, this panel deals with the concerns related to not scrutinize if national administrative proceedings normative grounds for reform in favour of gender bal- Dilemmas of Pluralist Feminist Theory the lacking protection international dispute settle- have complied with their application. In conclusion, I ance in the judiciary? Subsequently to the workshop, The international judiciary has a notorious reputa- ment mechanisms guarantee to individual rights and will emphasize how these arbitrations may affect do- we complemented the fascinating accounts that had tion for maintainig a hierarchy in which participation with their discussed compatibility with the traditional mestic notions of public utilities/service public. been gathered by a series of in-depth interviews with is marked by bias in terms of gender, ethnicity, edu- separation of powers’ doctrine. This panel also aims other justices (mostly male) – on the basis of a mini- cational background, legal culture, and other similar at tracing the current and underground dynamics gov- Valerio Turchini: Challenges of Investor-State mally adapted questionnaire. The goal of the present factors. The aim to improve diversity among judges in erning the dispute resolution mechanisms in order to Dispute Settlement Mechanism: Current Per- paper is to contribute to process of agenda-setting order to promote true universality in the interpretation identify common traits not directly depending on the spectives After the Novartis v. India Case on the issue of gender balance in the judiciary, on of international law requires reflection upon the poten- agreement they are included in. Investor to State Dispute Settlement (ISDS) mech- the basis of these prominent “voices from the bench” tial contribution and drawbacks of relying on particular anisms are provided by several international and me- that were generous and honest enough to share their theoretical approaches as the vehicle for change. This Participants Federico Caporale ga-regional agreements. Their goal is to guarantee views with us for two days. On the basis of the origi- paper explores how pluralist feminist interpretations Valerio Turchini foreign investors a flexible tool to institute legal pro- nal material that we gathered, we have identified a color our understanding of the role of the female judge Andrea Averardi ceedings before specialized arbitral courts bypassing number of main topics or concept that help (i) frame (as well as the male judge) and explains to what extent Marsid Laze national judiciary ones, when they consider a domestic the issue and (ii) illustrate the debate over possible feminist theory may be considered to be emancipatory Moderator Elisabetta Morlino regulation in conflict with the provisions of an inter- normative grounds for gender-balance in the judiciary. but also risks suffering setbacks in practice. Room 8B-3-49 national agreement. Adopting an empirical approach, A number of proposals for reform that were discussed this paper aims at highlighting the main constitutional and seemed particularly interesting are presented in Neus Torbisco-Casals: Women and Minorities issues raised by ISDS systems, especially ones related the form of concluding remarks, based on a number Underrepresentation in the Judiciary: An Argu- Federico Caporale: ICSID arbitrations and the with the potential “erosion” of domestic courts’ powers of empirical observations and experiences that were ment for Diversity on the Bench notion of “service public”/public utility and role. Furthermore, the lack of independence from brought to the fore. Bilateral Investment Treaties are amongst the state parties represents a concern typically associated most relevant carriers of economic and legal integra- with international arbitrators that this paper tries to Ruth Rubio Marin: “A deliberative idea of qual- tion. Currently, more than 2500 BITs are in force and analyze in depth. For this purpose, the paper examines ity” – Gender balance in the judiciary: voices ICSID is the main forum for their dispute resolution. the famous judgment Novartis vs. Union of India, in from the inside Under BITs’ umbrella, ICSID has scrutinized public which a narrow interpretation of Indian law given by In September 2014 we organized a closed work- authority/puissance publique acts connected with the the Supreme Court seemed to hold back ISDS mecha- shop at the European University Institute in Florence regulation of public utilities given in concession to nism provided by TRIPS. This leading case’s prevailing that brought together an extraordinary group of female foreign companies, as the nullification of tariffs fixed consequences on the pharmaceutical sector will be justices from around world as well as from a diversity by Compañía de Aguas del Aconquija S.A. by the Ente analyzed too. The conclusions tries to draw a line and of judicial arenas. They had been invited to complete Regulador de Agua de Tucumón (ERSACT); the tariffs, understand the future and potential perspectives for a questionnaire prior to the workshop, on the basis the fines and the concession cancellation established ISDS mechanism on a general basis, taking into ac- of which we as organizers framed the discussion in by the Organismo Regulador de Aguas Bonaerense; count a worldwide political trend that appears basically order to address a series of three sub-questions: (i) the measures taken by the Tanzanian Minister of Wa- unfavorable to international agreements. should looking at courts as institutions help up see ter against the Dar es Salaam Water and Sewerage why gender balance is a legitimate/desirable goal?, Authority; the water supply concession renegotiation Andrea Averardi: Antitrust global governance (ii) should looking at courts as judicial law-making and cancellation imposed by the Ente Regulador de and industrial policies strategies: the Airbus- authorities?, (iii) if at all what would be the most valid Servicios Sanitarios (ENRESS). The paper will be struc- Boeing dispute over subsides to civil aircraft normative grounds for reform in favour of gender bal- tured in five parts. Firstly, I will briefly show that both The dispute over subsidies between the European ance in the judiciary? Subsequently to the workshop, the traditional notions of public utilities and service multinational Airbus Industries and the American Boe- we complemented the fascinating accounts that had public imply some authoritative powers (or at least ing Company which has been continuing for more than been gathered by a series of in-depth interviews with some powers which waive common law/civil law prin- twenty years, is the biggest commercial disagreement other justices (mostly male) – on the basis of a mini- ciples). Secondly, I will sketch that, although ICSID is case between the United States and the European mally adapted questionnaire. The goal of the present not bound by a stare decisis rule and BITs apply only Community of the recent global trade history. Since paper is to contribute to process of agenda-setting inter partes, the number and the consistency of ICSID 2004, as the negotiations between the European on the issue of gender balance in the judiciary, on arbitrations on these topics allow talking of a strength- Community and the United States failed, each part

Concurring panels 108 Concurring panels 109 filed different claims in front of the World Trade Organi- national jurisdictions, by one side, and the international 56 I nvestment Court System compromise solutions that create numerous compet- zation (WTO) Dispute Settlement Body (DSB), alleging and supranational ones by the other. One possible in Recent EU Free Trade ing court-like mechanisms instead of a universal court counterpart to provide “illegal subsidies” to the two solution has been represented by the rhetoric of the Agreements: Goals and may escalate the fragmentation of international law. aircraft companies. The Airbus-Boeing case arises “dialogue between courts” that has divided the legal Prospects relevant issues about the ability of the WTO DSB to scholars between supporters and detractors of this Güneş Ünüvar: Impossible ethics? A critical solve “hard cases” – as the Airbus-Boeing one – and, theory. The foregoing considerations show that it has Doctrinal and political proposals for multilateraliza- analysis of the rules on appointment of judges furthermore, about the relations between EU state become increasingly difficult to distinguish between tion of international investment dispute resolution in the new EU FTAs aid law and WTO law. More in detail, moving from the physiological and pathological elements of the rela- have been formulated since the 1940s and 1950s. This paper critically analyzes the new rules on eth- Airbus-Boeing case, this paper aims at providing a tionship, significantly more conflictual than in the past, However, it is only the recent Investment Court Sys- ics and appointment of the members of the invest- critical analysis of the WTO DSB’s role in antitrust between legislators and judges. This conflict reflects tem (ICS) project that may result in establishment of ment tribunals to be established under the investment global governance, considering particularly the prob- the tension between the principles on which is based a functioning set of international institutions. This protection chapters of various free trade agreements lem of the interactions between national and regional the constitutional State, respectively, the democratic system, forwarded by the European Commission (FTAs), such as the CETA and EU – Vietnam FTA. It ex- industrial policy choices and supranational trade law legitimacy of the political power and the identification in several ‘new wave’ EU Free Trade Agreements, amines the rationale behind these new rules, and why regulations. At this regard, the paper is divided into of its limits, consisting on the guarantee of fundamen- has been widely publicized as a remedy to deficien- they were deemed necessary or desirable vis-á-vis three parts. The first part examines briefly the legal tal rights. However, exactly the analysis of the evolution cies of the prevalent investment arbitration regime. rules that are in place in various IIAs regarding conflict background of the Airbus-Boeing Case. The second of these conflictual relationship can help us to better Replication of this model in subsequent treaties of of interests of arbitrators. It will specifically scrutinize part provides an in-depth analysis of the WTO Dispute identify the effects of the mentioned tension over the the EU with different partners also officially aims at the new restrictions on the appointment of members Settlement procedure, in the light of the Airbus-Boeing form of State and the form of government. stimulating creeping multilateralization of invest- of future investment tribunals, and how these rules case most recent development. The third and final part ment dispute resolution through eventual consolida- would, or could, apply in practice. It will ask the ques- focuses on the “blurred lines” which divide UE state tion of such parallel tribunals. The proposed panel tion of whether they are feasible in the light of current aid law and WTO law and emphasizes how uncertain seeks to present and discuss several pressing is- practice relating to the appointment of arbitrators in arethe relationship between industrial policies strate- sues related to the ICS, which may be decisive for ISDS, and the public backlash against the so-called gies and antitrust global governance. the success or failure of this project. It will explore “club” of a small group of private actors driving the inter alia such topics as hybrid character of the ICS adjudicatory practice. To that end, the research will ad- Marsid Laze: The constitutional implications jurisdictional controversy regarding compatibility of ditionally benefit from previous scholarly and empirical of the evolution of the relationship between the system with the CJEU powers and representation work on actors in international investment law such as judges and legisaltors of public interest. legal counsel arbitrators and expert witnesses; who It is universally known that the separation of pow- they are, and how they conduct their practice. ers principle has probably been the main foundation Participants Joanna Jemielniak and for the establishment of the modern state. It is also Shai Dothan Pawel Marcisz and Joanna Jemielniak: Inter- known as over the past few decades the relationship Güneş Ünüvar preting European Union Law under the Compre- between the three traditional powers, especially be- Pawel Marcisz and hensive Economic and Trade Agreement tween the legislative and the judiciary have signifi- Joanna Jemielniak Interference of the Comprehensive Economic cantly changed. As a result, the theme of the relation- Anna Aseeva and Trade Agreement between the European Union ship between judges and legislators is subject to a Moderator Shai Dothan and (EU) and Canada (CETA) with the powers of the Court renewed and vigorous controversy in all the States Joanna Jemielniak of Justice of the EU (CJEU) has been one of the key of constitutional democracy, under several respects. Room 8B-3-52 concerns raised in the doctrinal and political discus- The first and most important profile is the questions sion of CETA. This paper seeks to examine the po- regarding the identification of the boundaries in the tential conflict of competences between the CJEU exercise of their respective functions. One of the most Joanna Jemielniak and Shai Dothan: A Para- and the CETA Tribunal in regard to construing EU law. recurrent themes in the legislators / judges conflict is digm Shift? Arbitration and Court-Like Mecha- According to Article 8.31(2) CETA “in determining the the substitution of judges to parliaments in front of the nisms in Investors’ Disputes consistency of a measure with this Agreement, the inertia of the legislative power, which is sometimes Recently, several court-like mechanisms have Tribunal may consider as appropriate the domestic law expression of a conscious renunciation, for example, been considered as a substitute for investor-state of the disputing Party as a matter of fact”. Whereas the because some choices are likely to reduce electoral arbitration. Suggestions for creating such mecha- adopted approach is consistent with an established support. On the other side there have been cases nisms have been around for a long time, but new trade common law tradition of determination of content of of authentic interpretation laws aimed at overturning agreements may make court-like mechanisms for in- foreign law before a municipal court, it is not widely the predictable result of certain processes or even vestors’ disputes a reality. This paper starts by asking shared by the continental systems. Furthermore, this to revoke the res judicata. Creativity or the excess whether the shift from arbitration to court-like mecha- approach is particularly problematic when the appli- of judgments creativity is another reason of dispute, nism is likely to happen and how deep is the change cable rules are those of the EU law. One of the main but also one of the aspects that deserves to be con- to dispute resolution going to be. The advantages challenges in determining the content of applicable textualized and articulated in a series of points with and disadvantages of replacing ad-hoc arbitrators law in comparison with determining facts is that the the necessary differentiation between constitutional with court-like mechanisms are examined. Courts are former requires construction. In the paper, we adopt jurisdiction and ordinary jurisdiction. On the interna- more centralized than arbitrators, which gives them the semiotic stance that this is unavoidable even if tional and supranational level the expansion of judicial the ability to act in a coherent way and consider long- the law is treated as a fact (which in the discussed power shows two aspects that should be considered term consequences. However, centralization may im- context is further augmented by the explicit wording separately: the internal expansion within the legal sys- ply a greater risk of capture by special interests and of the CETA provisions). It is further argued that the tems of thesingle States, and the one caused by the could lead to more radical legal developments than CJEU enjoys, to a great extent, a monopoly for inter- growing influences interactions and conflicts between the stable system of diverse arbitration. Furthermore, preting EU law. This paper seeks to examine whether

Concurring panels 110 Concurring panels 111 Article 8.31(2) CETA is consistent with this monopoly. 57 judicial Protection of Kyriaki Pavlidou: Debating Social Rights in the law cases in the European Union in terms of costs, The second question, which the paper addresses, is Social Rights: Opportunities European Austerity Crisis: The Greek Reply formality of a lawsuit, the role of judges and issues how the CETA Tribunal should determine the content and Challenges The paper focuses on the judicial adjudication of around mandatory attorneys. of law under its consideration. Whereas Article 8.31(2) social rights in the context of the implemented auster- CETA points to the prevailing interpretation given to Despite the increased constitutionalization of social ity measures in the Greek legal order. At first the paper Alexandre de le Court: Social rights and the role the law by “the courts or authorities”, this does not rights, courts more often rely on general principles or civil examines how domestic lowest courts safeguarded of courts: the case of the application of the Eu- solve the problem of interpreting EU rules where a and political rights in order to protect people’s material social rights by indirectly enforcing constitutional ropean Social Charter by domestic judges relevant ruling by the CJEU is lacking. The paper also needs. Our panel aims to analyze the role of courts in the provisions in order to constitutionalize social rights While the European Social Charter has been gen- aims at analyzing procedural considerations related enforcement of social rights under the lens of constitu- and to interpret those in relation to the constitutional erally considered as containing only obligations of an to required and admissible evidence, as to the content tional and international human rights law. First, the pro- guarantee of human dignity. The paper then juxta- international character, partly reflecting the vision of of applicable law and to the scope of powers of the tection by the judiciary of social rights in times of financial poses this practice to the opposite interpretation of social rights as non-justiciable rights, it has been ap- CETA Tribunal in this regard. crisis will be explored through critical analysis of the austerity measures by the European and Supreme plied in various forms by ordinary and constitutional unexplored case law of the Constitutional Court of Rus- Greek Courts. The analysis further identifies and draws domestic courts. The study of the jurisprudence on Anna Aseeva: Representation of public interest sia and of the lowest and Supreme Greek Courts. Mov- parallels between the Greek and the American federal the justiciability of the European Social Charter in The through Investment Court System: prospects of ing to Africa, light will be shed on the underresearched system of judicial review and reflects on the multilevel Netherlands, Belgium, France, Spain and Germany re- access to justice and locus standi of local com- jurisprudence of African courts with the aim to identify structure of constitutionalism and human rights ar- veals a framework of application of international social munities in investment disputes regional strengths and weaknesses of new democracies chitecture in Europe. The paper aims to highlight the rights instruments which is more nuanced than those A judicialised model of dispute-settlement gener- judicially enforcing social rights. Moreover, given the pro- undocumented clash in constitutional control which centered on the doctrine of self-execution, and, at ally relies on domestic and regional courts alike as cedural peculiarities of social law cases, the existence of took place at a domestic level in Greece and brought the same time, allows the development of a critical institutional fora. It is largely assumed that a number of mechanisms which enable easier access to the justice forward questions of legitimacy and constitutionalism view on some forms of use of that doctrine. Moreover, regional courts created through economic integration on the basis of social rights will be investigated. After at a national and supranational level. the combination of the previous observations with the or development agreements have jurisdiction to adju- the analysis of national examples, the application of the analysis of the evolution of domestic jurisprudence in dicate disputes related, for example, to human rights. European Social Charter by ordinary and constitutional Tania Abbiate: An Overview of Social Rights Ad- the studied cases adds new elements to the debate Things are different with the investor-state disputes domestic courts will be explored. Lastly, the potential of judication in Africa on the legitimacy of courts in the adjudication of so- settlement (ISDS). Only few – and very recent – arrange- procedural models of social rights adjudication to miti- The constitutional wave which has interested Af- cial rights in general, and international social rights ments and initiatives actually bear investment court- gate the tension between democratic decision-making rica since the 1990s and has seen a new impetus in in particular. like mechanisms: EU-Vietnam Free Trade Agreement, over social welfare decisions will be discussed. the last years has produced advanced constitutions as well as EU-Canada Comprehensive Economic and which have at least on the paper improved the rule Anastasia Poulou: Social rights adjudication Trade Agreement agreement. Other regional courts Participants Olga Chesalina of law and constitutionalism. A specific feature has and democracy: an insuperable tension? may adjudicate individual complaints, but only so far Kyriaki Pavlidou been the growing recognition of social rights and the Academics and international bodies have so as they allege violations of community or domestic Tania Abbiate strengthening of the judiciary. The paper aims at shed- far put emphasis on the substantive parts of social law. These tribunals typically do not have jurisdiction Andreja Bogataj ding light on the jurisprudence of some African courts, rights, such as the minimum core obligations and the to interpret or apply international investment law. Still, Alexandre de le Court making reference to specific social rights such as the progressive realization doctrine. Equally important they are authorised to determine state compliance Anastasia Poulou rights to healthcare, food and adequate standard of though, is the procedural dimension of social rights, with the regional integration agreement and related Moderator Veronica Federico living. The protection of these rights is often provided which guarantees the ability of individuals to effectively legal instruments, which often include some protec- Room 8A-4-17 through civil and political rights, and the paper will participate in the making of welfare policy decisions. tions of individual or communal rights. This contribu- consider the procedural peculiarities of social rights Referring to cases from the South Africa and India, tion will seek to discuss possible effects of introducing adjudication in some African constitutional systems. my contribution aims to show how courts can adjudi- international investment court-like mechanisms on the Olga Chesalina: Judicial protection of social Moreover, it will be considered whether some regional cate social rights in a way that is not antagonistic but welfare distribution at the local level and related public rights in Russia in times of financial crises trends can be recognised, and which ones are the rather facilitative to the democratic process. Special interest questions. I see the term ‘welfare’ as extend- In the absence of specialised social courts in Rus- most promising judicial developments and the most emphasis will be laid on the potential of procedural ing beyond economic considerations and comprising sia claims related to social rights must be brought disappointing ones. models of social rights adjudication to mitigate the rights, institutions, etc. More precisely, it will attempt before civil courts. However, decisions of courts of the tension between democratic decision-making over to answer the following questions. What would be the first and second instances are often contradictory. This Andreja Bogataj: The procedural peculiarities of social welfare decisions and the exclusionary effects effects of introducing investment courts on the welfare, explains the important role that higher courts, and in social rights litigation in comparative perspec- of litigation. In order for the pitfalls of the procedural and whose welfare? Would the economic integration particular the Supreme Court and the Constitutional tive approach to be overcome, a suggestion will be made agreements’ potential judicialisation impede or en- Court of the Russian Federation, play in the protection Social law is meant to protect citizens in times of to establish a link between the procedural and the hance participatory rights of local communities? Poten- of social rights, especially in times of financial crisis. need and in this regard domestic courts play a crucial substantive approach of social rights. tial issues for discussion include but are not limited to: The Russian Constitution does not directly stipulate role in enforcing social rights. Individual entitlement Authoritative interpretation at different stages (negotia- any minimum standards of social security. Hence, the to protection under social law requires standards of tion, law-making, adjudication). Especially crucial to question arises as to whether minimum standards procedural law that may differ from those used in civil examine is a feasibility of creation and empowerment, regarding the level of social protection can be derived or administrative judicial procedures. There are in- as well as struggles for power/ simply strategies of from the decisions of the Constitutional Court. What equalities between the parties in terms of resources, adaptation of potential local community commissions obligations of the state regarding the protection of legal knowledge and experience. In my paper, I inquire on authoritative interpretation within states partaking in social rights may be derived from the Constitution and into the existence of mechanisms which compensate economic integration. Such commissions might have the decisions of the Constitutional Court? This paper the procedural inequality between the parties and en- (or seek) authority to interpret and eventually modify attempts to answer these questions by examining the able easier access to the justice on the basis of social economic integration agreements, and especially their decisions of the Constitutional Court of the RF related rights for the plaintiffs. From a comparative perspec- tribunals’ decisions. to retirement and unemployment social benefits. tive, I explore the procedural peculiarities of social

Concurring panels 112 Concurring panels 113 58 Institutions of the rule of law: interactions. Given the fact that in many states ex- on output and measures everything by quantitative 59 judging democratic and open new balance or new powers? ecutive and legislative powers have become strongly standards of efficiency. Such counterweight could be decision-making, citizen Panel I: Rethinking trias politica intertwined a veritable trias politica is merely an ideal. sought in the substitution of the idea of a governmental participation and the role In this paper, I will explore whether a model of balance ‘discretionary latitude of decision’ with principled and of transparency in the EU At the core of the current rule of law crisis is a prob- of powers can be extended to include non-state actors. full constraint by norms of appropriateness, subsidiar- in the Post-Lisbon Era lem of concentration of power, or conversely a lack of Is it possible to revise the theory to include counter- ity and proportionality. separation of powers. This shows the failure of classic powers outside of the state? My primary focus will The panel’s focus will analyse how far the much cel- trias politica: a constitution with a formal separation be on the possible role of civil society actors such as Kim Lane Scheppele: Discussant ebrated reforms introduced by the Lisbon Treaty and between three branches of government is not enough citizen groups, non-governmental organizations or the the requirements of the Charter of Fundamental Rights to safeguard the rule of law. The central question we media. The paper will develop a theoretical notion of aimed at enhancing citizens’ participation in the EU seek to answer is whether new powers or a new bal- counterpower and explore a distinction between direct decision-making process have been put in place by ance between rule of law institutions can be identified and indirect checks on government action. the EU political institutions. The panel will also outline in constitutional democracies. Starting point for these how far the recent case law of the Court of Justice has two panels is the core of the doctrine: there should Dimitrios Kyritsis: A Moral Map of Constitutional contributed to the fulfilment of this important value, not be concentration of the powers to regulate, to en- Polyphony especially considering the plethora of crises the EU is force and to review. Panel 1 will debate new ideas for This paper offers a normative account of separa- facing and is constantly struggling with due to a demo- a separation or balance of powers beyond the classic tion of powers. It argues that, like all constitutional cratic deficit. Seven years after the entry into force three branches of government. What does it mean law, separation of powers must be understood as a of the Lisbon Treaty, is the current EU a more demo- conceptually to claim that international actors can also legitimacy enhancer: political regimes that conform cratic and transparent polity, closer to its citizens? A strengthen the rule of law at the national level? How to it make a stronger moral claim to the allegiance of particular attention will be devoted to the access of can balance of powers across legal orders be theo- their citizens. Separation of powers achieves this by documents relating to the EU legislative procedure, in rized? Is it possible to reconceptualize the doctrine structuring cooperation among state institutions in particular “trilogues”, the informal meetings between beyond public actors? For instance, can we see citi- accordance with two imperatives: Division of labour the EP, the Council and the Commission used at every zens themselves as a new ‘counterpower’, or are there and checks and balances. The first imperative dictates stage of the EU legislative procedure, that have be- other private actors that can take up such a role? In this a) that government tasks be assigned to those bod- come a much debated issue in recent times (see the panel the focus is on discussing theoretical proposals ies that can carry them out efficiently or in a way that new Inter-institutional agreement on Better Regulation, to extend reshape or replace the traditional doctrine. instantiates relevant intrinsic values such as fairness the EU Ombudsman’s public consultation launched and b) that other bodies respect each other’s contribu- in December 2015, the pending action in front of the Participants Christoph Möllers tion. The second imperative dictates that mechanisms ECJ challenging the European Parliament’s decision Sanne Taekema be put in place for effectively monitoring government to refuse full access to documents relating to a leg- Dimitrios Kyritsis power and averting its misuse. The paper then consid- islative proposal) Lukas van den Berge ers two closely connected objections to this account. Kim Lane Scheppele The first rejects its instrumentalism and the second Participants Maria Elena Gennusa Moderator Sanne Taekema and dismisses it as undemocratic. Stefania Ninatti Thomas Riesthuis Antonio Tanca Room 8A-4-35 Lukas van den Berge: Judicial review of govern- Emilio De Capitani ment actions in the neoliberal era Giulia Tiberi The present era of privatization, decentralization Paolo Zicchittu Christoph Möllers: Is there a value of separated and individualization has seen an unprecedented Moderator Giulia Tiberi powers in the rise to populism? fragmentation of the public sphere a breakup of pub- Room 8A-4-47 The protection from tyranny is the oldest rationale lic imperium into separate pieces, not only left in the for separated powers. But far from having achieved hands of supranational or subnational authorities but any consensus on what the reference to “separation of also entrusted to private actors. Public law has ex- Maria Elena Gennusa: “As openly and as closely powers” really means we moderns also doubt if it is of perienced an all-out shift from government to gover- as possible to the citizen”: the constitutional any practical use. Maybe a sound political process is nance, replacing centralized bureaucratic rule with all dimension of “openness” and “transparency” the condition for a functioning separation and not, vice kinds of ‘co-regulatory mechanisms’ and ‘multilevel after the Lisbon Treaty versa, the separation an instrument to protect us from partnerships’ as allegedly more efficient methods of The paper discusses the constitutionalisation of populist politics. The talk tries to give more concrete regulation and policy-making. With the abandonment the principle of openness as a cornerstone of the Eu- answers to that problem and will attempt to show that of previously undisputed notions of strict legal verti- ropean democracy reflecting upon the link between any meaningful protective use of the notion lies in its cality and the undivided general interest, the separa- transparency and democracy. potential to protect a plurification of decision-making tion of powers doctrine as applied in most continental procedures. This does not correspond to a classical systems of administrative law is in need of serious Stefania Ninatti: The fundamental right of ac- reading of separated powers, but it might help us to rethinking. As I will argue in my paper, the governance cess to documents in the European Union: reintroduce the concept in a timely manner. model leaves little room for the classical notion of a reflecting on participatory democracy in the ‘freies Ermessen’ as a legal vacuum in which the en- recent CJEU’s case law regarding Art. 42 of the Sanne Taekema: In search of counterpowers. forcement of public power is only under democratic EU Charter and Art. 15 TFEU Can non-state actors curb government power? control. In fact, a truly democratic system requires The paper investigates the new dimension ac- Traditional separation or balance of powers fo- strong judiciary counterweight against the neoliberal quired by accessing documents after the Lisbon Treaty cusses on formal mandates of public actors and their spirit of governmentality that is more than ever intent (as expressly granted by art. 15 TFEU and Art. 42 of the

Concurring panels 114 Concurring panels 115 EU Charter of Fundamental Rights). It also looks into 60 judging social rights: is based on the constitutional guarantee of human with the law of the land and the intent of policy makers. the pivotal role so far played by the Court of Justice to The role of judicial review dignity. The paper seeks to conceptualize the social By analyzing selected cases from jurisdictions that enforce such a right together with a critical analysis of in shaping and protecting aspect of human dignity which is reflected in adjudi- typify different approaches to the judicialization of the the shortcomings of such a jurisprudence. social rights – domestic cation of the German federal courts and to put it in right to health, the paper will explore the reciprocity court practice in context context of the theoretical discussion on the scope of influences between courts and policy makers and Antonio Tanca: “Trilogues” transparency: the and content of human dignity. the influence of policy arguments in judicial decisions. Council’s perspective Courts around the world play an increasingly central Trends in policy making with regards to the right to One of the greatest achievements of the Lisbon role in developing the protection of social rights. Thus, Hà Lê Phan: The Right to Sanitation in Regional health at the international, regional, and national levels Treaty was how the new Treaty would help EU law mak- courts around the world are facing similar challenges Human Rights Courts will also be discussed to analyze how this process ing become much more transparent. What has been in performing judicial review of the state’s obligation to In May 2013, the entry into force of the Optional of reciprocal influences between policy makers and done so far in the EU Council of Ministers to fulfil this protect, respect and fulfill social rights. These include, Protocol to the International Covenant on Economic courts impacts our understanding of the process of promise? inter alia, arguments against the justiciable nature Social and Cultural (ESC) Rights arguably marked a implementing the right to health. of social and economic rights, questions regarding paradigm shift in the long-standing justiciability de- Emilio De Capitani: The principle of “the wid- the nature and character of the judicial review of the bate. The UN Committee on ESC Rights was vested Misha Plagis: Constructing Access to Justice as est possible access” to legislative preparatory legislature and the substantive dilemma of creating a with the mandate to examine individual and collective a Substantive Right, the Supreme Court of India documents and the European Parliament’s legal standard to the protection of social rights, where communications on a state party’s violation of socio- Access to justice is often used in law and devel- approach: arguments for an action before the such standards are not specified by the legislature. economic rights. However only two views towards opment literature without much attention to its exact Court of Justice This panel will explore different examples of the role Spain have been adopted to date while eight cases are definition or connotation. Whether it be in the interna- In this paper the issue of transparent law making of domestic courts in shaping the protection of social still pending. As views adopted by UN treaty monitor- tional sphere or the local scholars agree that access after Lisbon will be discussed in the light of the pend- rights. Panelist will present works which integrate a ing bodies have no binding legal effect, the complaints to justice is important; it ensures that the plethora of ing action brought against the European Parliament’s theoretical discussion with an analysis of the jurispru- procedure of the Optional Protocol has had a limited rights found in conventions and constitutions can be decision to refuse full access to documents relating to dence regarding the right to health, the right to sanita- impact on the implementation of ESC rights. The role enforced, should they be violated. The ability to attain a legislative proposal, which will be decided in the near tion, the right to dignified minimum existence, and the of domestic and regional human rights courts remains redress for a wrong is a basic foundation of the ‘rule of future by the Court of Justice (Case before the General right to access justice. Through these examples, the central for enforcing ESC rights. The paper assesses law’. What access to justice means in a certain context Court T-540/15, De Capitani v. European Parliament). panel will provide a broad comparative perspective how the European, Inter-American, African, Arab and or jurisdiction, however, is often left to the wayside. As on the development of the protection of social rights ASEAN human rights regimes deal with claims related a result, legal scholars discuss the same term, but Giulia Tiberi: Transparency v. Privacy and Se- by domestic judicial review. to sanitation. While the European Convention on Hu- in different ways and with different expectations of crecy man Rights originally limited its scope to civil and po- what should be performed by the state and legal in- The paper will discuss the judicial interpretation Participants Michal Kramer litical rights, the Strasbourg Court has made use of stitutions. This paper explores the development of of the exceptions to the right to accessing official Hà Lê Phan the “living instrument” doctrine to fit socio-economic the term access to justice by the Supreme Court of documents especially in cases where it is at stake the Bruck Teshome concerns within the wording of the Convention. The India. The development of the term in Supreme Court balancing between transparency and the conflicting Misha Plagis Inter-American Convention of Human Rights encom- case law has evolved from the more traditional access fundamental right to personal data protection and in Moderator Michal Kramer passes a number of relevant ESC rights. In African, to lawyers and non-discriminatory access to courts, the area of international relations. Room 8B-4-03 Arab and ASEAN human rights documents, the right to addressing the socio-economic needs of litigants. to sanitation is expressly recognized, but implementa- The importance of the right is further illustrated by the Paolo Zicchittu: The European Citizens’ Initia- tion mechanisms are often ineffective or non-existent. proposed constitutional amendment to add access tive: promise or reality? Michal Kramer: The right to a dignified mini- Do regional human rights regimes afford sufficient to justice as a substantive right to the Constitution of The paper will critically assess the implementa- mum existence and its conception of human protection to the right to sanitation? India. As the gap in access to judicial institutions re- tion of the European Citizens’ Initiative (ECI) after five dignity – A review of the German adjudication mains problematic in Indian society, how the Supreme years of the entry into application of Regulation (EU) The legal, philosophical, and political debate on Bruck Teshome: Reciprocal Influences of Ju- Court conceptualizes and addresses the social and No 211/2011 (ECI Regulation), in order to verify if the the nature of social rights has changed dramatically dicial Decisions and Policy Arguments in the economic factors that impeded such access, have ECI is truly a mechanism aimed at increasing direct in the last two decades. In legal and philosophical Implementation of the Right to Health: Trends major implications on the ability of marginalized com- democracy by enabling the EU citizens to participate thinking, there is a growing recognition of social rights and Dilemmas munities to enforce their fundamental rights. in the development of EU policies. In this respect, the as human rights, as well as recognition of their justi- Domestic and regional courts are increasingly recent Court of Justice case law will be considered. ciable nature. Although economic and social rights playing a crucial role in resolving policy issues and have grown increasingly common in national consti- as platforms where economic and social rights could tutions, the protection of economic and social rights be enforced. Domestic courts are often as recipients via constitutional jurisprudence is not limited to a judi- of international and regional human rights law and cial interpretation of social rights provisions in written assumed that they incorporate these standards in de- constitutions. The understanding that a constitution cisions involving economic and social rights. They are is more than its text together with a judicial culture also expected to review the impact of public policy and of developed judicial or quasi-judicial review for civil executive action where it is deemed to be against the and political rights provide the underlying conditions law or the constitution. In situations where the law is for the protection of social rights on the basis of other unclear or there is a plurality of conflict interpretations, constitutional principles by ways of judicial interpreta- courts also turn to policy arguments to fill lacuna in the tion and judicial review. Against this background, this law. The proposed paper will examine the dilemmas paper will analyze the constitutional right to a dignified that exist for courts in incorporating internationally existence that was developed in the recent adjudica- developed standards while at the same time resolv- tion of the German Federal Constitutional Court and ing questions of law using arguments that are in line

Concurring panels 116 Concurring panels 117 61 N ational Security: The Power restrict constitutional rights and as a buffer against a operations, questions of national security are thereby 62 judICIAL REASONING AND of Courts to Shape Public Law resurgent politics of exclusion. The paper explores implicated. Further all of these issues involve the rec- TECHNIQUE: NAVIGATING ITS Within and Across Borders the ramifications not only for the United States, but for onciliation by courts of questions of national security INS AND OUTS the region as well, and examines these developments and the protection of individual rights. The paper will Courts, both domestically and internationally, have be- against the background of decisions by regional and examine the approach taken by the English courts to Consideration given to judicial reasoning in legal come increasingly engaged in addressing challenges international tribunals. The paper draws on a cross- these questions, and the manner in which they, on the scholarship is underdeveloped. However, the material that fall within traditional spheres of deference to the disciplinary approach that combines law, political one hand have sought to reconcile the potentially con- expansion of law and the proliferation of judicial and executive. Courts, moreover, have pursued this ex- theory, and sociological perspectives on membership. flicting obligations under international human rights quasi-judicial fora necessitate scholarship to expand panded role not only where a state acts domestically, law and international humanitarian law, and on the on the methods relied on by judges. Our proposed but also where it acts beyond its territorial and juris- Myriam Feinberg: The role of court in regulating other, the balance which has been struck between panel aims at exploring the practice of law identifi- dictional borders. The papers in this panel examine online incitement to terrorism individual rights and issues of national security. cation, interpretation and application in adjudication the growing power of courts to shape public law on Online incitement to terrorism raises a number of from diverse standpoints: the function of formalistic matters implicating domestic and international secu- legal issues including in particular the conflict between Dimitrios Kagiaros: The Role of the European reasoning, the interplay between sources of law and rity, including military operations, terrorist threats, and the obligation of each state to protect the security of Court of Human Rights in Shaping the Law of judicial reasoning, the abuse of deductive techniques cross-border migration. The papers cut across various their population from the threat of terrorist attacks and State Surveillance by judges, as well as judicial authority and its impact substantive areas, including constitutional criminal their national and international obligations to protect In assessing whether a restriction to a qualified on the law as a system. The panel will thus make an immigration and human rights law. The papers com- other human rights of individuals including those of right amounts to a violation the European Court of impressionistic vignette of issues relating to judicial pare the different approaches of regional tribunals and the terrorist suspects. Because online incitement to Human Rights first examines whether the restriction reasoning whilst traversing the network of judicial con- national courts in addressing such issues as online terrorism concerns the protection of human rights was ‘prescribed by law’. What this entails is that con- trol over public power. incitement to terrorism, bulk interception of commu- such as freedom of speech and privacy which are not tracting parties to the Convention must ensure that nications and mass surveillance, military operations unlimited rights their practical application will need to laws interfering with rights are framed in a manner that Participants Mehdi Belkahla abroad, and increased restrictions on migration across be decided by courts. In this context non-domestic guarantees they are compatible with Convention stan- Matina Papadaki borders. courts in particular the European court of human rights dards. In light of this the paper seeks to examine the Parvathi Menon will decide on the balance that states have to apply influence of the Court in European law-making in the Gleider Ignacio Hernández Participants Jonathan Hafetz in their own jurisdiction. In matters of national and area of interception of communications and surveil- Moderator André Delgado Casteleiro Myriam Feinberg international security where courts have traditionally lance. The paper focuses on two issues. Firstly it aims Room 8B-4-19 Silvia Borelli deferred to the executive branch the involvement of to critically assess the Convention requirements in Dimitrios Kagiaros these regional courts is of critical nature. This is the relation to surveillance laws. Dating back to the 1970s Moderator Jonathan Hafetz case especially due to the transnational nature of and 1980s the ECtHR has identified state surveillance Mehdi Belkahla: Is There Still Something To Room 8B-4-09 cyberspace. The article examines the role of courts as a legitimate means to safeguard democratic insti- Learn From Formalism(s) In and About Judicial in the transnational regulation of online incitement tutions from the threats of terrorism espionage and Reasoning? to terrorism. It focuses on the specific example of other subversive elements seeking to undermine the Formalistic accounts of the way adjudicators Jonathan Hafetz: Courts, Legal Rights, and the Facebook and on content that can be described as democratic order. At the same time however the Court interpret and apply the law to reach their decisions Politics of Exclusion: Denying Constitutional online incitement to terrorism appearing on the social has established stringent requirements that states are came under fire with the rise of sociological and real- Protections by Redefining Borders network. It compares the way France and Israel deal expected to comply with when building a surveillance ist legal theories. Few nowadays venture the opinion The paper examines current attempts to limit with this issue in order to contrast jurisdictions that are framework. These requirements were reinforced in that judicial decision-making is tantamount to what constitutional protections available to noncitizens subject to European courts with those that are not but more recent judgments where the Court examined Roscoe Pound would wittily call mechanical jurispru- in the United States facing immigration detention possess a strong judicial system. the compatibility with the Convention of new surveil- dence. Logic-based models – of which the syllogistic and removal. In line with the conference theme, the lance technologies that permit bulk interception of form is the hallmark – fall short of providing an all- paper examines the role of courts in mediating be- Silvia Borelli: Litigating War? Domestic Courts communications and indiscriminate mass surveillance. encompassing understanding of judicial reasoning. Yet tween public power and law. It focuses on the clash and Military Operations Abroad Secondly with a series of further applications chal- there is still much to be said about this approach which between security and legal rights, and its implications In recent years, the extra-territorial applicability of lenging mass surveillance pending before the Court some theorists resist discarding. Beyond that some for courts in a pluralistic society. The paper examines the European Convention on Human Rights (ECHR) in the aftermath of the Snowden disclosures and at instances of contemporary judicial practice seem to two prominent immigration cases, both pending in has been recognized by the European Court such that a time when the big European players in the field of reveal the permanency of the (idealized) Aristotelian the U.S. Supreme Court. One case, Jennings v. Ro- the European Convention now undoubtedly applies surveillance (the UK and Russia) are in conflict with the heritage. In this regard, I will demonstrate how and driguez, challenges the denial of bond hearings to to at least some action of States parties conducting broader Convention system the paper aims to critically why in some circumstances and in many jurisdictions, noncitizens facing prolonged immigration detention; military operations abroad. As a direct consequence, assess the challenges the Court faces in continuing judges appear to make use of logico-deductive rea- the other, Castro v. Department of Homeland Security, a series of new issues concerning the interaction of to uphold these standards. soning when they apply certain specifically articulated involves the denial of judicial review to asylum seekers international humanitarian law and international hu- legal norms. from Central America subject to expedited immigra- man rights law have emerged and have been litigated tion removal procedures. Both cases require courts before the courts of ECHR Contracting States includ- Matina Papadaki: General Principles of Law as a to evaluate shifting conceptions of the border as a ing issues relating to the obligation to investigate kill- Judicial Technique demarcation line for constitutional rights. In the name ings, disappearances and allegations of torture during This presentation will focus on the use of general of enhanced security, the government seeks not only military operations, questions of the legal basis for principles of law in judicial decisions of international to deny rights to those outside the country, but also preventive detention of individuals during situations courts as a technique employed by judges rather than to redraw legal boundary lines inside the country to of occupation, and questions of the incidence of the a source of law. General principles of law were initially exclude individuals historically considered within the rights of members of a State Party’s own armed forces. conceived as gap-fillers and as an antidote to sparse Constitution’s protections. The paper explains why To the extent that the relevant obligations involve con- international law rules as the drafting of the Permanent courts play an important role in the face of efforts to straints upon the freedom of a State to conduct military Court of International Justice shows. On the converse,

Concurring panels 118 Concurring panels 119 nowadays we are witnessing an ever-increasing den- and together are necessary conditions for the exis- 63 judicialisation of Human Rights 64 judicialization of politics sity of international law both in terms of adjudicative tence of the international legal system itself. Sources Law and Policy: a Vehicle in (an increasingly multi­ fora and international legal instruments. This invites, doctrine reinforces and buttresses international law’s for Effective Protection of polar) Europe: Past, Present, in my view, a rethinking of the use of general princi- claim to constitute a legal system; and the legal system Fundamental Rights? Future ples in international law. If gaps are rarer and parallel, demands and requires that legal sources exist within potentially conflicting norms and decisions are more it – a form of normative closure which constitutes the The panel introduces the Leiden Research Group ‘Ef- The Panel will examine the extent of modifications of frequent, general principles of law could assume an legal system itself. Judicial institutions, as ‘legal of- fective Protection of Fundamental Rights in a Pluralist the constitutional balances of power in the EU member additional law of safeguarding system coherence. For ficials’ within that system, are essential for the ap- World’. Though judicialisation is in itself not a new phe- states as result of the expansion of the role of courts these reasons, I will try to show through an examination plication, interpretation and development of sources: nomenon, in the context of today’s globalizing world (national and international) characteristic to the past of case law that general principles are more accurately without their intervention the legal system cannot exist. and the increasing interaction between legal systems, two decades. Taking into consideration contested le- described as a result of judicial reasoning responding In this respect, the social practices of those judicial judicialisation is taking on entirely new dimensions gal areas where political divisions and antagonisms to instances where there is either sparsity or density institutions, who are part of the institutional workings and is giving rise to new and complex issues. This is within European societies are manifest, the panel will of international law norms. Thus, general principles of the system, and especially those with a law-applying especially true in the field of fundamental rights. At first investigate whether the European Courts (CJEU and are not so much a source of legal obligation of inter- function, are of heightened relevance in conceiving of sight, this judicialisation in the area of human rights ECtHR) have been capable to exert any meaningful national law subjects but more of a yardstick to as- international law as a system. This recursive relation- seems to be a positive development that furthers the and durable influence on the national law of the EU sess their actions in the context of adjudication. This ship privileges unity coherence and the existence of a effective protection of human rights and fundamental states, or on the alignment of this law with normative means that their identification by the judges is what unifying inner logic which transcends mere inter-State freedoms at the international regional and domestic values promoted at the EU level. Because the recent primarily confirms their existence if not creates them. relations and constitutes a legal structure. Accepting a level. However, judicialisation also raises a number developments within the EU, such as the rise of popu- This however calls into question both the positivist conception of system as rooted in such social dynam- of issues that need to be addressed, such as the list movements, “illiberal democracy” or the results understanding of general principles of law and their ics might help the international lawyer to reflect on democratic basis of law-making and separation of of the British 2016 referendum appear to have the functional reconceptualization. her position as a professional actor within the system. powers. Against this background, judicialisation as potential to undo the judicialization of politics and the a means to further fundamental rights protection is continuous expansion of the courts’ power charac- Parvathi Menon: A Deduction of Incoherence: very much in need of new and innovative research teristic to the past two decades, the panel will further Widening the Minor(ity) Gaps in Judicial Rea- concerning its meaning workings and impact. Three examine the implications of these developments and soning elements merit particular attention during the panel: in particular of the ‘Brexit’ for the ‘judicialization of Induction and deduction, as methods of interpre- a.Conceptualization of judicialisation in the area of politics’ in the UK and in Europe. Finally, the panel will tation, are premised on the coherence/internal logical human rights; b.Judicialisation in relation to substan- examine The Juridicisation of International Trade and consistency of the system of enacted legal norms. Us- tive areas of human rights; c.Potential and limitations Investment and the implications of the recent politi- ing such reasoning obliterates the hidden ideologies of of judicialisation for the effective protection of funda- cal disputes for the future of the international dispute the judges, creating a veneer of a “correct” interpreta- mental rights. settlements. tion. Relying on the vastly indeterminate field of minor- ity rights, I would like to assess the (in)applicability of Participants Ingrid Leijten Participants Rafal Mańko these methods of interpretation, keeping in mind the Titia Loenen Liviu Damsa various indices the law provides. Identity, which forms Jan-Peter Loof Sara Razai the basis of the claim against the majority/dominant Hans-Martien ten Napel Kirk Ewan culture, alternates between essentializing what it is Jerfi Uzman Catalin Gabriel Stanescu to have some particular trait that sets its possessors Moderator Titia Loenen Moderator Liviu Damsa apart, in order to develop and legitimate claims, and Room 8B-4-33 Room 8B-4-43 trying to reconcile those claims when they conflict. In order to demonstrate the lacking coherence of the system, my study shall involve an examination of the Ingrid Leijten: Human rights and social policy: Rafal Mańko: European Court of Justice and the diachronic and synchronic development of the lin- interpretation, integration, judicialization political: a cee perspective guistics surrounding the meaning of a ‘minority’ by The paper will explore, from the perspective of judges within different judicial systems; despite the Titia Loenen: Judicialization of social rights and Central and Eastern Europe, the role of the European evolution of what a ‘minority’ entails this paper shall the tensions between individual and collective Court of Justice as an actor taking political decisions. demonstrate how the appearance of objectivity in de- aspects of social rights claims The notion of the ‘political’ will be understood here termining its meaning has perpetuated the abuse of especially along the lines of Chantal Mouffe as de- inductive and deductive reasoning, and vice versa. Jan-Peter Loof: Rights interference by intelli- noting existing agonisms within European societies, gence services: the (limited) ability of courts to especially of an economic nature (e.g. consumers vs. Gleider Ignacio Hernández: Judicial Institutions serve as a procedural safeguard traders, employers vs. employees, debtors vs. banks). as Systemic Agents of International law First of all, the paper will focus on significant ECJ Sources doctrine plays a huge role in construing Hans-Martien ten Napel: The European Court of case-law in which the existing body of legal texts did international law as a system, too often taken as an Human Rights’ “constitutional morality” in the not provide a clear answer (‘hard cases’), forcing the un-explored tenet of faith within the international legal religious domain Court to take what was ultimately a political decision. discipline. But nowhere is it so important than as a tool Special focus will be given to cases of social agonisms used by judicial institutions to affirm their authority Jerfi Uzman: Power to the people or institutional mentioned above. In a second move, the paper will as systemic agents within the international legal or- courtesy? Judicialization and counterjudicial- explore the role of CEE judiciaries in triggering such der. This paper will argue that judicial institutions and ization of rights in an era of populism questions (in the preliminary reference procedure) sources exist in a mutually constitutive relationship, as well as the impact of such decisions on national

Concurring panels 120 Concurring panels 121 courts. The paper will look no only on the aftermath Sara Razai: Judicialisation of Politics in the 65 lANguage in International how nationalism and national politics are in work in of concrete preliminary reference procedures initiated Arab World Courts debates over what languages should be used as the by CEE judges but also on spontaneous references to official and working languages of these bodies, and ECJ case-law outside the content of the preliminaty Kirk Ewan: The role of the CJEU in the develop- This panel explores the role of language in international consider the implications of this phenomenon for the reference procedure, as for instance in the litigation ment of the concept of EU Citizenship courts, in its dual role as medium and as subject of structure of international law. I conclude that linguistic between Polish mortgage debtors and Polish banks The concept of EU Citizenship was introduced by adjudication. International courts are places in which nationalism is both the subject of ‘management’ by over loan agreements denominated in Swiss francs. As the Maastricht Treaty in 1992, but was founded upon actors from different states argue about the law bring- international courts and a force which shapes the na- a third step, the paper will try to give an overall assess- much more established principles of free movement ing to the courtroom a variety of linguistic backgrounds. ture and operation of international courts themselves. ment of the role of the ECJ case-law in determining for citizens of Member States entrenched in the trea- To enable communication and frame the conditions for the outcomes of agonisms (the realm of the political) ties. The codification of EU Citizenship in the trea- decision-making, procedural rules contain provisions Dana Schmalz: More than conveyance of infor- in CEE Member States by assessing whether such ties created ideas of a much more tangible European about the working languages and possible languages mation: The role of the mother tongue in the impact can be considered as meaningful, durable and identity, and along with it, ideas of fundamental rights that parties can use before the court, as well as estab- jurisprudence of the European Court of Human broad, or rather selective, erratic and ocurring merely that this identity brings. However, the concept of EU lishing a framework for translation/interpretation where Rights on a case-by-case basis in some specific sectors. Citizenship as it is expressed in the treaties is rather necessary. Examining how these rules influence the This paper examines which weight the European bland and matter-of-fact. It leaves many questions operation of international courts, and thus the creation Court of Human Rights (ECtHR) has given to the sig- Liviu Damsa: Limited Power for National and unanswered, and the answers have generally come of international law, forms one interest of the panel. nificance of a person’s mother tongue in adjudicating International Courts in deeply fragmented from judgments of the CJEU. These judgments have At the same time, language is not only the medium language rights cases. With regard to language as a polities? The strange case of Romanian post- helped to develop the concept of citizenship both through which law is negotiated, but also a subject prerequisite of democratic processes, a broad range communist restitution. before and after its official codification in the Maas- matter courts are called to decide about. Since ques- of considerations exists about the complex intertwine- The judicialization of politics and the continuous tricht Treaty. The purpose of this paper is to analyse tions of linguistic rights are regularly linked to minority ments of linguistic and normative settings. Thinking expansion of the role of the courts (both national and the effect that the CJEU’s intervention has had, and questions in a state, which are usually politically highly after the “linguistic turn” conceived language as not international) have been arguably some of the most sig- to evaluate the direction that its judgments are taking charged, international courts form an important forum only a medium of interpretation and communication nificant developments in late-20th and early-21st cen- EU Citizenship in. It will also evaluate the effect that for adjudication. The panel includes presentations on but more fundamentally as structuring all perception tury government. Reflecting the scholarly consensus this has had upon the UK, by examining the interplay both aspects of language in international courts, and of the world. At the same time, adjudication of linguis- related to the judicialization of politics and expansion between the CJEU and the UK courts over issues of by bringing them together aims at discussing also the tic rights has treated language mostly with a fixation of courts’ powers the scholarship on Central Eastern free movement and citizenship, often discussed in relationship between the two. either on cultural aspects as group rights or as mere Europe has been more or less in agreement that this cases concerning derogations from free movement medium of conveying information. Especially cases double phenomenon characterised constitutional de- and eligibility of EU citizens to financial assistance. Participants Jacqueline Mowbray concerning communication rights of prisoners illus- velopments in CEE countries since 1989, at least until Whether the future for EU Citizenship is away from its Dana Schmalz trate the latter tendency. I am interested in discussing the advance of ‘illiberalism’ in countries like Hungary or current status as subservient to national citizenship Mathilde Cohen how further aspects of language and particularly of a more recently in Poland. In my paper I examine whether will also be considered along with whether the CJEU Moderator Dana Schmalz person’s mother tongue can be acknowledged in adju- the judicialization of politics and the expansion of the has an important role to play in this potential future Room 8B-4-49 dicating such cases. Moreover this allows questioning role of courts had any impact on matters that stirred development. how language rights schemes have been oriented at high passions in post-communist societies such as the established national minorities as opposed to newly processes of restitution or the privatisation of public Catalin Gabriel Stanescu: Removing public in- Jacqueline Mowbray: Linguistic nationalism forming immigrant populations. goods. Taking the case of Romania, where there was terest by judicial dicta? The clash between the and the practice of international courts a lack of political consensus in respect of restitution USSC’s stand on arbitration and the pro litigant This paper considers the relationship between lin- Mathilde Cohen: The Linguistic Design of Multi- policies that should be followed after the fall of com- stance of the Fiar Debt Collection Practices Act guistic nationalism and international law in the con- national Courts: The Case of French munism, I argue that the national courts’ decisions in text of the practice of international courts. It argues This talk discusses the importance of language in restitution cases could not restrain the national ad- that while international law claims to transcend the the institutional design of European and international ministration or the government in pursuing policies national offering a ‘universal’ regime within which to courts, which I refer to as “linguistic design.” What which infringed the rule of law and ultimately rendered address global issues, the rise of international law is at stake in the choice a court’s official or work- national courts powerless. When the issue of (Roma- and the emergence of supranational courts in fact ing language? Picking a language has far-reaching nian) restitution moved to the ECtHR the Strasbourg open up opportunities for linguistic nationalism, both consequences on a court’s composition and internal court’s decisions could do little to prevent the Roma- within and among states. The development of modern organizational culture, possibly going as far as influ- nian authorities to cease their continuous infringement international law as a constraint on the exercise of encing the substantive law produced. This is the case of the rule of law and of the European Convention on state power has opened up space for the claims of na- because language choices impact the screening of Human Rights. After a decade and a half of litigation, tional minorities within states, with dealings between the staff and the manufacture of judicial opinions. Us- the only thing that the ECtHR could do was to endorse states and these minority groups now understood as a ing the example of French at the Court of Justice of an uncertain Romanian restitution scheme that lacked legitimate subject of regulation by international law. In the European Union, the European Court of Human much legitimacy. While the ECtHR record in Romanian particular, the claims of linguistic minorities to use their Rights, and the International Court of Justice, I argue restitution cases could still be considered impressive own language have been the subject of numerous de- that granting French the status of official language the reduced effectiveness of both national and inter- cisions of international courts and tribunals, including has led French lawyers and French judicial culture to national courts in altering the course adopted by the particularly the European Court of Human Rights and disproportionately influence the courts’ inner workings. Romanian national administration in restitution matters the UN Human Rights Committee. At the same time, This is what I call the “French capture.” should make us to reconsider the role that the courts the language policy of international courts themselves could play in divided societies and devise additional becomes a site of contest between competing (state) mechanisms that further support the courts in healing nationalisms. By tracing the development of language political and social divisions. practices within international courts, I demonstrate

Concurring panels 122 Concurring panels 123 66 courts, Constitutional systems of constitutional judicial review by establish- these dynamics by reference to case studies of both Deferral & Second ing constitutional courts with exclusive jurisdiction over successful, and less successful, as usual Court tran- Constitutional “Transitions” judicial review. However, at the same time, in many sitions in South Africa, Hungary, Colombia, Indonesia, cases of divided societies, the same drafters left some and Israel, and suggest tentative lessons for both con- Comparative constitutional scholars in recent years foundational issues – that stood at the center of the stitutional drafters and judges from these experiences. have devoted increasing attention to the subject of constitutional debate – undecided, and intentionally constitutional transitions, i.e. the process of constitu- adopted incrementalist arrangements within the for- Sam Issacharoff: Constitutional Court Transi- tional transition from conflict to peace, authoritarian mal constitution (e.g. ambiguous language, deferral of tions (with Rosalind Dixon) to democratic rule, or colonial rule to self-government. controversial issues, conflicting provisions or nonju- Far less attention, however, has been given to what diciable sections). A good example for this dual trend might be called ‘second’ constitutional transitions – or is reflected in the new constitution of Tunisia (2014), the transfer of power from the founding constitutional which established a strong constitutional court yet generation to the next set of institutional actors. In left many ideational issues (for example concerning many countries, second transitions of this kind are the role of religion or women’s rights) ambivalent. The also exactly the moment at which constitutional or- paper addresses the puzzle of judicial review in divided ders are at greatest risk: the average endurance of societies from a comparative and political perspec- constitutions worldwide is now 19 years. Many con- tive. Drawing on the experience of countries such as stitutions thus simply do not survive the process of a India and Israel it argues that under conditions of deep second transition. This panel reflects on this problem division over the state’s basic norms and values courts and its implications for debates over constitutional face grave challenges and the risk of generating a design and decision-making, with particular attention harsh political backlash, which may weaken the court’s to problems of institutional transition in the US Senate, legitimacy as a political neutral defender of democratic in constitutional courts, and in divided societies. procedures. When courts attempt to address foun- dational issues left unresolved by the constitutional Participants Mark Graber drafters, their involvement may intensify rather than Hanna Lerner mitigate identity conflicts. Moreover, the paper argues Rosalind Dixon that the empowerment of courts in divided societ- Sam Issacharoff ies is impacted less by institutional design during the Moderator Vicki Jackson constitution-drafting stage than by political develop- Room 8B-4-52 ments outside the constitution and choices made by the court itself in the post-drafting stage.

Mark Graber: Charles Buckalew and the Origins Rosalind Dixon: Constitutional Court Transitions of the Stupid Senate Constitution-making is a process that takes place February 26, 1866 is the day the Senate became across many time-periods, and involves courts as well stupid. From the framing until the end of the Civil War, as legislatures. A key part of any successful process the Senate of the United States served clear consti- of constitution-making, therefore will be the creation tutional purposes. The Upper House of Congress pro- of a constitutional court whose power and legitimacy tected small states from logrolls by the larger states endures over time. This paper explores the particu- and promoted bisectional consensus on slavery poli- lar risk to courts in achieving this form of institutional cies. Republicans when redesigning constitutional in- endurance at moments of transition – i.e. in the transi- stitutions after the Civil War rejected every previous tion from the 1st to 2nd generation of judges on a new constitutional purpose that might have justified equal constitutional court – and what if anything can be done state representation in the Senate. Equal state repre- at the level of institutional design or judicial doctrine to sentation remained the law of the land partly because mitigate these risks. It notes, first, the importance to of inertia but also because that method of staffing one meaningful constitutional court endurance of norms of House of Congress served the partisan purpose of the staggered judicial retirement and appointment. Sec- Republican Party. This essay highlights how decisions ond, it suggests that courts own doctrinal approach of interest and principle are inevitably interwoven both may be even more important to the achievement of in the makings of constitutions and, when subsequent a smooth or successful transition: if a court begins generations seek significant constitutional reform. with a jurisprudence that is too active or robust, court may have nowhere to go in terms of incremental doc- Hanna Lerner: Interpreting Constitutions in Di- trinal development and thus inevitably engage in a vided Societies confrontation with the political branches for which they High hopes have been placed in recent years in the are ill-prepared. Similarly if a court adopts an overly ability of courts to promote the rule of law, strengthen personalised approach to its jurisprudence, or gives the democratic order, and mitigate identity conflicts priority to the authorial voice of certain judges, it may in divided societies. Such hopes have led drafters of undermine its ongoing institutional standing after the new constitutions in democratizing countries to adopt retirement of a particular judge. The paper illustrates

Concurring panels 124 Concurring panels 125 67 Po wer and its Consequences: itself in the design and operation of the ICJ, CJEU, thursday Panel Threats to the Authority and ECtHR, and the WTO’s Appellate Body. The proposed Independence of International framework enables us to conceptualize the limits of Courts and Arbitral Tribunals judicial independence, and to identify strategies to 6 july 2017 session enhance this independence. The increasing judicialization of international relations 11:00 – 12:30 3 has enhanced international courts and tribunals’ abil- Filippo Fontanelli: How to unring a bell – States’ ity to constrain public power. Less noticed, however, attempts to reset arbitral practice in invest- is states’ response to these expanded powers. This ment law panel extends an emerging literature on “backlash” Judging by States’ action in recent years, it seems by examining new threats to judicial authority. To do that investment arbitration has irreversibly escaped so, panelists analyze recent efforts by states to con- their control. There is a widespread trend towards a strain the powers of international courts and tribunals, ‘hard’ reset of the system of investment arbitration and the strategies judges and arbitrators use to main- through drastic measures. These vary in intensity: tain autonomy and independence. The papers thus withdrawal from ICSID or from investment treaties, examine various controversies between states and re-negotiation of treaties, abandonment of arbitration, courts and arbitrators over judicial role, authority and issuing of joint interpretation statements, establish- independence. Panel papers will explore (1) efforts to ment of appellate review and/or of a multilateral per- constrain the independence of international courts manent court. The reasons of this general recoil are through appointment practices, and the complex in- difficult to pinpoint, but a generic mistrust of tribunals teractions among judicial independence accountability, emerges starkly, which is not attenuated by the level of and transparency; (2) why states often choose arbitral detail reached by treaty provisions. Apparently, States fora rather than courts to hear controversial disputes simply stopped accepting to be subject to tribunals’ -- and the resulting backlash against arbitral tribunals jurisdiction. Their actions betray a misunderstanding when they rule on such cases; and (3) state attempts of what interpreting and applying international obliga- to constrain the authority of international investment tions entails. tribunals, in an effort to eliminate all margins of judicial law-making. The papers thus explore several recent and normatively troubling efforts at de-judicialization. Taylor St. John: No Exit Strategy? Explaining the Institutional Persistence of Investor-State Participants Jeffrey L. Dunoff and Arbitration Mark A. Pollack Dr. St. John, a Postdoctoral Fellow at PluriCourts Filippo Fontanelli who focuses on the history of the international invest- Taylor St. John ment arbitration system and on issues of institutional Moderator Jeffrey L. Dunoff design, will serve as discussant. Room 4B-2-22

Jeffrey L. Dunoff and Mark A. Pollack: Structural Constraints on Judicial and Arbitrator Indepen- dence: The inevitable tradeoffs among judicial independence accountability and transparency This paper uses recent controversies over reap- pointments at international tribunals to argue that the states that design, and the judges that serve on inter- national courts face an interlocking series of trade-offs among three core values: (i) judicial independence, the freedom of judges to decide cases on the facts and the law; (ii) judicial accountability, structural checks on ju- dicial authority found most prominently in international courts in reappointment and reelection processes; and (iii) judicial transparency, mechanisms that permit the identification of individual judicial positions (such as through individual opinions and dissents). Drawing on interviews with current and former judges at lead- ing international courts, we show that it is possible to maximize at most two of these three values. The paper unpacks the logic driving this Trilemma, and traces the varied ways in which this logic manifests

Concurring panels 126 Concurring panels 127 68 culTURAL HERITAGE BEFORE undermine Fashion design’s current presentation and 69 The CJEU as a Fundamental discrimination developed in EU Law scholarship. This THE COURTS appreciation as cultural heritage in American muse- Rights Court: New paper presents a critique of the Parris decision which ums; it contrasts the nuanced effect of U.S. copyright Perspectives in Light of falls by the wayside of the trend to redress intersec- Courts can exert power over cultural heritage in a law on the definition of cultural heritage with the direct Recent Case Law tionality. The CJEU’s reasoning in Parris appears faulty number of ways: judges may decide a case that deals effect Italian cultural heritage law and the judgments at both the normative as well as the doctrinal level. At directly with cultural property, their judgments may of Italian administrative courts have on the definition This Panel explores the transformative potential of the normative level, the Court fails to appreciate pat- indirectly influence culture heritage and the percep- of cultural heritage. the CJEU in enforcing fundamental rights guaranteed terns of discrimination created by the combination of tion of it, or judges may deliberately reason in such a under EU law. The Court’s recent jurisprudence in at grounds by steadfastly focusing on a single ground at way as to avoid making any judgment that would at Anna Pirri: Artworks under ‘Indictment’ least three areas – discrimination, Charter rights and a time. This feeds into its doctrinal analysis which fails all affect cultural heritage. This interdisciplinary panel This paper aims to deepen the relations existing the rights of asylum seekers and refugees – highlights in appreciating at least three things: (i) the complex presents specific examples of these three scenarios, between contemporary art and law through a close the possibilities in developing the Court as a funda- nature of the claim as based on one ground directly spotlighting how courts have historically and still cur- look at some selected court decisions that deal with mental rights court. The Panel surveys this trend and (age) but causing indirect discrimination based on rently reframe the public’s relationship with cultural artworks. These cases are an example of the possible lays down the groundwork for fully exploiting this po- two grounds (age and sexual orientation); (ii) the strict heritage, and the roles of State non-state, and indi- dichotomy between what is considered art by courts tential. Atrey examines the CJEU’s failed opportunity or narrow application of exceptions or justifications vidual private actors active in the cultural heritage and what is generally considered art by the art system to address intersectionality in a case explicitly argued in a way that does not override the right to equality field. Indeed, when judges and their courts are faced and the art market. The paper aims to express the on two grounds of discrimination – Parris v TCD. Her and non-discrimination per se; and (iii) the importance with a legal issue that involves cultural heritage, the challenges represented by contemporary art for the le- critique hopes to revive the promise in the Court’s of carrying out proportionality analysis in claims of judgments they render inevitably attempt to substitute gal regimes of customs law copyright and moral rights. preliminary ruling mechanism for addressing complex intersectional discrimination. The paper thus offers the voice of the court for the voice of society at large, and structural inequality through EU law. Rauchegger a normative and doctrinal framework for the CJEU to other governmental agencies, and private stakehold- Elena Pontelli: The Denial of Exportation Certifi- examines the role of the CJEU in enforcing Charter ob- address inequalities that matter; with the purpose of ers. While the courtroom is often conceived as the cates in Italy and its judicial review: an ancient ligations. She surveys comparative law to understand developing the Court’s preliminary ruling mechanism proper place for justice to be rendered, it may or may story the framework conditions within which the CJEU has as a way of advancing substantive equality in Europe. not be the proper place for a public discourse about Parliamentary discussions of the first republi- sought to enforce national fundamental rights within cultural heritage: this interdisciplinary panel aims to can Italian Parliament, upon the approval of the draft the scope of the Charter. Tsourdi’s paper explores Lilian Tsourdi: The role of collective actors in the fully consider the powerful mediating role that courts U71law “Modifiche dell’attuale disciplina delle mostre the relationship between collective actors and courts enforcement of asylum seekers and refugees’ play in shaping and defining cultural heritage and the d’arte” (N. 561/1950), reveal common traits with the in the enforcement of rights of asylum seekers and rights under EU law repercussions of that mediation. debate fueled in those years by art historians and ar- refugees. In light of the Common European Asylum Lacking both an international judicial instance, and chaeologists on the increasing numbers of exhibitions System (CEAS), she studies the obligations imposed a global level monitoring mechanism with a possibility Participants Daria Brasca involving the movement abroad of parts of national ar- by EU law on collective agents such as the UNHCR. to deliver opinions in individual cases, international ref- Felicia Caponigri tistic heritage. Over the decades, courts have become ugee law is particularly challenging to enforce. The cre- Anna Pirri a meeting point for archaeology and law, reflecting Participants Shreya Atrey ation of a Common European Asylum System (CEAS) Elena Pontelli the debate between these two worlds. This paper will Lilian Tsourdi carried within it the potential for the CJEU to shape EU Lorenzo Casini analyze the legal reasoning given by courts in their Clara Rauchegger asylum, and by extension international refugee law, as Moderator Sabino Cassese and judgments in cases where the denial of an exportation Moderator Bruno de Witte well as to enforce asylum seekers and refugees’ rights. Lorenzo Casini certificate was appealed in order to show the close Room 4B-2-58 Strict procedural rules on direct access somewhat Room 4B-2-34 relationship (whether in agreement or not) between circumscribe CJEU’s potential to become an ‘asylum the legal reasoning and the dominant cultural theories Court’. Nevertheless, provisions in the various legal in archaeology and art history. Shreya Atrey: Facing the challenge: cjeu’s turn instruments comprising the EU asylum acquis influ- Daria Brasca: The Denial of Holocaust Looted to redress intersectionality ence the conditions for asylum seekers and refugees Art in the Italian courts: Just a Justice Matter? Lorenzo Casini: The Future of Cultural Heritage The Court of Justice of the European Union de- to gain access to national courts. One of the main ad- Despite Italy’s acceptance of international declara- Law cided its first ever discrimination claim argued explic- vances of CEAS in relation to the international refugee tions over the last decades, Italian courts have reject- Cultural heritage sway between international and itly on two grounds – sexual orientation and age – on law regime is that it seeks to harmonise in a detailed ed any request for restitution of Holocaust Looted Art. national legal dimensions, and between universal and 24 November 2016. It found that no discrimination manner rules around asylum procedures at national The recent “forced” return of a Gerolamo Romanino outstanding values: one property may be simultane- could exist on two grounds combined together where level, including provisions on the right to an effective masterpiece conserved in a National Museum to the ously outstanding – and extremely relevant to a given no discrimination existed on the grounds considered remedy and related guarantees. In addition, refugee- heirs of an Italian Jew persecuted in France during single nation and its community – and universal – and separately. With this, the Court rejected the first pos- assisting organisations, at national and EU level, as World II is the result of a ten years long litigation. This significant to all mankind, assuming that culture can- sibility of recognising discrimination based on two well as the Office of the UN High Commissioner for paper explores how the courts’ inability to evaluate not be restrained within one single country and / or grounds and thus the relevance of the theory of in- Refugees (UNHCR), are increasingly engaging in stra- the cultural implications of certain Holocaust Looted community. International regulation of cultural heritage tersectionality in EU discrimination law. The claim in tegic litigation in the field of asylum. Set against this Art cases before them reflects a “cultural amnesia” sheds light on the multifarious relationships between Parris v Trinity College Dublin thus failed. The failure backdrop, the paper examines the role of collective present in the Italian collective memory. different levels of interests and actors in this field: in Parris signifies the lost opportunity for the Court to actors, understood in the broad sense to cover civil global, national, local, public, but also non-governmen- recognise complex and structural inequality under EU society organisations and independent organisations Felicia Caponigri: Imagination Preservation and tal. How can international law effectively deal with such law. The Court’s reasoning appears in sharp contrast as well as that of UNHCR, in judicially enforcing the Practicality in U.S. Courts: Fashion as cultural interests? What are the patterns and dimensions of the with over a decade of work on intersectionality in EU rights of asylum seekers and refugees. The research heritage? international regulation of cultural heritage? What are discrimination law. Instead of judicially backing the scrutinizes selected provisions of the EU asylum in- In Varsity v. Star Athletica, the U.S. Supreme Court their limits and opportunities? While addressing these development of discrimination law beyond its limited struments to ascertain what functions they foresee for considers whether certain Fashion design is copy- questions, the paper shows that cultural heritage law single-axis model and exploit the transformative po- collective actors and for UNHCR within CEAS. It then rightable subject matter under U.S. law. This paper can significantly help develop the existing legal tools tential of the EU equality Directives, the Court gives a critically assesses if, and how, these functions relate to explores whether the Court’s decision will support or of global governance. short shrift to the trenchant accounts of intersectional their capacity to judicially enforce asylum seekers and

Concurring panels 128 Concurring panels 129 refugees’ rights. The study then draws examples from the co-application of EU and national fundamental 70 judICIAL DESIGN IN FEDERAL in different ways, the court has drawn constitutional CJEU case-law on asylum involving collective actors, rights with that of domestic constitutional courts. The SYSTEMS implications to address the challenge of maintaining examining the nature of the organisations in question, Italian Constitutional Court, for instance, has recently integrity within state judicial systems and processes. the type of their involvement, and their influence on the articulated its view on this matter in its preliminary As an organizing principle for government, federal- outcome of the case. It comments on the intervention reference in the Taricco case. ism embraces regional autonomy, diversity, innova- Gerry Baier: Canadian Judicial Federalism: strategies of UNHCR, including its practice to issue tion and competition while also promoting shared Quasi-Federalism Realized statements in the context of preliminarily ruling refer- commitments to common values including, for ex- Canada’s system of judicial federalism was con- ences. Apart from secondary sources, the research ample, commitments to the rule of law and individual sciously designed to impose national uniformity on integrates empirical findings from a limited number of liberty. Judicial federalism – the way in which judicial the federation. Major areas of private law are distinct qualitative semi-structured interviews. On this basis, systems are structured within a federation – raises to individual provinces, with Quebec and its use of a the paper sheds light on the hidden processes behind pointed questions about how to reconcile these civil code the most distinct among the provinces. This asylum litigation and the-often- ignored influence of foundational principles of federalism. Where a sys- is not a surprising trait for a federation. Moreover, a collective actors. It also critically reflects on the suit- tem of sub-national courts is maintained within a federalized judiciary oversees the enforcement and in- ability of the existing legal framework to accommodate federal judicial structure, a tension arises between terpretation of those laws. There are distinct provincial an increasingly complex administrative environment national rule of law commitments to judicial integrity and federal court systems with differing jurisdictions. that includes joint forms of processing and potentially (including judicial independence and fair and con- However, the federal government appoints the most in the future extra-territorial processing. sistent judicial processes) and sub-national diversity. senior justices of the provincial systems as well as the To characterize and evaluate judicial federalism re- Supreme Court of Canada, a court which has plenary Clara Rauchegger: The CJEU and National Con- quires an understanding of how an individual system jurisdiction over all provincial and federal laws. The stitutional Rights balances these (and other) sometimes competing appointment of a significant portion of the judiciary The EU Charter of Fundamental Rights, which values. This panel will review system-design in the by the federal government demonstrated the distrust acquired binding force in 2009, was not meant to United States, and Australia, Canada, Germany, Ma- that Canada’s founders had for local particularisms replace, but to complement the fundamental rights laysia, and Brazil. as well as their desire for centralization of power and of the Member States. In the seminal Melloni and Ak- standards at the national level. Legal particularities erberg Fransson cases of February 2013, the Court of Participants Gabrielle Appleby and among the former colonies were a sticking point of Justice of the EU clarified that national fundamental Erin Delaney the Confederation project, so the ability to pull off rights can be applied in parallel with the EU Charter Gerry Baier this particular bit of uniformity was uncharacteristic of Fundamental Rights if three conditions are fulfilled. Thomas John of other compromises that are features of the legal First, the provision of EU law which triggers the ap- HP Lee and landscape in Canada’s federation. That said, Canada’s plicability of the Charter has to leave a degree of im- Richard Foo judicial federalism is among the more unifying features plementing discretion to national authorities, second, Angela Oliveira of a very decentralized federation though probably the minimum level of protection of the Charter has to Catalina Smulovitz underappreciated as such. Setting Canada’s judicial be respected and third the “supremacy unity and ef- Moderator Vicki Jackson federalism into comparative context will give a greater fectiveness” of EU law cannot be compromised. The Room 7C-2-24 appreciation of the capacity for integration and par- proposed conference paper sheds light on the actual ticularity that is possible in a federal judicial system. meaning of these three conditions. It examines the abundant Charter case law of the CJEU of the past Gabrielle Appleby and Erin Delaney: Integrity in Thomas John: Assessing Germany’s integrated four years in order to determine how much leeway Diversity: Comparing Rights and Structure in hierarchical judicial system the court actually leaves for the application of national Judicial Federalism The German judicial system was conceived in the fundamental rights within the scope of the Charter. The United States and Australia each initially de- late 1940s, with the abuses of judicial power as com- After having explored the first condition the distinc- signed its judicial federalism with an understand- mitted by the judiciary in the Third Reich clearly on the tion drawn by the CJEU between complete and partial ing that state courts would perform a role in the new mind of the drafters of the German Grundgesetz. As a determination by EU law, the paper aims to understand federal system. But each constitutional text was si- result, the Grundgesetz allocates the competencies of to what extent the applicability of domestic constitu- lent as to how judicial integrity of state courts would the Landes- and Bundes-courts to create one integrat- tional rights is restricted by the second condition, the be assured. In the United States, a partial solution ed, hierarchically structured, judicial system. This ap- respect of the Charter as a minimum standard of pro- developed through the strengthening of concurrent proach was thought to balance a number of competing tection. Three different standards of review employed jurisdiction in federal courts, thus providing litigants interests. It aimed to strengthen the German Länder, by the CJEU under the Charter and therefore three with an alternative forum in which to resolve federal and to delineate, and thus limit, the federal powers of degrees of deference to national fundamental rights claims. In addition, through its incorporation doc- the Bund. It also stood in contrast to established judi- are identified. In the first group of cases, the ECJ fully trine, the Supreme Court created rights protections cial systems that are, like the Australian or that of the defers the fundamental rights review to the national for individuals litigating state claims in state courts. United States, based on separated, at times perhaps court, in the second group, it opts for a light-touch Conversely, the Australian High Court has drawn on even competing, state and federal judicial systems, review, and in the third, for full substantive review under the Constitution’s express inclusion of state courts with a view to avoiding any or most Kompetenzgeran- the Charter. Regarding the third condition for the ap- in the federal judicial system to develop a structural gel among the Landes- and Bundes-courts. And it plication of national fundamental rights in parallel to solution to monitoring state judicial integrity. Extrapo- was thought that integration would ensure an efficient the Charter, the respect of the “supremacy unity and lating from the protections of judicial independence judicial system that can best deliver non-fragmented effectiveness” of EU law, the analysis of the case law that apply to federal courts, the High Court has im- nation-wide legal system that still maintains a level of shows that it has no practical significance. The final plied similar guarantees of judicial independence regional autonomy and (thus) diversity. The paper will part of the paper confronts the CJEU’s approach to and integrity at the state level. In each system, albeit analyse the complex web of constitutional and legisla-

Concurring panels 130 Concurring panels 131 tive norms designed to create the integrated hierarchi- federalism in Brazil, and how the Supreme Federal 71 The Public’s Different Faces Ida Koivisto: Expert power and constitutionality cal judicial system and to allocate the competencies Court has struggled to reconcile its previous tradi- control between Landes- and Bundes-courts. It will then criti- tion of mandatory appellate jurisdiction and its newly- The public appears in different forms in discussions The presentation discusses the constitutionality cally assess whether the approach reached what it set granted discretionary power to turn down cases. It of the relationship between courts, elected institu- control in Finland and the institution of consulting out to achieve. The starting point for the analysis and argues that empowering state courts, as well as lower tions and public debate. Sometimes it appears as a legal experts therein. Judging from recent public de- critical assessment will be the Grundgesetz. Where federal courts, by narrowing the current standards of deliberative entity; in other occasions it is presented bate there are signs of decreasing legitimacy of this necessary, the de facto impact of supranational and admissibility of appeals at the Supreme Federal Court as offering a decisive voice; some put emphasis on system. Why is this happening right now? The theme international courts, which are de jure not part of the level, is pivotal to address the lengthy delays in the populist tendencies while others speak of the “en- is approached from three different angles: those of German judicial system, will also be considered. final disposition of cases in the Brazilian court system. lightened” public. In this panel we aim to explore dif- cognitive authority, the makeup of legal expertise and ferent faces of the public as they come into play in a political implications of it. It is argued that while the HP Lee and Richard Foo: The Judicial System in Catalina Smulovitz: Who pays for rights in the variety of public law arenas, both in the domestic are- nature of legal expertise or its use in constitutionality the Malaysian Federation Argentine provinces? The case of domestic vio- na and in the international arena. Independent judicial control has not really changed, the way they are per- The contemporary Malaysian federation first came lence laws systems on national, transnational and international ceived has; in other words, it is a question of the public into being in 1957as the Federation of Malaya compris- Protection of rights is not free. To ensure their levels are source of public deliberative processes in and changes in its receptivity. Apart from questioning ing nine states with hereditary rulers (or Sultans) and implementation states must allocate resources to various forms. Shai Dothan discusses the public as the legitimacy of the current system of constitutional- two Straits Settlements. It was subsequently enlarged finance a bureaucratic apparatus to enforce them. a discursive partner for international courts. A con- ity control, there may be weak signals of new societal in 1963 as Malaysia by the addition of the Crown colony States need financial support to fund a judiciary with trasting picture is presented by Ida Koivisto’s paper acceptability of anti-intellectualism. of Singapore and Sabah (formerly North Borneo) and qualified staff, agencies throughout the territory, polic- in which she provides an account of a constitutional Sarawak. In 1965 Singapore was ejected from the fed- ing capabilities and support services such as shelters, debate in Finland, where the public has developed Or Bassok: The Supreme Court of the United eration. In crafting the constitution for an independent hospitals, schools and prisons. To state that the pro- an ‘anti-intellectualism’ suspicion directed against Kingdom: How More Independence from Politi- polity in 1957 the main focus was on ethnic issues tection of rights has economic costs is neither con- the involvement of experts in the constitutional dis- cal Institutions may Entail Less Independence rather than a struggle for powers between the states troversial nor original assertion (Holmes and Sunstein, course. Or Bassok argues that the establishment of from Politics and a new central polity. The judicial system which 2000). Nonetheless, empirical research about the pro- the Supreme Court of the UK in 2005 gave the public The establishment of the Supreme Court of the operated in the federation is highly centralised and is tection of rights tends to overlook this dimension of the a new and central role in assessing the Court’s legiti- United Kingdom under the Constitutional Reform Act largely because of the historical colonial factor. Never- problem. To amend this deficiency, this paper analyzes macy. Finally, Dmitri Kursonov explores the complex 2005, that removed the Law Lords from the Westmin- theless one aspect which influenced the nature of the how Argentine provincial states allocate and spend re- relationship between public discourse, media, and ster Parliament, has been commonly understood as a judicial system is the functioning of a parallel system of sources to ensure the protection and implementation judicial decisions. move towards creating a greater separation between Syariah courts. Islam is the sole domain of the states. of rights promised by 35 provincial laws sanctioned law and politics. I my paper, I argue that examining the Judicial politics have engendered controversies over between 1992 and 2009 regarding domestic violence. Participants Shai Dothan change from the perspective of the Court’s source of a number of fundamental issues which challenge the In particular the paper identifies and calculates a) the Ida Koivisto legitimacy reveals that the end result may be opposite notion that the constitution was intended to provide magnitude of the economic resources provinces allo- Or Bassok to the one intended. The new institutional design has for a secular nation with Islam expressly declared to cate to ensure the rights they promised to protect and Dmitry Kurnosov the potential of shifting the focus of the Court’s source be the religion of the federation in terms of its role for b) analyzes the factors determining how districts make Moderator Achilles Skordas of legitimacy from expertise to public support. Thus, ceremonial purposes. A constitutional amendment in those allocations. The article argues first, that the het- Room 7C-2-14 the divide between law and politics may erode due 1988 has led to a number of fundamental issues relat- erogeneity in the allocation of economic resources to the change. Recent developments in the Court’s ing to central/state division of legislative powers and is related to the specific institutional design of each jurisprudence indeed show that this erosion has al- the jurisdictional boundaries between the civil courts federal setting rather than to the impact of federalism Shai Dothan: International Courts Improve Pub- ready begun. and the Syariah courts. In one of the states there exists tout court. Specifically it argues that likelihood and lic Deliberation a sub-national tier of courts the Native Courts of Sar- intensity of the legal and economic heterogeneity de- Public deliberation is essential for democracy to Dmitry Kurnosov: Courts as facilitators of dem- awak. This paper will provide the Malaysian perspec- pends on the combination of legislative competences flourish. Taking decisions away from elected bodies ocratic deliberation tive on some aspects of the judicial system and the and authority between levels of government. These and transferring them to courts seems to diminish Deliberation is often considered one of the key controversies engendered in the Malaysian federation. institutional scenarios determine, in turn, whether local deliberation. The damage seems even greater when features of democratic process. The underlying theory social and political actors are able to operate and to decisions are taken away from domestic bodies and is that the informed public would be in the position to Angela Oliveira: Judicial Federalism in Brazil: influence outcomes at the subnational level. In par- given to international courts – organizations which make a better judgment. Numerous studies have been Constitutional Structure and the Supremacy of ticular the paper shows that the institutional design seem completely independent from the public. But conducted, regarding deliberation at both micro- and National Uniformity of the Argentine federalism – which allocates ample this view is mistaken. It stems from perceiving courts macro-level. Ultimately, though, elections form the A devolutionary federal state, Brazil organizes its legislative capacities to subnational districts – enables as saying the last word on the issues on their agenda. key part of democratic process. In electoral context, judiciary as a national power, prescribing general rules the working of provincial factors such as the level of International courts are in fact engaging in a dialogue deliberation can be approached in markedly different for both federal and state courts to ensure judicial competitive threats and the strength of local women’s with the public, with governments, and with an elite of ways. While some would argue that ‘marketplace of independence from an institutional perspective, as organizations, which determine differences in the way professional lawyers. International courts can spark ideas’ (even if money is considered ‘speech’) would well as from an individual judge’s viewpoint. Federal economic resources to implement the domestic vio- a debate instead of silencing it. This paper explains ultimately produce more informed opinions, others legislation in Brazil also regulates several subject mat- lence laws sanctioned by the provinces are allocated. how international courts shape public discourse by contend that such a result can be achieved only if de- ters usually considered within the realm of state law in supplying legal arguments to the public and by build- bate is freed from unwanted influences. In the current other countries, such as criminal, civil and procedural ing networks of activists, how these courts interact media environment, where facts are challenged by law. At the same time, the Federal Constitution has only with governments, and how they form an international ‘alternative facts’, such a juncture becomes crucial. In recently granted the Supreme Federal Court discre- community of lawyers. Considering all this, the paper my paper, I try to explore the role of the courts as fa- tion to decide which appeals it will hear (Constitutional concludes that international courts improve public cilitators of democratic deliberation in the light of new Amendment 45 of 2004). Considering these key fea- deliberation. developments in the media. Principal among them are tures, this paper discusses the structure of judicial the concentration of traditional media in single hands,

Concurring panels 132 Concurring panels 133 the explosion of social media with all the associated 72 rAdical democracy and Melina Girardi Fachin: Human Rights against 73 judicial control over state phenomena. My paper will concentrate on jurisdictions constitutionalism or political democracy: Is that possible? emergency regimes within the ambit of the European Convention on Hu- action and judicial action: In times of intensification of intolerance of rights- man Rights, both international and domestic. how far can one go? restricting policies, and especially in the face of a re- Drawing on case-studies from various jurisdictions, pressive and conflicting international political land- panel papers will outline the way in which state of emer- The constitution faces from its very beginning a para- scape, the “triumph” of the hegemonic discourse of gencies have challenged traditional views on the issue doxical relation between itself and that which consti- human rights emerges, on the one hand, and, on the of judicial control over national security activities. In tutes it and there is no big news. Yet the difficulty to other, its evident contemporary bankruptcy shaped by France, the control exercised by Constitutional judges deal with it still remains for political and constitutional the apathy to the deaths and sufferings of others, aris- (Conseil Constitutionnel) on the amended law on the scholars. The idea of a radical constitutional takes this es. Why have human rights become an empty, abstract state of emergency’s raises questions about the ef- paradox as foundational. Another way of looking at and distant discourse of real human needs? The pres- ficiency of such a control in the context of the Consti- this foundational paradox between constituent power ent context analysis demonstrates the insufficiency tutional Priority Question or “question préjudicielle de sovereignty and the constitution is focusing on the of the prevailing discourse to fulfill the emancipatory constitutionnalité” (Francesco Natoli). More broadly, it is relation between democracy and constitutionalism aims, thus revealing a process inversion of rights that relevant to question jurisdictional strategies restraining which poses the same difficulties in terms of not hav- bases the obliteration of the Other. This contradic- or strengthening judicial control over the state of emer- ing a “secure” ground for their accommodation. Pro- tion went even further, since in the name and in the gency and their impact on civil liberties (Balthazar Du- gressive constitutionalism and radical political theory, defense of the rule of law these rights departed from rand). In the context of the French state of emergency particularly radical democrac, are different, internally the very essence of democracy. The challenge, there- for example, exceptional measures restraining liberties variegated but share some points of view, such as a fore, is to focus a critical theory of rights, committed are mostly based on documents that are not readily critical attitude towards liberal democracy and, para- with substantial democracy and capable of conferring available to the litigants (Nicolas Klausser). The UK and doxically, a commitment to certain elements of the concreteness to human rights especially in the Latin the US courts have been led to leave Intelligence Agen- liberal tradition. Radical democracy favors participa- American context. cies a very broad margin of appreciation which has led tion and enhanced opportunities for popular control to an unprecedented rise of the executive power at over the limitations of parliamentary democracy. It is Maria Francisca Miranda Coutinho: Political the expenses of the judiciary (Jean-Philippe Foegle). attentive to the inequalities that undermine people’s representation as a dialectical process and an Finally the last paper will draw a comparison with the capacities to access liberal rights yet it depends on lib- ethical relation experience of the UK (Jessica Blackbourn). eral principles. The purpose of this panel is to discuss Political representation as a dialectical process to what extent constitutionalism and radical democ- and an ethical relation. Nowadays, the legitimacy of Participants Francesco Natoli racy can join an agenda for political and judicial action. political representation is in crisis in Brazil, especially Balthazar Durand on account of the fortification of the civil society’s role Nicolas Klausser Participants Vera Karam de Chueiri as a key political actor (through increasing social me- Jean-Philippe Foegle Melina Girardi Fachin dia articulation, broadening of public political debate Jessie Blackbourn Maria Francisca Miranda Coutinho in private spheres and strengthening of the Constitu- Moderator Stéphanie Hennette-Vauchez Moderator Vera Karam de Chueiri tion’s role after the process of redemocratization post Room 7C-2-02 Room 7C-2-12 1988) and the increasing discredit in the ability of rulers to act according to public interest and to consider the heterogeneity of perspectives involved. However, in a Francesco Natoli: The Constitutional priority Vera Karam de Chueiri: Radical constitution, complex society like the Brazilian one, the complete question and the impact of judicial review dur- progressive constitutionalism and radical de- overcoming of the category of representation can not ing the state of emergency mocracy: a theoretical and practical effort be sustained. The present article intends to approach From a legal standpoint, the concept of emergency Progressive constitutionalism can be associated the impossibility of the representation to be thought by refers to a situation characterized by an immediate either with judicial or political action. Some progres- the philosophical principle of the identity, like a closed risk of damage towards personal safety, environment sive constitutional scholars deny the first kind of as- totality and zero sum. It also maintains that legitimacy or goods. Therefore, exceptional measures are imple- sociation. Yet, for the purpose of this paper, political shouldn’t be attached to the act of authorization. On mented by providing public authorities with deroga- action and judicial action are very much related in the the contrary, it is suggested that representation should tory powers. The rise of executive prerogatives at the idea of a radical constitution. Regardless the signifi- be thought as an ethical relation marked by the in- expense of ordinary procedures is justified in those cant internal differences among progressive constitu- superability of radical difference and as a dialectical cases by the necessity for institutions to quickly act on tionalism there is sufficient common ground such as process in permanent production and reconstruction a public threat. However, even though the efficiency of the benefit of reason over power by means of dialogue delimited by the logic of the non-whole. Legitimacy, such an intervention is closely related to the ability of and deliberation, according to normatively grounded then, would be in the process itself. This reinforces government or local authorities to react in a promptly procedures and principles.The idea of a radical consti- the need to think of effective instruments of popular way, the over-invocation of emergency can affect the tution is an effort to build a more critical and politically participation in the processes of determining agen- balance of power by granting permanent and unjusti- committed notion of the Constitution on which radical das, deliberation and decision-making, as well as to fied discretional powers to the executive. As a con- political action can be grounded and by which it can consider the importance and materialization of ac- sequence, the constitutionality of those measures be mediated. This mediation associates social power countability and responsiveness. Finally, it highlights represents an actual debate in modern democracies. (contestation), political and legal institutions (legisla- the importance and strength of what remains and re- In France, the constitutionality of the Parliament Act of tive houses, courts etc.) so that people’s claims for sist not represented, as a negativity that pushes and the 3rd of April, 1955, which provides a legal basis for rights, as well as their enforcement, entail a permanent enables the permanent resignification of the process the state of emergency regime, has been found to be movement from outside to inside and vice-e-versa. of representation. consistent with constitutional law by the Constitutional

Concurring panels 134 Concurring panels 135 council in its decision of the 25th of January, 1985. culiarity of this regime lies in the fact that Home office’s on a growing number of activities in social and politi- 74 legislative supremacy: On that occasion, the Court stated that the compe- administrations have been granted increasing discre- cal life without being paralleled by the development of Contemporary debates tence of conciliating the safeguard of civil liberties with tionary powers as well as an amplification of legal tools more means of controlling those activities. Lastly, we public order exclusively belongs to Parliament. After at their disposal, in order to accurately address threats will assess the way in which the highly complex nature This panel will address normative arguments both for having implicitly declined its jurisdiction with regard to public order and security (called house arrests, order of the techniques of digital surveillance creates a bar- and against legislative supremacy in relation to rights to the constitutionality of exceptional measures, the of administrative search inadmissibility briefs, etc.). Due rier to the effective control over intelligence activities. and consider how these apply in contemporary de- constitutionality of this peculiar regime appeared to to civil liberties’ restrictions implied by such measures, Finally, the paper will assess how the implementation bates in various jurisdictions. While democratic legiti- be a widely accepted fact. However, the introduction administrative courts are confronted to an unusual task, of some best practices identified in international law macy and democratic equality are commonly invoked of a posterior constitutional control in 2007 and the that is, assessing the proportionality of such measures, (Cleared counsel, mandatory disclosure of classified as justifications for giving legislatures the “final word” recent modifications of state of emergency’s regime by striking a fair balance between the threat to public information, protection of whistleblowers...) could im- on social and political controversies concerning rights after the terrorist attacks of November 2015 have re- order posed by persons (potentials jihadists but also prove the efficiency of democratic control on intel- the democratic credentials of legislative politics are opened the debate. The paper’s purpose is to analyse environmental activists or demonstrators) on the one ligence activities reconsidered. Alternative justifications for legislative the efficiency of the Constitutional priority question as hand and civil liberties’ restrictions implicated by Home supremacy beyond democratic proceduralism are an instrument to counterbalance the power of public office decisions on the other one. The unusual nature Jessie Blackbourn: States of Emergenc,y Anti- addressed. Intermediary models mediating between authorities within the state of emergency. This study of this proportionality control is that the assessment Terrorism Laws, and the Power of the Courts: legislative and judicial power – particularly concepts will be based on empirical analysis of the most recent of a public order threat is almost solely based on In- The View from the United Kingdom of dialogue and collaboration – are critically evaluated. decisions of the Constitutional council in order to de- telligence agencies documents, namely the “notes Drawing on the themes raised in the first four pre- And crucially, the effects of legislative supremacy on termine the conditions and the extent of its scrutiny blanches” produced by the Home office before courts. sentations in this panel, this paper provides a view rights in specific jurisdictions are analysed. during formal times of crisis. Those “notes blanches” raise difficult questions in the from the United Kingdom. Parliaments in the UK have context of administrative procedures, for it make it dif- a long history of legislating against terrorism, dating Participants Eoin Daly Balthazar Durand: The decisions of administra- ficult, if not impossible, for both litigants and judges, to back to the partition of Ireland in 1921. Various counter- Colm O’Cinneide tive French courts under the state of emer- challenge and thus effectively exercise control over the terrorism strategies were employed to counter the Fergal Davis gency: what place for the strategic analysis of actual existence of a threat to the public order. Thus, threat of terrorism in Northern Ireland, including the Claire-Michelle Smyth judicial decision-making? the rise of Home office prerogatives significantly de- adoption of a state of public emergency and the en- Moderator Eoin Daly In France, the recent establishment of the state of mised the jurisdictional control and the defence’s rights. actment of laws that infringed upon the fair trial rights Room 8A-2-17 emergency affects the relations between state institu- Based on an empirical legal cases study, this paper of terrorist suspects, as well as their right to liberty tions both at international and internal level. The judicial proposed to analyse the administrative courts control and security. The UK’s response to terrorism in the review of the measures taken by the administration may on the “notes blanches” and to expose the implications twenty-first century did not reveal a significant degree Eoin Daly: Transparency as a justification for have appeared to be weakened: on the one hand by a of its relative efficiency for fundamental rights of ‘lesson-learning’; a new state of public emergency legislative supremacy request for a derogation addressed to the Council of was established after 9/11. This enabled the enactment While most arguments against rights-based ju- Europe, and on the other hand by the jurisdiction given Jean-Philippe Foegle: Reclaiming Executive’s of legislation that seriously infringed upon a number dicial review are grounded on a procedural account to the administrative courts known for their proximity to Accountability: National Security, Courts, and of rights, including through the use of secret material of democratic equality, others appeal not to the ab- the government. This kind of litigation mainly occured the Demise of the Balance of Powers in judicial proceedings and raised questions as to the stract qualities of legislative process but rather to the within the context of administrative urgent proceedings, In most jurisdictions, courts have been led to extent to which courts should show due deference to mystifying or non-transparent nature of judicial review which were introduced in the 2000s. Considering legal leave Intelligence Agencies a very broad margin of the executive in national security cases. The UK has itself. In this paper, I revisit what we understand by the discourses on this topic, one of the issues underlined appreciation in deciding what should be the appropri- thus already experienced a number of the same chal- non-transparent nature of constitutional jurisprudence, by the authors concerns the modification of the rela- ate operative responses to terrorist threats, very few lenges now faced by France in its efforts to counter ter- compared with legislative decisions concerning rights. tionship between judges and other institutions and judges having been eager to exercise thorough control rorism. This papers act first and foremost as a discus- Most commonly, critical and Marxist scholars under- between ordinary and administrative judges particularly on the operations of the Intelligence Community. Yet sion of the four preceding papers, however, by drawing stand judicial review as a mystifying practice in which with regard to the protection of rights and freedoms. since Intelligence agencies are under direct supervi- a comparison with the experience of the UK, it also contrived “legal” modes of reasoning obscure the real The study of the legal commentaries made on deci- sion of the Executive power in most countries, grant- serves to raise awareness of the convergences and grounds of decision. That is to say, judicial reasoning sions taken by administrative courts reveals different ing Intelligence communities such a broad margin divergences of approach taken by neighbouring states obscures interests that are extraneous or antecedent to conceptions of the interactions between organs and of appreciation has led to an unprecedented rise of to the threat of terrorism. The themes that emerge in law. However, relying on Pierre Bourdieu, I will argue that of their effects on legal decision-making. From this the executive power at the expenses of the judiciary this discussion highlight how different legal systems, while judicial review can be understood as a quintes- example, this paper aims at: a) Identifying the weight and the legislature. The paper will assess how the common and civil – cope with the challenges posed sentially esoteric and thus as a dominating practice, its given by legal academics to institutional factors in ex- decline of the court’s role in implementing Intelligence when national security is at stake. doctrinal artifice is nonetheless irreducible to interests plaining legal decisions, while noting the conception agencies accountability has led to a worrisome rise of that are antecedent to law itself. Rather, it generates of judicial activity it reveals (formalist realist or else); b) the executive in three jurisdiction: The United States, forms of symbolic and social capital that are peculiar to Suggesting some insights by stressing that judges may the United Kingdom, and France. In doing so, we will law as a semi-autonomous social “field”. Nonetheless, anticipate potential reactions from other institutions, bring to light three causes for such situation. First of non-transparency of this kind can be understood as an and adopt strategies in writing their decisions in order all, it will be shown that the lack of effective means of important kind of political domination that can support to maintain or modify their relations with them. controlling classified documents and condemn undue the argument for legislative supremacy. classification of information has led judges to only Nicolas Klausser: The control of state of emer- have a partial picture of intelligence activities and, thus, Colm O’Cinneide: Against Dialogue: Why the gency measures by administrative courts: An be unable to effectively control these activities. Using Dialogue Model Represents a Dead End in impossible effectiveness? Denis Galliga’s concept of discretionary power, it will Justifying Judicial Review of Legislation Since November 15, 2015, France lives under the then be assessed how the blurring of the very notion The dialogue model of judicial review, whereby state of emergency’s regime, due to its proclamation of National Security in legal discourses has laid the courts and the legislature are expected to engage in a by the French government after Paris’ attacks. The pe- foundations for allowing the executive to regain control responsive process of constitutional norm generation,

Concurring panels 136 Concurring panels 137 has been widely acclaimed as representing a solution Amendment (Foreign Fighters) Act 2014 (Cth) was one 75 constitutionalism and ticularly where they allow territory to be amended by to the perennial legitimacy issues associated with judi- of a suite of anti-terror laws adopted by the Australian constitutional change referendum. Third, they can allow for the cession of cial review of legislative acts. It has been embraced by government in recent years. It raised genuine human territory. At a broader level, the paper focuses our atten- academics and judges alike (see e.g. Lord Neuberger’s rights concerns. The paper will reveal a series of flaws This panel focuses on major themes central to con- tion on an understudied fundamental of constitutional opinion in the UK Supreme Court case of Nicklinson which impeded effective scrutiny during the enact- stitutionalism and constitutional change. What is the orders. In particular, it highlights how the democratic [2014] UKSC 38). It has also fuelled much of the enthu- ment of the legislation. The paper does not suggest relationship between a constitutional order and a choices of a polity are bounded by geographical space siasm in recent years for weak-form review and ‘third that the passage of the Foreign Fighter Act was typical. state’s territory? Democratic choices of a polity are as well as the way in which democratic choices can be way constitutionalism’ as embodied in measures such However, examining the structural flaws in the scrutiny somehow bound by geographical space. A territory made to alter that space. as the UK’s Human Rights Act 1998. However, like any process in this case will highlight potential problems is central to the constitutional order. And of course, other fashionable theory, dialogue has begun to gen- with the Parliamentary Scrutiny model more broadly. It there is a strong link between the people territory. But Zoran Oklopcic: Brexit demos dixit? erate a critical backlash. In particular, it has been ac- is a case study in the dangers of legislative supremacy. can the people – and which people – amend the ter- Over the last two and a half centuries, these bina- cused by commentators such as Rosalind Dixon and ritory? This dilemma also appears with regard to the ries – yardstick/allegory and top-down global/bottom- Eoin Carolan of inter alia (i) being inherently unstable, Claire-Michelle Smyth: Legislative Supremacy: Brexit, which presents a unique opportunity to reevalu- up/local – shaped our understandings of popular sov- on the basis that it tends to degenerate into either The Ultimate Death Knell for Social and Eco- ate our conceptions on popular sovereignty. How do ereignty. They did so subtly, and indirectly: by shaping judicial acquiescence or judicial dominance; (ii) favour- nomic Rights? we imagine the role of the people in constitutional our understandings of what kinds of questions we can ing particular modes of juridical-style discourse over The legal status of social and economic rights in change, and how do we imagine the people’s identity ask about it, and in which contexts. This essay is an alternative modes of political/normative articulation; national and international law is one that has been vis-á-vis major constitutional changes? Finally, must attempt to explore other possibilities. Instead of asking and (iii) glossing over the existence of serious value keenly debated for decades. While initial controversies we resort to formal constitutional amendments in order What (are the normative criteria for the legitimate exer- incommensurability in contemporary democratic so- centred on whether or not these could be classified to change the constitution, or we may resort to sub- cise of political power)? I will ask When and Where (in cieties. All these criticisms have bite. However, critics as rights, more contemporary considerations focus on constitutional quasi-constitutional amendments? The our imagination of popular sovereignty, are those crite- of dialogue have pulled their punches when it comes whether or not the courts or the legislature, or indeed panel will elaborate on these vexing questions. ria applicable)? Instead of asking Who is the people in to treating this defective model, generally advocating the executive are best place to vindicate social and a particular case, and whether a particular event may modest adjustments of its settings to favour either economic rights. The concept of legislative supremacy Participants Oran Doyle be understood as the manifestation of its will – I will stronger judicial protection of rights or greater de fact at its core relegates the role of the court to one that Zoran Oklopcic ask How do those who answer that question imagine legislative supremacy. The honourable exception is interprets and applies the legislation. This leaves no Richard Albert its identity and the scene in which that event occurs? Eoin Carolan, who has suggested that this model be room for the court to develop new rights or indeed to Michaela Hailbronner In the context of sovereignty referendums, this means ditched in favour of what he describes as the embrace expand existing ones as their efforts could be undone Moderator Yaniv Roznai not siding with one view or another, but exploring the of ‘collaborative constitutionalism’ – which he defines with an act of parliament. However, when it comes to Room 8A-2-27 question of When is the figure of a sovereign people as ‘accepting the distinct character of institutional social and economic rights there are further consid- at its most compelling in the context of such forms of processes denying the necessity for an accepted erations, the courts themselves tend to defer to the democratic decision-making? Finally, instead of asking consensus and providing a specific template against legislature. This paper examines why the exclusion Oran Doyle: Constitutional Amendment of a Whether a particular event – the outcome of a majority which institutional behaviour or proposed reforms can of these rights from justiciability is overwhelmingly State’s Territory vote – can be seen as the manifestation of the people’s be measured’ ((2016) 36(2) Legal Studies 209-229 harmful to their development. Firstly, it examines the Constitutions typically stipulate a process for their will, I will ask how can that majority be understood with- 229). This has potential. But it will only be realised if the reasons for legislative supremacy in this area being; own amendment. These processes are generally seen out a recourse to the image of a willing constitutional flaws of the dialogue model are squarely confronted competence, capability and democratic legitimacy. It as an important means to allow constitutions be updat- subject. While asking these new questions was always and the specific character, functioning and limits of the then argues that excluding an entire cache of rights ed so as to reflect the preferences of the contemporary possible, there are contexts where they appear more various institutional processes that make up current from the purview of the judiciary arguably breaches the generation. In this sense, constitutional amendment sensible than in others. This is why my argument pro- systems of democratic constitutional governance are separation of powers by creating a situation which it serves the value of democracy. But constitutions are not ceeds through a contextual exploration of the mean- acknowledged in full. This will mean clarifying the au- was designed to prevent. Further, this exclusion com- universal. They are the constitutions of and for a par- ings of peoplehood which have implicitly or explicitly thoritative role of judges in determining the content of pounds the view that these rights are inferior to their ticular people, having force in a particular geographic been relied upon in the contexts of the controversies legal norms, acknowledging both the presumptive pri- civil and political counterparts. This paper will argue space. Little attention has been paid to the way in which generated by Brexit: the outcome of the sovereignty ority and fundamental limits of legislative supremacy, that legislative supremacy, particularly in a neoliberal constitutional amendment processes can be utilised to referendum in the United Kingdom, whereby the win- and – perhaps shockingly to some ditching dialogue as system, would effectively end any prospect of mean- shift the democratic frame of reference for the constitu- ning majority supported the exit of Britain from the Eu- a model for reconciling judicial power with democratic ingful vindication for these rights. tional order. In this paper, I draw on a recently compiled ropean Union. Brexit is a unique opportunity to change will-formation. dataset of clauses in all national constitutions that relate the terms of the debate about popular sovereignty: to territory. I use this to explore different constitutional not only because a number of different questions that Fergal Davis: The Counter-Terrorism Legisla- attitudes to amendment of territory. These range from have haunted that debates separately have now ap- tion Amendment (Foreign Fighters) Act 2014 unamendability to special amendment processes to the peared together, but also because they occurred in (Cth): a case study of legislative supremacy specification of a simple parliamentary vote. In a related the context dominated by different terms of debate. Uniquely amongst democratic nations, Australia paper, I argue that the territory of a constitutional order Unlike elsewhere, the British doctrine of parliamentary does not have a judicially enforceable Bill of Rights is a function of a conventional ultimate rule of recogni- sovereignty precluded answering the Who? and What? or human rights instrument. This is, in part, due the tion. In other words, territory is not determined by the questions with recourse to the standard disciplinary Australian Constitution’s unusually strong commitment text of the constitution. If this is so, what purpose is and theoretical bannisters made intelligible within the to Parliamentary Supremacy. This makes it the ideal served by constitutional clauses that allow for amend- matrix organized by the two binaries. jurisdiction for testing the effectiveness of legislative ments to territory? I argue that such clauses can serve supremacy in securing human rights. Human human a number of different purposes. First, they can serve Richard Albert: Quasi-Constitutional Amendments rights protection in Australia relies on legislative scru- an expressive purpose, emphasising the centrality of The difficulty of formal amendment in constitu- tiny under the Human Rights (Parliamentary Scrutiny) territory to the constitutional order. Second, they can tional democracies has given rise to an increasingly Act 2011 (Cth). The Counter-Terrorism Legislation emphasise the link between territory and people par- common phenomenon: quasi-constitutional amend-

Concurring panels 138 Concurring panels 139 ments. These are sub-constitutional changes that do 76 courts, Constitutions & of state constitutions can be relatively easily amended, 77 lex Mercatoria Publica: not possess the same legal status as a constitutional Democratic Hedging but those that implicate fundamental provisions in the Private-Public Arbitration amendment, that are formally susceptible to statutory federal Constitution cannot be amended other than as Transnational Regulatory repeal or revision, but that may achieve constitutional Democracies around the world are facing new threats by recourse to Article V. The tiering of constitutional Governance status over time as a result of their subject matter. The from within: populist parties are on the rise globally, amendment procedures, the article further argues, impetus for a quasi-constitutional amendment is an and many have succeeded in passing major changes has clear advantages from a democratic perspec- Arbitrations between private economic actors and intent to circumvent onerous rules of formal amend- to existing constitutional arrangements. In other coun- tive: it balances democratic commitments to consti- public law bodies are on the rise, both under interna- ment in order to alter the operation of a set of existing tries, dominant political parties and actors are finding tutional flexibility and rigidity in ways that are superior tional investment treaties and public contracts. Yet, norms in the constitution. Where constitutional actors new ways to entrench their hold on power. There is also to approaches based on the averaging of costs and arbitral tribunals not only settle disputes, but also determine, correctly or not, that the current political an emerging subfield of comparative constitutional benefits to amendment or a ‘moderately’ difficult for- review the legality of government acts and incremen- landscape would frustrate their plans for a constitu- studies that addresses this phenomenon. This panel mal amendment rule. This balance is also increasingly tally develop the applicable law. Arbitrators thereby tional amendment to entrench new policy preferences, brings together leading contributors to this literature, important in a world in which, in many countries, formal become important law-makers that generate the law they resort instead to sub-constitutional means whose to reflect on how courts and constitutional law can amendment processes not only serve as a means governing public-private relations rather indepen- successful execution requires less or perhaps even respond to this phenomenon of abusive constitutional- by which democratic majorities may update consti- dently of specific domestic legal systems and their no cross-party or inter-institutional coordination. This ism or dominant party rule – or effectively engage in tutional language or override court decisions, but as democratic processes. This raises questions of legiti- strategy sometimes results in significant changes that processes of ‘democratic hedging’. a vehicle for distinctly antidemocratic constitutional macy and concerns for principles of constitutional law, have the functional effect though not the formal result change. The precise content and details of a tiered such as democracy, the rule of law, and the protection of a constitutional amendment. In this Chapter, I illus- Participants Sujit Choudhry approach to amendment will inevitably vary by country of fundamental rights. Concerns of a constitutional trate this phenomenon with reference to the Constitu- Tom Daly but may be guided by a range of general design prin- nature are all the more significant as arbitration pro- tion of Canada, though I stress at the outset that we David Landau ciples, including a commitment to: a mix of specific, ceedings in private-public disputes do not conform can observe this phenomenon elsewhere in the world. Rosalind Dixon rule-like provisions, and broader, more standard-like to safeguards that are usually in place in public law Moderator Sam Issacharoff democratic guarantees; a limited number of different adjudication in domestic courts. Settling private-public Michaela Hailbronner: Discussant Room 8B-2-03 tiers; the use of a range of different procedural mecha- disputes through arbitration may endanger how states nisms to protect higher tiers; sensitivity to the distribu- regulate in the public interest. The European Research tion of political power in a society; and the degree to Council-funded Lex Mercatoria Publica Project aims Sujit Choudhry: What can constitutional law which tiering is occurring ex ante or ex post. While the at developing a framework for addressing legitimacy learn from the past of democratic breakdown? success of a tiered approach depends a great deal concerns of private-public arbitration. The panel will on local legal and political conditions, the effective- present results from the first four years of research Tom Daly: Preventing ANC Capture of South ness of tiering can also be increased in many cases of this project. African Democracy: A Missed Opportunity for by careful attention to the relationship between formal Other “Constitutional Court”’? constitutional entrenchment and language, and to the Participants Stephan Schill When we think of constitutional courts and South relationship between amendment tiers and compara- Kerem Gulay Africa, we inevitably (and understandably) think of one tive democratic practices. The article makes these Flavia Foz Mange institution: the Constitutional Court in Johannesburg. arguments drawing on a range of case-studies from Moderator Stephan Schill and As regards dominant party democracy, the constitu- the US, Colombia, India, South Africa, Hungary, Ecua- Bertil Emrah Oder tional framework reposes considerable faith in the dor, Venezuela, and Nicaragua. Room 8B-2-09 Constitutional Court to act as a key bulwark against capture of the democratic process by the African Rosalind Dixon: Tiering Constitutional Amend- National Congress (ANC), and the Court has a mixed ment (with David Landau) Stephan Schill: The (Comparative) Constitu- record in this regard. Entirely missing from the narra- tional Law of Private-Public Arbitration and Its tive is the potential role of other ‘constitutional’ courts Legitimacy as a further firewall against capture; chiefly the African This paper analyzes the legitimacy challenges of Court on Human and Peoples’ Rights. This paper will arbitrating public-private disputes for constitutional discuss why, and how South Africa’s post-apartheid principles such as democracy, human rights and the constitutional system has made little space for the rule of law and develops a framework for conceptual- role of international courts as a ‘back-up’ constraint, izing legitimacy in a multi-jurisdictional system with and why this matters as we enter a new political con- little regulation under international law and few strin- text of declining ANC hegemony and the potential for gent control mechanisms under domestic law. The heightened ‘capture tactics’ this may bring. paper introduces the idea that absent a centralized way to control private-public arbitrations, a framework David Landau: Tiering Constitutional Amendment for legitimacy can be developed through comparative The US Constitution is famous for its demanding legal analysis of what constitutional principles, like requirements for formal constitutional amendment. democracy, human rights, and the rule of law mean Another equally important, if less noticed, feature of for ensuring that the public interest is not negatively Article V of the Constitution is the heightened protec- affected by settling private-public disputes through ar- tion it gives to the ‘Equal Suffrage’ provisions in Article I. bitrations and not in domestic courts. Rather than dis- When the Constitution is read together with state con- cussing in the abstract how constitutional ideals may stitutions, it is also clear that the US is home to another, impact private-public arbitration, the paper argues parallel form of constitutional ‘tiering’: most provisions that criteria to assess the legitimacy of private-public

Concurring panels 140 Concurring panels 141 arbitrations can be developed through comparative and their democratic processes. Do some national 78 mArgin of appreciation in the missibility of the presence of religious symbols includ- analysis of concrete constitutional regimes. To this laws play a more significant role in the formation of jurisprudence of the European ing religious attire in public sphere. The coexistence of end, it explores the conditions under which differ- “transnational law” than others? If so, does this pertain Court of Human Rights different understandings concerning the relationship ent domestic legal systems, as well as supranational to the selection of the seat of arbitration and/or the between Sate and religious confessions among Con- regional regimes, permit private-public arbitrations. lex arbitri, or does it extend to substantive standards With the signature of Protocol n.¬∫ 15 to the European tracting States and the lack of “uniform conceptions” Based on a multi-authored edited volume that is cur- as well? Ultimately, the paper is a thought experiment, Convention on Human Rights, the Contracting Par- and “European consensus” in the field, opens the path rently in the making, the paper covers domestic legal which, based on empirical data, tests the hypothesis ties have included in the text of the Convention the to recognize a domestic margin of appreciation, natu- systems from all continents, and all major models of that transnational arbitration is more than individual doctrine of the margin of appreciation, which has long rally submitted to ECHR supervision. By discussing constitutional and administrative law. It will show to dispute settlement and generates rules that structure been used by the Court in many of its decisions. This the specific use of margin of appreciation doctrine by which extent distiling common principles is feasible or public-private relations at a transnational scale. doctrine grants national authorities a margin of discre- the Court in cases concerning religious symbols, we whether, at least, different models can be outlined for tion in fulfilling their obligations under the Convention intend to highlight its main strengths and weaknesses showing how domestic constitutional law deals with Flavia Foz Mange: The Expanding Role of Ar- and or this reason, it can be said to mark the boundary in the protection of religious freedom in culturally di- private-public arbitration and how it ensures that the bitral Institutions in Private-Public Arbitration between the universality of human rights and the ir- verse societies and assess whether or not it is able public interest is not compromised by private-public and Their Legitimacy reducible State sovereignty. to perform as a legitimate instrument of “intercultural disputes moving from domestic courts to arbitral tri- When discussing the expanding role of internation- dialogue” in multilevel systems of protection. bunals. To this end, the paper will explore the legal al courts since 1990, the development of arbitration is Participants Catarina Santos Botelho basis and implications of constitutional law in several often overlooked. This is even more true as regards the Benedita Mac Crorie A. Sofia Pinto Oliveira: National security cases: jurisdictions in respect of the involvement of public ac- role of arbitral institutions in private-public arbitration. Anabela Costa Leão a wide margin of appreciation justified? tors in settling disputes with private actors through ar- The main reason for this is that arbitral institutions A. Sofia Pinto Oliveira The emphasis given to national security interests, bitration, rather than in permanent courts. It assesses regularly market themselves as ‘soft’ service providers Moderator Luísa Neto as compelling reasons to restrict individual freedoms whether under which circumstances and subject to for, and hence peripheral actors in, the resolution of Room 8B-2-19 and rights, especially in migration cases, is a current which constraints and control mechanisms constitu- international disputes. However, when looking carefully important issue. Being this a vital interest, a wide mar- tional law permits or restricts government-involvement at their activities, arbitral institutions can play an im- gin of appreciation must be recognized to the States in arbitration in a comparative perspective. Its core portant role in the field that comes along with consider- Catarina Santos Botelho: The margin of appre- but the Court needs to identify which dangers to the question is a comparative assessment of whether and able ‘hard’ authority, thus putting them at the center of ciation doctrine between praise and criticism national security are genuine and which are not. how arbitration in private-public arbitration is compat- the international arbitration system. Just to mention The criticism of the margin of appreciation doctrine ible with the public interest and the core constitutional some of their activities, arbitral institutions foster the can paradoxically be seen as a double-edged sword. values of democracy, human rights, and the rule of law. expansion of arbitration; promote conferences and On the one hand, the ECHR is criticized for halting trainings; enact arbitration rules and promote soft- international integration by the allowance of a too wide Kerem Gulay: How to Do Things with Domestic laws; are responsible for administering arbitrations margin of appreciation. On the other hand, some argue Law? An Empirical Study on National Law(s) in and financial resources; and decide a variety of legal that the ECHR forces such integration by authorizing a Transnational Private-Public Arbitration issues related to arbitration proceedings (from arbitra- very narrow margin of appreciation, imposing an overly The paper explores how arbitral tribunals decid- tor appointments and challenges to the admissibil- liberal and individualistic view of human rights. The ing on transnational disputes between private parties ity of joinders and consolidation). After describing, in great difficulty in applying this doctrine is its indeter- and public law bodies tackle domestic law. It adopts the first part of the paper, these multiple functions of minate character, because the ECHR in addition to not a broad conception of “public entity” which includes arbitral institutions in the settlement of private-public having yet defined it, gave it a functional treatment by government agencies as well as state-owned enter- disputes, the second part will focus on the main le- developing it on a case-by-case basis. We believe that prises. The paper provides an empirical survey of more gitimacy concerns that arise when private-public dis- the margin of appreciation doctrine has the enormous than 300 decisions where national law was either ap- putes is resolved institution-administered arbitration. potential of offering a compromise solution between plicable to the merits or constituted the lex arbitri. It Are arbitral institutions suitable for the resolution of universalism and particularities of each State. relies upon an original database specifically created disputes involving public actors and public interests? for the project and involves cases from both ad hoc Are the arbitration rules available on the global market Benedita Mac Crorie: Margin of appreciation and institutional arbitration, such as ICSID, UNCITRAL, appropriate to deal with proceedings involving public and bioethics ICC, AAA, and CRCICA. Initially, the paper investigates interests? Are recent changes made to the procedural The development of biomedical sciences and the if the handling of national law by arbitral tribunals pres- rules sufficient to address legitimacy concerns. Or do new challenges it implies have raised many new ques- ents common patterns in different institutional fora; we need to rethink how arbitral institutions work to tions examined by the European Court of Human Rights and/or reflects a certain consistency within a given ensure private-public arbitration concerns are dealt and this is a field where the margin of appreciation doc- institutional forum in both substantive and procedural with in an appropriate manner? trine is very often used. By analyzing the Court’s case matters. Do the arbitral tribunals mediate transnational law we will try to evaluate whether in these matters the and domestic elements? Do they, instead, appropriate recourse to this doctrine is positive, since it implies the national law for transnational law? Do arbitrators act respect of diverse sensibilities of Contracting States, or as a national judge would have or are they especially whether it involves a lack of human rights protection by conscious and cautious to act like transnational adju- the Court against violations by States, particularly of a dicators? Is there a significant difference in the qual- so called “right to bioethical self-determination”. ity (depth) of analysis between different institutional fora? Subsequently, the paper analyzes if the identi- Anabela Costa Leão: Margin of appreciation and fied forms of engagement with national law display a religious freedom common functionality: An aspect of public authority The European Court of Human Rights has been which is external to specific domestic legal systems required to deal with several issues concerning the ad-

Concurring panels 142 Concurring panels 143 79 I s There a Special East-Central sharp divide between the Central European “success ‘trump’ EU law at precisely the moment when acqui- 80 democracy and the Role of European Constitutional stories” and other, more problematic countries from escing in such claims will make it justifiably harder for Constitutional Courts in Asia Identity? – II. Comparative and the Balkans and further east. Although the post-Soviet states to trust each other’s governmental structures. In European Aspects East and the Balkans represent a more extreme form this paper, I examine the idea of constitutional identity This panel examines the role of courts at critical demo- of corrupt, nationalist illiberalism than Central Europe, against the principle of mutual respect and consider cratic moments. Panelists engage in a comparative This panel aims to deal with the use of constitutional the similarities are striking. We are witnessing a grad- whether the ECJ and national courts have struck the cross-national conversation about constitutional re- identity by some East-Central European Member ual disappearance of “Central Europe” and the return balance properly. view in Hong Kong, South Korea, and Thailand. All three States of the EU. The reference to national consti- to “two Europes” West and East. societies are now at crucial junctures in their demo- tutional identity by governments and constitutional Signe Rehling Larsen and Michael A. Wilkinson: cratic histories, and in all three societies courts are courts sometimes serves to legitimize deviations from Andras Sajo: National Identity and the European Constitutional Identity and Constitutional Dif- making pivotal decisions. By engaging in this cross- the shared values of rule of law, democracy, and fun- Court of Human Rights: Margin of Appreciation ference in the Federation: What Lessons Can Be national conversation, the panelists hope to illuminate damental rights, the ‘basic structure’ of Europe. Es- or Populism á la carte? Learned from East-Central Europe the democratic function and legitimacy of courts in pecially the two main backsliding countries, Hungary Constitutional identity, uncertain and controversial This paper approaches the contested idea of con- young democracies. They also seek to discover in- and Poland justify their non-compliance by referring a concept as it may be, offered some interesting vista stitutional identity in the EU from the perspective of the formative similarities and differences among Asian to national sovereignty and constitutional identity. The for constitutional theory. As a normative concept it is constitutional theory of the federation. In the federa- democracies. This regional focus is both informed by panellists try to answer the question whether there a defensive tool used for sovereigntist purposes. Its tion, constitutional identity plays a key but ambivalent and expected in turn to shed light on broader issues are indeed common characteristics of national con- uses in the case law of the ECHR both in terms of the role because of an internal tension: the federation is about the relation between courts, constitutions, and stitutional identities in these new Member States, and Court’s own role definition and (closely related to it) the political unity constituted in order to preserve the political democracy. how can the EU effectively protect the values in article as part of its localism promoting use in the definition identity of its Member States. Whereas European unity 2 TEU, while respecting the constitutional identity of of the scope of rights is a fundamental challenge to demands constitutional transformation, national iden- Participants Jiewuh Song these Member States. Due to the number of presen- the defense of human rights, at least if one is of the tity requires conservation of difference. This tension Yoon Jin Shin tations, the country case studies and the compara- view that these rights are universal, even if with full re- has been softened in the EU, until recently, by a shared Amnart Tangkiriphimarn tive and European aspects will be discussed in two spect of localism. The rights restrictive use of national ethos of liberal constitutionalism and a shared telos of Swati Jhaveri separate subpanels. constitutional identity did not originate with “Eastern” ‘ever-closer union’. Since the outbreak of the financial Moderator Jiewuh Song Europe but it will have special consequences in that crisis and the refugee crisis however, the tension has Room 8B-2-43 Participants Bojan Bugaric legal environment. revealed serious fault-lines. The special East-Central Andras Sajo European identity offers an illuminating perspective Armin von Bogdandy Armin von Bogdandy: The Dialectic Relationship on the materiality of these fault-lines, because of its Jiewuh Song: Equality, Democracy, and Judicial Kim Lane Scheppele between Arts. 2 and 4(2) TEU particular promise of a ‘return to Europe’ and its dis- Legitimacy Signe Rehling Larsen and Article 2 TEU sets out the basic common values tinct relation to economic and political liberalism. As Debates on judicial review center on the question Michael A. Wilkinson of the European legal space, Article (2) TEU protects integration now demands the transformation of fiscal of whether judicial review could be democratically le- Federico Fabbrini individual constitutional identities. The talk will explore authority through attachment to economic liberalism gitimate. The literature, however, is surprisingly thin Moderator Oreste Pollicino the difficult relationship between these two core provi- and the ideology of austerity, identity demands the on the justification of democracy itself. Perhaps this Room 8B-2-33 sions and evaluate the EU instruments to defend those reclaiming of territorial authority through attachment reflects an assumption that the justification of democ- common values in that light. A specific focus will rest to political illiberalism and the ideology of nationalism. racy is settled and obvious. But this assumption is on the principle of the rule of law. By applying recent The preliminary lesson seems to be that if the threat of unhelpful. For our determination of the democratic Bojan Bugaric: Disappearance of Mitteleuropa? research on social trust, it will substantiate what the anti-austerity politics to currency stability will be care- quality of judicial review will depend on why, precisely, On the Resurgence of Nationalist Populism in European rule of law must request throughout the Eu- fully micromanaged, the threat of political nationalism we think that democracy matters. Building on recent Post-communist Europe ropean legal space and how that provides a theoretical to European integration will be largely overlooked. This work in political theory, this paper makes explicit an Former communist countries, after the collapse angle for a common approach to the relevant legal suggests that the dialectic of constitutional identity egalitarian justification of democracy on which the of the regime in 1989-1991, started following the West. instruments that mediate in the dialectic relationship and constitutional difference in the federation must point of democracy is to avoid particular kinds of in- They wanted to go “back to Europe!”. Transformation between those two core articles. be understood not merely formally but as a material egalitarian relation. It then employs this justification to had begun throughout the region towards market dynamic and one which places the European project evaluate different systems of judicial review, focusing economy and pluralistic political democracy. In the Kim Lane Scheppele: The Constitutional Iden- in a precarious position. on checks on executive power and examining cases 2010s however, a nationalist populism has challenged tity of Anti-Constitutional States in the EU from Asia and the United States. Throughout, the pa- the dominance of liberal paradigm in several CEE The EU was founded on the conflicting principles Federico Fabbrini: Discussant per compares the egalitarian justification to justifica- countries. Whether this new trend of illiberal populism that a) member states had to be able to trust each tions that prioritize self-legislation, and argues that the in the region represents a clear break with the previ- other’s governmental structures in order for them to former has unique theoretical advantages. ous hegemony of liberal institutions and policies is engage in this common project and b) the EU had too early to tell. Nevertheless it shows that the period limited and delegated powers in a world in which its Yoon Jin Shin: Impeaching the President: De- of liberal hegemony is definitely over and liberalism is member states retained control over key aspects of mocracy and the Role of the Constitutional being challenged by an alternative set of authoritar- their national identity. Conflict between the two princi- Court in South Korea ian and illiberal forms of constitutionalism. As various ples was inevitable. The most serious challenges to EU Since late 2016, South Korea has been through examples of democratic fatigue, regression, and back- law are now coming from a new crop of autocrats who another constitutional moment after its 1987 de- sliding into various forms of constitutional authoritari- claim constitutional identity as a cover for illiberalism. mocratization. The now former president practically anism in Central and Eastern Europe show, the “return These new autocrats work to consolidate executive shared her presidential power with her close friend to Europe” is far not yet complete. The ease with which power in a constitutional system from which all checks not holding any public position who manipulated vari- democratic regression has occurred in these coun- on this power have been removed. EU institutions must ous sectors of the state for vast personal profit. The tries in many ways calls into question the supposed now face claims that constitutional identity should scandal caused grave damage to democracy and

Concurring panels 144 Concurring panels 145 the rule of law. Over the winter, millions of citizens considered extensively in multiple jurisdictions. The is- 81 mIXed Constitutions Aslí Bâli and Hanna Lerner: Constitutional De- protested around the nation in remarkably peaceful sue has not yet been considered in the context of one sign in Religiously Divided Societies ways requesting the removal of the president and the of the most problematic contemporary democratic While it is customary to dichotomize between liberal When drafters in religiously divided societies fail re-building of a democratic and just nation. In March, transitions: Hong Kong’s from an externally governed and illiberal regimes and to associate constitution- to achieve consensus in debates concerning religious the South Korean Constitutional Court issued a unani- colonial outpost to a self-governed suffrage-based alism with the former but not with the latter, this bi- identity or law, they may adopt more incrementalist mous decision to impeach the president. The Court special administrative region of the People’s Republic nary view is over simplistic. Across the globe there approaches to mitigate religious conflict. A diversity emphasized the presidential impeachment is not a of China. The Basic Law of Hong Kong proposes the exists a range of regimes, extending from the most of such approaches is possible including ambiguous- political but a constitutional procedure and reviewed eventual election of the Legislative Council and Chief liberal to the utmost illiberal and authoritarian, with ly drafted text, deferral of choices to a post-drafting each ground of the National Assembly’s filing. In the Executive of Hong Kong by some form of universal many variations in between. At least some of these stage, adoption of conflicting principles/provisions, subsequent election, citizens chose the leader of the suffrage: these provisions are at the core of the ‘demo- regimes could be classified as constitutional regimes, and inclusion of non-justiciable principles. We analyze major opposing party as the next president, who was cratic constitution’ of Hong Kong. Achieving this goal but constitutional scholars have yet to explore the such strategies in constitution making exercises in a human rights lawyer in the military dictatorship era. requires consensus between the executive in Hong different constitutional principles underlying these Egypt, India, Indonesia, Israel, Lebanon, Turkey and Ending the legacy of the authoritarian past is one of his Kong, members of the Legislative Council in Hong types of regimes in order to expand our understand- Tunisia. Drawing on these cases, we present a criti- administration’s top priorities. This latest development Kong and the legislative body in China. Although not ing of global constitutionalism. The panel will discuss cal analysis of the liberal constitutional paradigm as in South Korea provides a vivid example of bottom-up a formal requirement, any democratization efforts will both theoretical aspects and constitutional design applied to countries marked by religious plurality and democratic constitutionalism contrasting with recent also require popular buying from Hong Kong residents aspects of illiberal and semi liberal constitutional conflict outside of the Western context. populist movements around the world with nationalist in order to function effectively. However, it is increas- regimes. and authoritarian nature. The research examines the ingly clear that the views of all concerned do not con- Gila Stopler: Semi Liberal Constitutionalism constructive role played by the constitutional court verge on how and when these constitutional aspira- Participants Mark Tushnet Can semi-liberal constitutionalism be coherent as in this process and how the constitutional moment tions should be realised. In addition, all parties have Ran Hirschl and a theoretical idea and in practical reality? We think of was achieved through citizens’ democratic movement started moving outside of the constitutional framework Ayelet Shachar liberalism as guaranteeing a range of individual rights. answered and confirmed by the court. when deliberating issues of political reform. This paper Aslí Bâli and Countries that respect these rights are liberal while looks at the problems in the constitutional design and Hanna Lerner those that do not are illiberal. However, some countries Amnart Tangkiriphimarn: The Role of the Consti- setup of the Hong Kong special administrative region Gila Stopler have intentionally set up a semi liberal constitutional tutional Court in the Thai Politics that have resulted in this political deadlock. The pa- Moderator Moshe Cohen Eliya system built on dual commitments to liberal rights and The Constitutional Court has been one of the most per will then look at one key solution to resolving this Room 8B-2-49 to non-liberal values that partially circumvent some of active and effective participants in Thai politics since deadlock and design issues: litigating the democratic these rights. I will show that the application of liberal its establishment by the 1997 Constitution. It has de- constitution in the courts. This paper evaluates the principles by well-intentioned courts trying to protect cided several critical cases that significantly shaped use of the courts thus far by Hong Kong residents to Mark Tushnet: The Possibility of Illiberal Consti- liberal rights in semi-liberal settings may further dilute Thailand’s political landscape, including the acquittal correct and advance political reform. This is with a tutionalism these rights. I will suggest ways to resolve that. of Thaksin Shinawatra from his failure to declare as- view to evaluating why applicants have failed and what Illiberal constitutionalism would reject the inherent sets properly, the nullification of the general election, can be done to better position the courts in political equality of all persons, reject the priority of the right the dissolutions of de facto Shinawatra’s political par- reform. The ultimate goal is to utilize the courts to over the good, or both, while maintaining some limits ties, and the disapproval of a government’s plan to reconstitutionalise political debate on electoral issues. on government power. A sharply nationalist constitu- spend the national budget. As for its function to deter- tionalism illustrates the former distinguishing between mine the constitutionality of law, the Court dismissed “full” citizens and others. Fraenkel’s dual state attempts the petition claiming that Article 112 of the Criminal to theorize this form of illiberal constitutionalism, and Code (lése-majesté law) was unconstitutional. Due to suggests that it is likely to be unstable. Theocratic con- these controversial judgments, numerous commenta- stitutionalism might illustrate the second possibility. tors have questioned the Court’s role in a democratic The difficulty for perfectionisms is that the existence society. For some, the Court, as part of the coalition of limits on government power to enforce perfectionist among the monarchy, the military, certain political principles is unclear, though Raz has argued for a form parties, and the Yellow shirts, is essentially a potent of power-limited perfectionism. political apparatus used by the conservative elites to maintain the status quo, a process that has been Ran Hirschl and Ayelet Shachar: The Limits of ongoing since the 2006 Coup d’état. Thus rather than Constitutionalism: The Challenge of Religion functioning as an impartial adjudicatory institution, the In this essay (forthcoming in the Chicago Law Court has been perceived as a major cause of the Review) we elucidate the essence of religion’s chal- conflict. This research will examine several judgments lenge to modern constitutionalism. We focus on the of the Constitutional Court and their implications, and alternative belief system aspect of religion, with its own the Court’s relationship with other political institutions symbolic, moral, and interpretive logic, separate con- and their roles in the current political turmoil. Addition- stitutive narratives, different jurisdictional concepts ally, it will project the Court’s role under the recently and conflict resolution norms, cross-border affiliations approved constitution. and solidarity, transnational mobilization capacity etc and how the confluence of these factors has played Swati Jhaveri: Reconstitutionalising Political itself out in various settings, north and south, national Reform in the Hong Kong SAR of China and international, to pose a serious threat to the statist The question of whether constitutional law can pro- project and its constitutional domain. tect consolidate and advance democracy has been

Concurring panels 146 Concurring panels 147 82 more than Fifty Shades of of public order, among others. On the other hand, judi- 83 N ational and European Courts Angela Di Gregorio: Constitutional courts and Grey: The Role of Courts cial scrutiny over people’s decisions will be analyzed in search of the rule of law rule of law in the member States of the Euro- in Peace Making Processes from this perspective. The Colombian Court handed principle pean Union in Latin America down several decisions restricting the scope of gov- This paper analyzes the use of the rule of law prin- ernment’s faculties related to the implementation of The panel will focus on a matter that has been the ciple in the jurisprudence of Constitutional Courts in The role of the Courts during transitional processes is peace agreements. Additionally, it has limited the kind subject of discussion for the past several years within new Member States of the Union. The purpose is to a matter of huge debate. As long as its functions have of decisions people can make within the context of the European Union and its Member States, and that discover any recent or past decisions that could clarify been designed for times of normality, the scope of plebiscites. Those judgements dealt with important is namely the respect for the principle of the rule the use of the principle in these countries. An example judicial review in those extraordinary events arise im- issues such as the Parliaments’ and governments’ of law. In particular, the objective is to focus on the of this is the legalistic concept of the rule of law as portant questions about the limits of the judiciary and political discretionality during transitional processes, judicial protection of the same. Although some au- expressed by the Hungarian and Polish Constitutional the extent of its duty in the protection of human rights. scope of judicial review and limits of people’s choices. thors consider that the judicial protection of the rule Courts at the time of verifying the constitutionality of This panel will address these questions based on three Therefore, the main question this papers aims to an- of law is not appropriate at the EU level so as not the lustration laws. On the other hand, some Consti- recent experiences in the American continent. First, swer is: what is the role of constitutional judges in the to involve the European Court of Justice in issues tutional Courts have achieved a wider and more so- the Peruvian transition to democracy will be analyzed, legitimation of political and democratic powers during with political ramifications, we intend to focus on phisticated application of the rule of law (e.g. the Czech stressing the importance of the contribution given by transitional processes? the existing judicial mechanisms and their possible Constitutional Court). These are issues, which may the Supreme Court in the investigation of Dictator Fuji- activation in a framework not limited to the recent provoke a general discussion on concepts such as mori. Secondly, the current peace process in Colombia Elizabeth Salmón: The Case of Alberto Fujimori: rule of law crisis. Further, we will take a wide rang- constitutional identity sovereignty and the relationship will be examined. This case is particularly interesting A Memorable Experience of Dialogue Between ing view of the judicial enforcement of the principle between internal and European legal sources. This due to the well known activism of the Colombian Con- International Law and Domestic Legal Systems concerned at the EU level (the Court of Justice of the paper intends to widen the debate on the crisis of the stitutional Court, which should serve in this context two in the Fight Against Impunity European Union); at the level of the Member States rule of law in the new EU Member States underlining seemingly contrary goals: the achievement of peace In the context of the Peruvian transition to democ- of the Union (with a particular focus on the case-law that some of them have jurisprudential positions that and, on the other hand, the full reparation of victims of racy, the ruling of the Supreme Court against former of Constitutional Courts); of the candidate countries are perfectly in-line with European values. the armed conflict, which includes the duty to guaran- president Alberto Fujimori constitutes a key stone. The of the Balkans and the Associated Countries of the tee the right of access to justice. Finally, the case law Court found Fujimori guilty of crimes against humanity Eastern Partnership. Tanja Cerruti: The rule of law and the role of the of the Inter-American Court on Human Rights will be based on the application of several human rights, stan- Judiciary in the EU enlargement to the Balkans considered, especially with regard to the limits it has dards from the Inter-American System, the European Participants Alessandra Lang Setting out a medium-term enlargement strategy drawn to the approbal of amnesty and pardon laws. Court of Human Rights and the ad hoc international Angela Di Gregorio in 2015, the EU Commission posed particular empha- criminal tribunals. The importance of this dialogue Tanja Cerruti sis on the so-called ‘fundamentals first’ principle, that Participants Alfonso Palacios is underlined by the use of circumstantial evidence Caterina Filippini imposes to the Candidate Countries to make progress Germán Lozano Villegas gathered in the desitions Barrios Altos and La Cantuta, Moderator Angela Di Gregorio and primarily in some of the accession criteria, includ- Elizabeth Salmón handed down by the Inter-American Court, l which Alessandra Lang ing the rule of law. Maybe the hardest to be defined Moderator Magdalena Correa Henao were brought by the Supreme Court to judge Fujimori. Room 8A-3-27 among the other political criteria, during the previous Room 8A-3-17 enlargement the rule of law was scrutinized by the Commission together with the criterion on democ- Alessandra Lang: The rule of law and the Court racy, thus taking into consideration the functioning Alfonso Palacios: The Colombian Constitutional of Justice of the European Union of the State bodies (from the legislative, executive Court as a political actor in the Colombian Under the present Treaty framework, a special and judicial power) and the fight against corruption. In Peace Building Process mechanism has been set up to challenge serious the current enlargement, the Candidate Countries are Due to the various legal changes that occurred breaches of the rule of law by Member States as a evaluated on the respect of the rule of law as a single as a result of the Colombian peace process between means of protecting the European Union’s fundamen- criterion that refers to the functioning of the Judiciary the Government and the FARC, different constitutional tal and core values. This special mechanism is politi- and the fight against corruption and organized crime. amendments were needed. Those amendments were cal in nature and the actual level of control exercised In light of the above, the paper will reflect on the aims put under the scrutiny of the Constitutional Court, by the Court of Justice is rather limited. Against this that the imposition of this criterion try to reach in the which motivated a series of judgments about the background, and de lege lata, this paper will analyze legal systems of the Candidate Countries, analyzing concept of peace in the Colombian Constitution. In the contribution that the Court of Justice can make if and how it is different from the experience of the my opinion the Constitutional Court overreached its towards a better understanding of the scope of the previous enlargement and focusing on its relations function as a tribunal and ended up becoming a crucial rule of law, as well as to encourage an effective means with the judicial system. political actor within the Colombian peace building of enforcement in order to avoid serious breaches process. This situation has undermined partially the from occurring in the future. Indeed the Court of Jus- Caterina Filippini: Courts and Rule of Law in the credibility of the Court and has arisen serious remarks tice can contribute to sharpening the focus upon the Associated Countries of the Eastern Partnership on its main function as a guardian of the Constitution. elements of the rule of law and to strengthening the Within the Eastern Partnership since the ratifica- respect of the Member States towards it simply by tion of the EU/Georgia EU/Moldova and EU/Ukraine Germán Lozano Villegas: Constitutionl Court, exercising its ordinary competences. This paper will Association Agreements the rule of law principle is not Peace Process and democratic legitimacy discuss a number of instances in which the Court anymore recalled only by political instruments of ‘soft This paper aims to discuss the role and limits of has used the principle of the rule of law, based upon law’ (as it is even now with respect to other non as- Constitutional Courts during transitional processes preliminary references or infringement proceedings, sociated Eastern neighbours) but is also incorporated from two different points of view. In one hand, the especially when other provisions of EU law were at in instruments of hard law which commit the parties control of the government activity will be considered, stake. to cooperate in order to guarantee the respect, the particularly regarding the restrictions on maintenance strengthening and the promotion of the same. Despite

Concurring panels 148 Concurring panels 149 this positive step the enforcement of the rule of law 84 Ne w Trends in Electoral Starting from the Italian case law the paper will re- discretion of the legislator and not to scrutinize its in Georgia Moldova and Ukraine may be effectively Matters: the Role of Courts flect, in comparative perspective, on the constitutional motives. Depending on the issue at hand, this could guaranteed only departing from a common (or almost and the Venice Commission implications of Courts intervention on electoral laws. lead to judgements taking a fairly hands-off approach an even more approximated) concept of the same as well as to those conducting a very detailed analysis principle by both the EU Member States and the As- The Panel deals with the role of Constitutional Courts Cristina Fasone and Giovanni Piccirilli: The Eu- of highly technical elements of the existing system. sociated Countries. Starting from this premise the and international actors on electoral law matters. ropean Court of Human Rights and the Code of The decisions of the Bundesverfassungsgericht on paper will thus analyse the jurisprudence of the Con- Antonia Baraggia and Luca Vanoni will address the good practice in electoral matters electoral law cover a wide range of issues, but have stitutional Courts of the Associated Countries which, recent case law of the Italian Constitutional Court; Over the last twenty years the European Court of not dealt with a fundamental overhaul as was the case besides the legal doctrine, play a major role in the Beke Zwingmann will look at the Bundesverfas- Human Rights (ECtHR) has rendered many signifi- in Italy. The current system is a combination of propor- disclosure of the rule of law principle. sungsgericht case law on electoral matters. Ezster cant judgments on several aspects of electoral law tional representation and a first-past-the-post system. Bodnór’s paper will deal with two different aspects from electoral thresholds to the issue of disenfran- The feature that is currently discussed rather contro- of the Hungarian regulation concerning the voting chisement and the right to vote in the election of the versially is the so-called “5% threshold” which pro- rights of Hungarian citizens living abroad. Cristina European Parliament. On electoral matters since vides that all parties which do not gain a share of 5% Fasone and Giovanni Piccirilli will look at the main 2003-2004 the Council of Europe through the Ven- or more of the proportional vote are not considered ECtHR judgments on electoral issues, focusing on ice Commission and with the support of the Parlia- for the eventual allocation of seats in parliament. The the ECtHR decisions where the Code of good prac- mentary Assembly and the Committee of Ministers Bundesverfassungsgericht has consistently ruled that tice in electoral matters was cited, on the nature of has promoted the Code of good practice in electoral as far as elections to the Federal Diet (Bundestag) are those cases, the parties involved. Last but not least matters a non-binding document with sets common concerned, such a cap is constitutional even though Pierre Garrone will discuss the broad topic of the guidelines for electoral competition as well as for the it constitutes a severe limitation of the principle of European electoral heritage, focusing on the Con- pre- and post-electoral stages. Starting from 2007 the equality of votes. However, recent events prompted tribution of the Venice Commission. ECtHR has recognized the principles enshrined in the demands for a fundamental review of that position: Code of good practice as standards for its judgments. in the Bundestag elections in 2013, the votes which Participants Antonia Baraggia and The proposed paper aims to investigate how often in ended up not being considered for representation due Luca Pietro Vanoni which cases and to what extent has the ECtHR used to that cap came up to nearly 16% in total. Further- Cristina Fasone and the Code of good practice to deliver its decisions. This more, the court issued two decisions in 2011 and 2014 Giovanni Piccirilli way the paper is intended to assess if and how the which considered a similar threshold for elections to Pierre Garrone Code has indirectly become a binding instrument for the European Parliament to be unconstitutional. My Beke Zwingmann the Council of Europe’s Member States by means of contribution to the panel discussion will explore the Eszter Bodnár the ECtHR case law. The paper will proceed as fol- question as to whether the Bundesverfassungsgericht Moderator Pierre Garrone lows: it firstly looks at the main ECtHR judgments on may have prioritised legal certainty and jurisprudential Room 8A-3-45 electoral issues; secondly, it considers the content of consistency over an opportunity to send a stronger the Code of good practice; thirdly it focuses on the signal to the political powers, in other words whether ECtHR decisions where the Code was cited, on the the court has not been ‘activist enough’ in this matter. Antonia Baraggia and Luca Pietro Vanoni: Elec- nature of those cases, the parties involved (in particular, toral laws under scrutiny: judicial activism or the Member State concerned) and the impact of the Eszter Bodnár: Lost between Budapest and judicial subsidiarity? Code on the final judgment. Strasbourg: Equality of the right to vote of Hun- The paper deals with the most recent cases (Deci- garian citizens abroad sion no. 1/2014 and no. 35/2017) of the Italian Consti- Pierre Garrone: The European Electoral Heritage – Equal suffrage is a basic principle of democratic tutional Court on the constitutionality of the electoral The contribution of the Venice Commission elections which is included in most constitutions and laws. Before the leading case decision no. 1/2014 the Since its creation the Venice Commission has international human rights documents. It applies to the Italian Constitutional Court – differently from other been active in electoral field in order to promote the design of the boundaries of the political community, constitutional judges – has been resilient in entering principles of the European electoral heritage and to electoral system and electoral procedure. However, in a highly political sensitive field as the electoral rules. assess the conditions necessary for their application. there are special cases where the effectiveness of But with decision no. 1/2014 it declared unconstitu- The paper deals with the role of the Venice Commis- this principle is questionable. This paper deals with tional some profiles of law n. 270/2005 paving the sion in fostering the spread of the European Electoral two different aspects of the Hungarian regulation con- way for the judicial intervention in electoral matters. Heritage. cerning the voting rights of Hungarian citizens living Indeed with decision no. 35/2017, the ICC ruled on the abroad. The paper gives an overview of the regulation constitutionality of the Italicum (law n. 52/2015) and it Beke Zwingmann: The Bundesverfassungsgeri- and presents the recent constitutional disputes and struck down two key features of such law (in particular cht and the 5% threshold relevant case law of Hungarian and European funda- the second ballot provision). This turn of the ICC has In matters of electoral law, the approach of the mental rights protection mechanisms. Finally, it opens been sharply criticized under procedural and substan- German Bundesverfassungsgericht can be described the debate by posing some key questions on the future tial point of views. How we can evaluate such “turn” of as being no more or less ‘activist’ than in other areas of the Hungarian situation and more generally on the the ICC? Is it a case of judicial activism or of judicial of law. The German Constitution does not prescribe level of protection of voting rights before the national subsidiarity – in the light of the persistent legislative the choice of a specific electoral system – it leaves and international institutions. inertia? Is the ICC following the path of other Consti- the decision to the legislator subject to certain mini- tutional Courts, which traditionally scrutinize electoral mum criteria. According to Art. 38, elections have to laws? Which are the arguments used by the Court in be “general, direct, free, equal and secret”. As long balancing the different constitutional values at stake as the system designed by the legislator adheres to and which is the weight of the proportionality test? those criteria, the court’s approach is to respect the

Concurring panels 150 Concurring panels 151 85 Nord ic Courts as late 1800s. The Norwegian Supreme Court has to the constitutional authority of the Constitutional Law 86 oN authority: the politics of Constitutional Actors: some extent been more willing to strike down legisla- Committee has influenced to the roles and decision- the West Agents of Change or tion than the courts of the other Nordic countries, but making of the two Supreme Courts, which should act Reluctant Participants? yet reluctant in the decades after WWII. In June 2015, as independent courts reviewing the constitutionality Talking about authority is to talk about memories. Trust- constitutional review was codified in the 1814-con- of legislation but at the same time stay subordinated ing our own memory and believing in a memory laid The panel will discuss interaction between parliaments stitution – a year after the Norwegian constitutional to the authoritative role of the Constitutional Law Com- behind the writing history of a nation or of a constitu- and courts in the Nordic countries. Traditionally courts reform on human rights. However, some voices were mittee of Parliament. tion has been driving modernity upon a promise of have played a peripheral in Nordic constitutional or- critical, especially pointing out that the judiciary would a better future. In spite of such regarding, time and ders. But the role of the courts might be changing. gain more power on behalf of the legislative. This pa- again memory widely reproduces aberrations, as Paul The panel sets out to understand what factors drive per sets out to show that the shift in constitutional de Man would state. On this chaotic scenario lies the this change, how such a change plays out within the review and interpretation clearly came earlier than ghost of the authority. Following Kojève by organizing courts, and what the impact might be on the relation- the codification in 2015, as a consequence of the authority as categories, or Kafka and his Jewish notion ship between the legislature and the courts. We are ECHR decisions against Norway in the 1990s, and as of authority, legal , and constitutional order have been interested in the ex ante and ex post constitutional re- a consequence of parliamentary resolutions such as involved by many Gordian knots concerning to author- view mechanisms, methods of constitutional interpre- incorporation of the European Convention on Human ity. While “the people” was elected by the constituent tation, changes in the dialogue between parliaments, Rights into Norwegian law in 1999 and the constitu- power to be sovereign, modernity has been a burden their review bodies and the courts, and finally, what tional human rights reform in 2014. to “the people”. Beyond legal issues, the authority has internal and external factors drive these the changes, been presented in main or in irrelevant questions, but or possibly uphold the status quo? There is a general Anna Jonsson Cornell: Changing Methods of independently of its size it bears upon each person perception that the membership of the EU and the Constitutional Interpretation in Swedish Con- with the other. This panel seeks to shed some lights ECHR empower Nordic courts. Still, relevant case law stitutional Law? on the relation between public law and authority and does not point in one direction only. There are signs of Swedish courts have traditionally been reluctant the many possible outcomes that could be grasped complicated patterns developing and important stra- to engage in constitutional review, deferring to the under the sign of authority. Further, our goal is to bring tegic choices made by the courts. The overall question legislature. However, recently there has been a shift up a political and philosophical inquiry into the legal that this panel will try to answer is what these strate- of power from the legislature to the courts, due to for aspect of authority in order to confront it with submis- gies are, what external and internal factors impact on example external political and legal factors (EU- and sive experience of every day’s political life. them, and what implications they will bring with them Convention Law), and domestic legal factors such as for the relationship between courts and parliaments? legislative techniques leaving larger space for inter- Participants Alexander Somek pretation by the courts, an expansion of policy areas Hauke Brunckhorst Participants Helle Krunke to be decided by the courts, for example, migration Jonathan White Benedikte Moltumyr Høgberg and environmental issues. This paper will analyze re- Octaviano Padovese Anna Jonsson Cornell cent case law in the Swedish Supreme Court and the Moderator Iderpaulo Carvalho Tuomas Ojanen Swedish Supreme Administrative Court in order to Room 8B-3-09 Ragnhildur Helgadóttir trace and explain changes in methods of constitutional Moderator Janne Salminen interpretation by the two courts. The overall question to Room 8B-3-03 be discussed is whether the Swedish Supreme courts Alexander Somek: Liberalism and Authority are reluctant constitutional actors forced into becom- ing more active? And if this is the case, to highlight the Hauke Brunckhorst: Legitimacy and authority Helle Krunke: Winds of Change? The Danish Su- strategies adopted by the Swedish courts in order to preme Court and EU integration from the Maas- put the result in a comparative Nordic context. Jonathan White: Emergency rule and the au- tricht judgment to the Ajos judgment thority of technocracy The Danish Supreme Court traditionally shows Tuomas Ojanen: Human Rights as a Source of What does a period of emergency rule of the kind restraint in relation to the political institutions. Only in Judicial Empowerment and Constitutional Dy- witnessed in the euro crisis imply for the prospects of one judgment has the Supreme Court found a piece namics in the Nordic Countries technocracy? Two contrasting theses present them- of legislation unconstitutional. This restraint has also All five Nordic countries – Denmark, Finland, Ice- selves. On one view, emergency and technocracy are applied to the area of EU integration. However, a shift land, Norway, and Sweden – have a written constitu- complementary logics: exceptional situations are of thought seems to be on its way. This paper analy- tion with catalogues on constitutional rights, in some when the claim to expertise-based government car- ses the Supreme Court’s approach beginning with the countries even fairly broad ones (e.g. Finland), and ries furthest. Knowing how to act in such situations, Maastricht judgment, over the Lisbon judgment to the their track record in human rights treaty ratification is and when to circumvent existing politico-legal norms, recent Ajos judgment. During this period we see at a excellent in international comparison. Yet, rights and is the ultimate measure of expertise, perhaps even a move towards a more active Supreme Court stepping judiciaries have traditionally assumed rather marginal capacity whose performance is a condition of tech- increasingly into a role as protector of the Constitution, roles on the Nordic scene of constitutionalism, par- nocratic authority. On a competing view emergency general legal principles and the People. The reasons ticularly in Denmark, Finland and Sweden. rule spells significant problems for technocracy, partly for and the scope of this development are discussed. because it leads to the intrusion of non-scientific cri- Ragnhildur Helgadóttir: Icelandic Courts as teria on decision-making, partly because it questions Benedikte Moltumyr Høgberg: Constitutional re- Constitutional Actors the adequacy of institutional expertise itself. Espe- view and constitutional interpretation in Norway This paper will consider the recent case law of the cially when crisis management forces collaboration In Norway, constitutional review and constitutional two Finnish Supreme Courts as well as Constitutional between multiple institutions, the technocratic cre- interpretation has been a judicial tradition since the Law Committee of Parliament in order to examine, how dentials of each are likely to come under strain. The

Concurring panels 152 Concurring panels 153 paper evaluates these two contending theses with the 87 outsourcing Dispute the processes of outsourcing and delegation of judi- 88 Procedur al Review: Definition, recent experiences of the EU in mind, and looks at the Resolution? Expectation cial powers have taken place consequently leading to Functions and Limitations role of courts in validating or challenging claims to ex- versus Reality the removal of dispute resolution from the public view. pertise. It concludes by exploring the merits of a third In deciding on cases about infringements of funda- perspective, in which emergency rule signals neither We take as a starting point the notion of the ascen- Stephanie Law: The Enforcement of EU Con- mental rights, it is generally expected that courts pro- the augmentation nor termination of the technocratic dency of the court (the extension of its jurisdiction, its sumer Law: From Courts to ADR tect the substance of these rights through reasonable- logic but rather its transformation. adjudicatory role and its control over the exercise of This paper will discuss one of the fundamental ness or proportionality review. Scholars have argued, (public and private) power). We examine the legal and shifts in the way in which consumer rights (both with however, that it could be valuable for courts to take Octaviano Padovese: Remarks on authority: normative framework within which this “expectation” regard to claims brought by and against consumers) a ‘procedural turn’ in their argumentation. Instead of Kafka and “Kairos” exists, and the general assumption derived from it, are enforced in the EU Member States. In particular, it (only) reviewing the substantive reasonableness of in- Disregarding a strictly scientific overview on au- namely that the court is the only institution to provide will examine the shift from individual, private redress terferences with a fundamental right, they might (also) thority, no one has understood better than Kafka the “real” justice. We then examine the nature of dispute before courts to alternative (and especially online) dis- expressly take account of the quality of the legislative, implications of authority. Each of his writing was about resolution in diverse areas, including consumer pro- pute resolution. As neither the directives on mediation administrative or judicial procedure that has led up to authority, including a letter addressed to his father, ac- tection and judicial cooperation in civil matters. In and consumer ADR nor the regulation on online dis- the alleged violation. cusing him of years of an abusive relationship. Further these specific areas a fragmentation of adjudica- pute resolution have a harmonisation purpose, the le- Kafka was able to pinpoint that authority occurs even in tory power is observable, which emerges at once gal and policy frameworks of ADR established across Participants Leonie Huijbers horizontal relations. Kafka cosmological writing is able through and a result of the outsourcing of dispute the EU are necessarily heterogeneous. Nevertheless, Eva Brems to interrupt our uncrushable believing in the world’s resolution tasks to institutions other than courts. The the ADR directive provides that it should be facilitated Janneke Gerards order. Kafka has the incomparable skill to use his own participation of these additional players generates with expertise independence and impartiality, and in Kasey McCall-Smith personal experience and to translate it to a general new realities which require that we call into question line with the principles of transparency, effectiveness, Moderator Aileen Kavanagh feeling that things happen according to Kafka’s narra- the generally widespread assumption that both the fairness and liberty. The paper assesses one of the key Room 8B-3-33 tive. On the other hand, Kojève efforts to explain briefly role and power of the court are increasing. Against concerns with ensuring effective access to justice in the meaning of authority elucidate a sheer difficulty to this background we examine the extent to which line with these provisions, Art.47 CFR and Art.6 ECHR, define and to frame a structural semantic of authority. these shifting expectations and realities adhere to namely the scope for the review by courts of decisions Leonie Huijbers: The Concept of Procedural- Although Kojève is well known for being inspired by the continuing importance of the court in ensuring of ADR entities, facilitated via the ODR platform. This is type Review Revisited: Definition and Modalities Hegel and his slave/master analysis, Kojève reaches the effective protection of rights paying particular done in light of key CJEU and ECtHR case law (includ- Procedural-type review appears to be increas- the conclusion that Hegel wrote a general (“Allgeme- attention to the possibility for the review by courts of ing C-317/08 Alassini). ingly applied in fundamental rights cases. Scholars ine”) theory of authority. For Kojève, it would be relevant these bodies’ decisions. have noticed a ‘procedural turn’ in relation to the to detail the differences between types of authority. Martina Mantovani: The Role of the Notary in case-law of the European Court of Human Rights, the Briefly speaking, for Hegel the relation of authority Participants Ana Koprivica Dispute Settlement European Court of Justice and constitutional courts; summons in an allegorical relation between a mas- Stephanie Law Over the last few years, a number of civil justice also in relation to the United Nations Treaty Bodies ter, which overcame his animality condition of fearing Martina Mantovani reforms have outsourced specific adjudicatory powers a trend of ‘proceduralization’ is mentioned. The no- death, while the slave flunks out his trial. As Kojève Moderator Stephanie Law to public servants in general, and to notaries in particu- tion of ‘procedural-type review’ can generally be said explains “Mastery arises from the Struggle to death of Room 8B-3-19 lar, as a strategy for improving judicial efficiency and to refer to judicial reasoning in which the decision- ‘recognition’ (Anerkennung)”. So to speak Hegel’s idea reducing the courts’ backlog. As a result, notaries are making procedure or process of a public authority has of authority is a quite strong example of how a word steadily carving out an operational sphere of their own played a role. Furthermore, procedural-type review is which is performative, however, it is normally used to Ana Koprivica: Justice In (and Out of) Sight: Re- in a range of different matters, typically with respect to distinguished, or opposed to, substantive-type review. make statements, indeed has more allegorical im- visiting the Role of the Court undisputed claims. Nevertheless, at the cross-border However, whilst different scholars seem to be refer- ages of authority than an adamant concept. This paper This paper entertains the general assumption of level, other States might not be as willing to depart ring to a similar phenomenon in their discussions of seeks to demosntrate how the concept of authority the traditional role of the court as the chief adjudicator. from the abovementioned “expectation” as to the this ‘procedural trend’, the concept of procedural-type may be rehtorical and how it may engaged with “kairos”, It firstly aims at providing a brief historical account of orthodox role of courts, thus creating barriers to the review remains rather elusive. For example, different the moment of a decision. the evolution of the role of the court. Albeit an ancient circulation of “final output” of said activities. Follow- terms have been suggested to describe this proce- practice, adjudication in democratic societies has ing a brief overview of the competences entrusted to dural phenomenon, such as ‘process oriented review’ been transformed acquiring the four key attributes: notaries at the domestic level, this paper purports to and ‘semi-procedural review’, and debates focus on access to justice, judicial independence, requirements critically assess the place they currently occupy within different types of processes, such as enactment of of public processes, and the ideal of fair procedures. the framework of the European judicial cooperation in legislation and judicial decision-making. Accordingly, through examining these features, the civil matters. Specific attention will be paid to the word- paper attempts to identify what and how has shaped ing of the instruments dealing with family (Brussels II/ Eva Brems: The ‘Logics’ of Procedural-Type Re- the aforementioned assumption. The paper places Maintenance Regulations) inheritance (Succession view by the European Court of Human Rights a particular focus on the publicity of processes (as Regulation) and commercial (Case currently pending In the case law of the European Court of Human synergistic with the obligations of fairness and inde- before the ECJ) matters. Rights, a ‘procedural turn’ can be noted. That is to say pendence) and looks into how the public adjudication it seems that in its assessment of the compatibility of stimulates participatory obligations, provides for the a particular measure or situation with the European public oversight of legal authority, and to what extent Convention on Human Rights, the Court increasingly the publicity of court proceedings contributes to the includes an appreciation of the quality of the domes- public perception of the courts as the leading justice tic processes that lead to this measure or situation. providers. Ultimately, the aim of the paper is to set Scholars have noted this procedural turn, and have the stage for further discussion and open the floor for started to analyse it, by mapping and assessing its challenges to this expectation in those areas where various manifestations. Building on such mapping

Concurring panels 154 Concurring panels 155 exercises, this paper adopts a normative approach. under a treaty. The second bases a breach determina- 89 criminal law, constitutional that are at stake for the non-moving party. Drawing It explores several potential motivations for the Court’s tion on the procedural dimension of a substantive right. principles and human rights upon the capabilities approach, I sketch a pragmatist turning to a quality assessment of domestic proce- This paper will examine how both contribute to the model for rights allocation that is sensitive to effective dures and processes. developing role of procedural review in international This panel is the first of two, linked proposed panels access to a range of central capabilities, regardless quasi-judicial mechanisms. on criminal law, constitutional law and international of whether the action in question qualifies as “punish- Janneke Gerards: Modalities of Procedural Re- law. (The second panel is entitled “criminal law, inter- ment”. In other words, I propose defining the “criminal view in the Case-Law of the European Court of national law and human rights.”) Criminal law has been law” for purposes of procedural rights allocation in Human Rights one of the most contentious areas of public law in terms of capabilities rather than in terms of punish- In recent years the European Court of Human recent decades. From disputes about sexual relations, ment. I suggest that there are reasons to prefer the Rights has emphasised the importance of extensive drug use and physician assisted suicide to battles over pragmatist approach. In part, this is because of the national deliberations and sound decision-making sentencing and police powers, courts have inserted troubling implications of formalism (especially for the procedures to help avoid human rights violations. It themselves in a major way in a wide range of polarizing so-called “collateral consequences” of a conviction), has also indicated its willingness to take account of and controversial issues in the criminal law. This is true and in part because constitutional norms of due pro- such deliberations and procedures in its review of the in both international and domestic criminal law. Per- cess are more fundamental than the traditional, but reasonableness of limitations of Convention rights. haps unsurprisingly in both domestic and international largely inchoate, distinction between civil and criminal For example in its contribution to the 2015 Brussels contexts, questions of legitimacy are now taking center process. Conference on the long-term future of the Court it stage. Rather than considering rights provisions in remarked that ‘the fact that the parliamentary record constitutional documents as simply the embodiment Hamish Stewart: The Constitutional Right to indicates that there was in-depth consideration of the of first-order moral judgments, a number of criminal Procedural Fairness human rights implications of an enactment can be of law scholars have instead begun to focus on the in- significance in certain types of case i.e. in which the stitutional and political dimensions of criminalization, Malcolm Thorburn: Constitutional Regulation of margin of appreciation arises‚‘ (para. 6). It also has both at home and in international contexts. The aim Substantive Criminal Law in the Common Law mentioned in several judgments that ‘[w]here the bal- of the panels that we are proposing is to provide an World: An Overview ancing exercise has been undertaken by the national opportunity for a group of scholars working on these authorities in conformity with the criteria laid down in issues to share their current work in this area. Javier Wilenmann: Criminalization Conflicts and the Court‚‘s case-law the Court would require strong Constitutional Norms reasons to substitute its view for that of the domestic Participants Vincent Chiao Legal literature tends to relate itself with criminal- courts‚‘ (Von Hannover No. 2 [GC] para. 107). Hamish Stewart ization assuming a substantive justice approach: a Malcolm Thorburn theory of criminalization should establish the condi- Kasey McCall-Smith: Procedural Review and Javier Wilenmann tions under which a legislative criminalization decision the Human Rights Treaty Bodies Leora Dahan Katz can be justified in principle. Although more ambiguous International human rights treaties set out a mini- Moderator Vincent Chiao and less assertive, a similar approach can also be seen mum standard of treatment to which states agree in Room 8B-3-39 in constitutional literature: constitutional law would terms of human rights protection. This enables evolu- establish certain substantive definitions on what can tive interpretation and presents a particular challenge be criminalized and constitutional courts may have in articulating the basis of a substantive breach that Vincent Chiao: Formalism & Pragmatism in review powers of legislative decisions that violate is universally applicable across States Parties to a Criminal Procedure such definitions and therefore violate constitutional particular treaty. Universality applicability however is a What is “criminal” law? In many contexts, this might rights. The presentation “Criminalization conflicts primary goal of the international human rights system be thought of as a largely academic question, one and constitutional norms” in the panel on “criminal and requires treaty bodies to balance the progressive for practical people to wonder about in their spare law constitutional principles and human right” aims realisation of rights against historic state sensitivi- time. But in at least one type of context, it is a question at showing the shortcomings of such an approach for ties to interference in domestic affairs. This balancing with very significant practical repercussions. This is the constitutional analysis of criminalization decisions exercise has put treaty bodies at odds with states. the context of criminal procedure. Many jurisdictions and seeks to sketch an alternative approach. Two are Despite this tension the ICJ has clarified that treaty define a special procedural regime for people facing the main arguments that will be explored. On the one bodies the Human Rights Committee in particular are criminal charges. Of course, in many – probably most – hand, the substantive justice (or constitutional values) the ultimate interpreters of their respective treaties cases, this question will not be controversial. However, approach does not take into account the conflictive thus it is crucial to understand the semantics of their there will be cases that are controversial, and then it nature of criminalization processes. Sociological and decision-making. Review of treaty body jurisprudence will be important to have a principled way of deciding socio-legal studies show that criminalization decisions suggests that migration toward a procedural approach which procedural rights should apply. In this chapter I are often connected with activism from social move- to human rights violations may resonate more naturally consider two methods for deciding when a legal mat- ments or interest groups. As a general claim, conflicts with states due to the simplicity of establishing pro- ter qualifies as “criminal” for purposes of allocating about the status of a given conduct in relationship cedural infractions. It is argued that proceduralized procedural rights. The first, formalist, approach is to with the criminal law (abortion, consensual intercourse decisions function as an aid in the establishment of define the criminal law by reference to the concept of between same sex adults, drug consumption, white- a common human rights standards by slowly moving punishment. If you are unsure whether you are involved collar criminality) are generally related to larger po- away from purely value-based determinations a prac- in a criminal case you should ask whether the state by litical conflicts; they can be seen as (mostly but not tice that sits more easily with states. This migration is enforcing its laws against you is trying to punish you. only symbolic) instruments in the imposition of moral reflected in two identifiable practices. The first sees If so, chances are you are in a criminal case. If not, or justice frameworks by conflicting groups. As such, states in breach of obligations based on the failure to then probably not. The second pragmatist approach most decisions related to the substantive justice of any adhere to rules of procedure or procedural obligations defines the criminal law by reference to the interests possible decision will likely be presented as political

Concurring panels 156 Concurring panels 157 decisions by its detractors. Constitutional courts have 90 Pro tecting democracies and the media, independent cultural institutions, and so tion to the remarkable judicialisation of political parties historically had problems with controlling criminaliza- democratic rights: through forth, to avoid the complete successive of one pole in post-war Europe. This judicialisation consists of the tion decisions precisely because of this: as the deci- courts and other mechanisms of the dialectic to overcome the other pole. However, constitutive codification of political parties and the sion is intertwined with deep political conflict, generally the external constraints can never guarantee a final legal regulation of political parties. The Netherlands attempting to rationalize the output of legislative deci- In this panel, Li Venter and Broekhuijse propose to dis- solution. Concerning that the diverse social institu- seems to deviate from the European pattern. Political sions on criminalization through a substantive correc- cuss the protection of democracies and democratic tions are gradually eroded by technological society, parties are not even mentioned in the constitution and tion control is short-sighted. Aggressive decisions to rights (such as the freedom of speech and electoral the overexpansion of technological control will drag there exists no Party Law. Because of this particularity, stop a criminalization process or to decriminalize a rights). This will be mainly although exclusively be dis- the dialectical ground motive to the pole and expose this contribution aims provide insights in the Dutch given action (for instance: abortion) may have impact cussed from the perspective of the courts. Both the itself on the crisis of radical reaction by its opponent. legal framework. In this paper, we describe the devel- on the standing of a constitutional court, trapping it in paper of Venter (focus on freedom of speech) and Then the balance would be replaced by alternate oc- opment of political parties in the Netherlands and the the political conflict that was related to the decision. Broekhuijse/Spoormans (focus on regulation of politi- currence of chaos and stifling total control. The radi- discussion on the legal regulation of parties. We argue The main approach to criminalization seems therefore cal parties) will take a comparative approach. The pa- cal antithesis between ground motives of control and that the developments of parties is quite similar to to fail as an institutionally aware constitutional solution per of Li/Qi provides a broader theoretical framework freedom which acts as a formative force of populism other European polities, but that legal regulation took a to criminalization problems. On the other hand, the in which these discussions take place. The relevance puts forward an impossible task for contemporary lib- different route; i.e. not by the front door of constitution- rights or justice centred approach is generally too fo- of this panel is partly discussed in the submissions of eral and democratic to uproot this crisis completely. alization and a Party Law, but by a backdoor through cused with legislative (de)criminalization and therefore the papers of Venter and Broekhuijse/Spoormans; it international law and via the Courts. We conclude our unaware of the institutional relevance of innovative offers insights that are not yet commonly known, as Roxan Venter: The realisation of democracy and analysis by giving some reasons for this Dutch route criminalization decisions (decisions that deem that well as a theoretical framework in which we should freedom of expression within the judicial au- to judicialisation. certain conducts that were not prosecuted or pun- value the discussions. thority: a comparative perspective ished now fall under the criminal law) that are taken on Freedom of expression forms an integral part of other (judicial bureaucratic) levels. As political conflict Participants Haibin Qi modern democracies. One of its primary functions is to may also attempt to be solved outside of legislative Roxan Venter support democracy by facilitating public participation disputes, political conflict also plays a major part here. Irene Broekhuijse and in governmental activities, enforcing public and politi- The constitutional significance of these dynamics is Huub Spoormans cal discourse and ensuring open and transparent gov- higher here, as the disruptive power of political con- Moderator Irene Broekhuijse ernment. Freedom of expression therefore also has a flict is all the more important in areas where, unlike Room 8B-3-49 significant role to play within the various branches of legislation actions should be motivated by other fac- government. This role is clearly visible in the activities tors. Criminalization conflicts that take place at this of national legislative institutions, such as a parlia- level can therefore create international institutional Haibin Qi: The Ground Motive of Arising of Popu- ments, or even within the executive branch, both of frictions. At the same time, the general tendency to- lism and the Dilemma of Modern Democratic which enjoy broad media coverage in most modern wards (over)criminalization that the political system Society states. The role of freedom of expression within the manifests makes a pure laissez faire constitutional The rise of populism in Europe and the United activities of the judicial branch, however, is much less approach unsatisfying. Whatever constitutional theory States preludes the crisis in liberal democracies in obvious. The purpose of this paper is therefore to ex- one may defend, simply declaring that criminalization the twenty-first Century. Populism is always a threat plore the less obvious branch of government when it decisions are not constitutionally relevant does not to the contemporary world because of its potential comes to the use of freedom of expression by discuss- seem to be satisfying at all. By exploring other institu- subversive force to instituted social structures and ing the different ways in which freedom of expression tional arrangements such as “weak” forms of judicial the possible future of chaos and totalitarianism it may gives effect to democracy within the context of the review or special legislative procedures when related bring about. The existing social structures in contem- judicial authority. In order to determine how freedom to criminalization decisions, the presentation aims porary western society is instituted under the influence of expression gives effect to democracy within the ju- at analysing the way in which constitutional norms of neo-liberalism and moves toward a mechanized dicial branch of government, different elements of de- and institutions may have a positive impact on the society. This process is inspired by the ground motive mocracy will have to be identified and it will be shown legislative outcome of criminalization discussions and of control. If mechanization of society motivated by the how these elements are applied within judicial organs generally on the level of resistance of a legal system intent to control is the only way to realize the social and which role freedom of expression would play with to over-criminalization without compromising legisla- structuralizing, the established social structures will regard to each of these elements. Such a discussion tive sovereignty and democratic legitimacy. For this inevitably cause suffocating individuality. As the reac- may also assist young democracies in the organisation purpose, the presentation will present the general tion of overextension of this ground motive, freedom of their own branches of government in such a way as claim regarding the power issue that is at the centre as its counterpart which is stirring populism in the to create vibrant and sustainable democratic systems. of most conflictive criminalization decisions. It will then recent years, is gunning for emancipation, exposing proceed to show the shortcomings of a purely rights the structure of democrats to the crisis of being un- Irene Broekhuijse and Huub Spoormans: The or justice centred approach when dealing with such dermined. This crisis can be temporarily alleviated regulation of political parties in the Netherlands decisions, and finally explore the way in which consti- within the background of this humanist antithesis. A Among others, like Katz and Mair, the Dutch politi- tutional norms and institutions can be understood (and well-organized liberal democratic society is character- cal scientist Van Biezen has elaborated on the chang- designed) when related to criminalization. ized by its capacity to keep a balance between anarchy ing relationship between political parties and states. of free individuals, on the one hand, and total control Based on empirical research she concluded that the Leora Dahan Katz: How Victims Matter by structural power mainly through actions of govern- relationship between the state and the parties (also ment and corporations, on the other hand. The control/ in the Netherlands) have become stronger over time, freedom dialectic of the ground motive as a drive, a at least with regard to the financial dependence, of tendency as well as a motive could be restrained by parties on the state and the increasing regulation of ways found in institutions such as families, universities, parties by the state. In particular, she has drawn atten-

Concurring panels 158 Concurring panels 159 91 religious pluralism and the development of the two international human rights appears strongly entangled with power-distribution 92 judicial indepedence & international human rights bodies’ case law concerning conscientious objection and the strategic positioning of these actors. In this the Indonesian law: The case of conscientious to civil and military service from divergence to coher- perspective, the right to conscientious objection nego- Constitutional Court objection ence based on the theoretical framework of ordered tiated in Strasbourg bears the imprint of transnationally pluralism (pluralisme ordonné) put forward by Mireille organized faith-based and secular advocacy groups Indonesian Constitutional Court comes with its own The enforcement of human rights law entitles the indi- Delmas-Marty. Drawing on such analysis, potential bridging national and transnational judicial realms and controversy. Since its establishment, the Court has vidual with unprecedented freedoms. However, with an prospects of the future relationship of the ECtHR and competing around newly emerging lines of contention shown its significant in to develop democratic pro- increasingly pluralistic and religiously diverse society, the UNHRC are addressed. which relate in particular to the question of religious cess. However, the Court may overuse its authority and conflicts between the State and individual rights as pluralism and the place of Islam in Europe. claim it on judicial independence. Parliament and the well as between competing individual rights intensify. Tania Pagotto: New cases of conscientious Government’s attempt to reign Court judicial activism The right to conscientious objection may act as an objection: the legal factors considered for the Stefan Schlegel: Discussant in 2011 and 2013, had been overthrown by the Court. instrument to accommodate different sets of values judicial recognition This panel intends to challenge two approaches. First, characterizing today’s society. The panel questions the The right to conscientious objection has been le- whether judicial activism through issuing conditional legal dimensions of this right, its dialogical develop- gally defined by national and supranational legislators constitutionality is the right thing to do. Second, wheth- ment in international courts and its strategic mobiliza- mostly in relation to the military conscription. Also the er there is need to redefine selection and supervision tion by social actors. Fabienne Bretscher investigates European Court of Human Rights considered these towards constitutional justice. and contrasts the development of the ECtHR and the circumstances in Bayatyan v. Armenia (2011) and in- UNHRC jurisprudence related to conscientious objec- corporated the right to conscientious objection within Participants Fritz Edward Siregar tion and military service based on the theoretical con- the framework of Article 9 of the Convention (freedom Feri Amsari cept of ordered pluralism (pluralisme ordonné). Tania of thought conscience and religion). The literature Donal Fariz Pagotto considers cases of conscientious objection perceives the debate on military service well-defined Iwan Satriawan related to sexual orientation and medical treatment. by the European jurisprudence, even though in a few Luthfi Widagdo Eddyono Adopting a comparative legal view, she highlights the Countries it is still a sore point. By contrast, the legal Veri Junaedi factors taken into account by the Courts in order to reflection on conscientious objection linked to other Moderator Fritz Edward Siregar extend or not the legal boundaries of the objection. themes is still very much open for the discussion. In- Room 8A-4-17 Lisa Harms examines the previously analysed legal dividuals indeed require the Courts to accommodate developments through a sociological lens and sheds their conscience claims and recognize, for example, light on how secular and faith-based advocacy groups the right to abstain from the solemnization of homo- Fritz Edward Siregar: Does Indonesian Constitu- negotiate the right to conscientious objection along sexual marriages performance of abortive practices tional Court have authority to issue conditional new lines of contention. and other ethical and bioethical issues. The paper constitutional decision? therefore will take into account these recent devel- Since its establishment, the Indonesian Constitu- Participants Fabienne Bretscher opments and analyse them under a comparative legal tional Court has had the capacity to issue three forms Tania Pagotto perspective including the ECtHR jurisprudence. It will of conditionally constitutional decisions. One form oc- Lisa Harms try to enucleate which conditions the Courts consider curs when the Court states that the law in question is Stefan Schlegel in their analysis in order to extend or not the legal pro- constitutional but only if it is interpreted in the way the Moderator Stefan Schlegel tection to “new” cases of conscientious objections. Court interprets it. The second form occurs when the Room 8B-3-52 Court issues a conditionally constitutional or condition- Lisa Harms: From Armenia to South Korea and ally unconstitutional decision by inserting a new word from gay marriage to hunting: Faith-based ad- into the law (‘reading in’). The third form of conditionally Fabienne Bretscher: The ECtHR’s and the vocacy groups litigating the right to freedom of constitutional decision declares the law unconstitu- UNHRC’s case law on conscientious objection: conscience in transnational courts tional and then provides a period during which the deci- A process of integration? Until recently, claims of conscientious objec- sion should be enforced, giving the President and the International human rights bodies have been tion have been rather unsuccessful at the European Parliament time to amend the existing law according dealing with complaints of conscientious objectors Court of Human Rights. After the failure of initial cases to the Court’s interpretation (‘suspension of invalidity’). to military and civil service for several decades. Yet, brought by religious actors in the early 1990s, the topic The main purpose of this paper is to investigate the the European Court of Human Rights (ECtHR), respec- only emerged occasionally without triggering much practical operation of conditionally constitutional deci- tively the European Commission of Human Rights debate. With the beginning of the current decade, sions so as to assess their impact on the separation of (EComHR), and the United Nations Human Rights however, judicial framings in terms of conscientious powers in Indonesia. Do these decisions in fact give the Committee (UNHRC) initially chose a very much differ- objection gained in prominence in particular for re- Court a role in policy-making beyond that which was ent approach to the issue: While the EComHR and the ligiously motivated claims of exemption. How can originally envisaged during the constitutional amend- ECtHR found the right to freedom of religion granted we explain this new tendency within the supervision ment process, or is the legislature’s attempt to rein in not to be applicable to conscientious objectors, the operated by the ECtHR of the rights and freedoms this aspect of the Court’s work an interference with its UNHRC, contradicting the ECtHR’s and the EComHR’s enshrined in the Convention? This paper suggests that independence, as the Court alleges? approach at that time, recognised a right to conscien- ECtHR case-law and its outcome are not only the result tious objection first in a General Comment and then in of judicial and political mechanisms but rather reflect Feri Amsari: Manipulating the Gavel: Regulate individual complaints. In 2011 then, in the well-known the influence of a complex social field of related, allied, Constitutional Justices Grand Chamber decision of Bayatyan v. Armenia, the and opposed actors, strategically litigating the right Three constitutional court juctices had been em- ECtHR reversed its standing case law and recognised to freedom of religion and conscience. The discus- broiled in manipulating cases in which two of them a right to conscientious objection. This paper inquires sion of the concept of conscientious objection thus had arrested by Corruption Eradication Commission.

Concurring panels 160 Concurring panels 161 Those three cases are allegedly related to judicial re- Both internal regulations should be more account- 93 I nstitutions of the rule institutional choice: Who should do what in European view and election resput dispute authority. Constitu- able and impartial by creating a more accountable of law: new balance or and international law? While ideas of the separation tional court procedural law did not limit and provide nu- mechanism of the trial. Second, there is also a need to new powers? Panel II: of power face an uphill battle in the variegated insti- merous possibility for justices in providing the verdicts. assert clearly the authority of Judicial Commission to Transnational balance of tutional settings at the European and even more so Manipulating cases can be detected from submitting supervise the constitutional justices through amend- powers international level, the core normative programme em- the application up to the Court rendered its decision. ment of the Indonesian Constitution. Having better bedded in this idea offers traction. The contribution This manipulation occured because there is no com- internal and external supervision of it is expected that At the core of the current rule of law crisis is a prob- offers the idea of relative authority as a core part of an mitment towards constitutional court procedural law. the integrity of the constitutional justices would be lem of concentration of power, or conversely, a lack argumentative framework to critique and help justify It takes too much time and phases on several cases more guaranteed. of separation of powers. This shows the failure of the exercise of supra- and international public authority. that potentially can be used to manipulate the case. classic trias politica: a constitution with a formal This paper explore three fact. First, how manipulation Luthfi Widagdo Eddyono: Mixing Support of Po- separation between three branches of government Lando Kirchmair: What Is Transnational Balance of a verdict and court procedure had been occured. litical Parties Towards Judicial Independence of is not enough to safeguard the rule of law. The central Of Power And How To Achieve It? Second, which cases in Court’s docet that potentially Indonesia Constitutional Court question we seek to answer is whether new powers This article argues that an understanding of manipulated. Third, the solution to hinder this practice. This paper will examine the dynamics of the in- or a new balance between rule of law institutions can transnational balance of power is essential for deal- dependence of Indonesian Constitutional Court. The be identified in constitutional democracies. Starting ing with outsourcing (elements of) balance of power Donal Fariz: The Puzzle of Constitutional Jus- amendments of the Indonesian Constitution did not point for these two panels is the core of the doctrine: from national legal orders. The same holds true for tice Selection Process only created the Constitutional Court and Judicial there should not be concentration of the powers to analyzing the scope and mandate of transnational When Chief Justice Akil Mochtar was arrested by Commission. Most importantly, the amended provided regulate to enforce and to review. Panel 2 will discuss actors acting on behalf of a transnational balance Corruption Eradication Commission in 2013, Indonesia and guaranteed the principle of checks and balances the promises and pitfalls of involving transnational of power. This need for a concept of a transnational Constitutional Court did not collapse and able regain among state institutions. The role of the judiciary as actors in the balance of powers. All three government balance of power faces, however, the challenge its strength. However, almost three years later, Jus- an independent institution to manage the check and powers may be transferred to the international level: that balance of power differs greatly in extent and tice Patrialis Akbar had been arrested for accepting balance is a crucial factor to be supported by other in- transnational regulation replaces legislation, UN content depending on the national legal order. This a bribe. Those two Justices has their similarity, which stitutions. This paper attempt to answer two research bodies perform national administrative tasks such article, hence, aims at mapping the fundament of is both of them were a former politician. Mocthar was questions. First, what are political factors that support as the determination of refugee status, international transnational balance of power. While this is already Golkar Party’s members, and, on the other hand, Akbar and undermine the independence of the Court? Sec- courts, e.g. the European of Court of Human Rights, quite daring, it is – despite its title – not as bold as was National Mandate Party leader. Both of them had ond, what is the judicial accountability that needs to review national legislation. Is it possible to outsource aiming to present already a final definition. What we served as the member for Indonesia National Par- be imposed by reviewing Court’s performance since one power, yet keeping that power in check by do- need is to work out criteria embracing the diversity liament. The arrest of two constitutional justice that 2003 ? The outcome of this paper will enrich discus- mestic counterpowers? The focus of the panel will of national legal orders and their diverging concepts. has similar background, lead public seen the Court as sions of the explanatory factors that shape the dynam- be on the scope and mandate of such actors and on These criteria need to be abstract enough in order another institution that had been filled by people that ics of the independence of the constitutional court the relationship to the domestic branches of gov- to comprise plurality and diversity of national legal have the corrupt mentality. Until today, former politician in newly democratic countries as argued by Samuel ernment. orders. Imagine only that by far not all legal orders has been named and nominate to the various govern- Issacharoff. The research also concludes that there is do have a constitutional court despite of having a ing officer, including constitutional justice. In this paper, a new model that need to be developed to identify what Participants Ingo Venzke and sophisticated balance of power. Nevertheless, such I will provide the argument why political parties have is the degree of judicial independence that Indonesia Joana Mendes criteria must be concrete enough to deliver results: interested to became constitutional justice. Through Constitutional Court should enforce. Lando Kirchmair the transnational balance of power must not be a existing selection process, political parties success Thomas Riesthuis vague and nebulous concept, falling short of deliv- to nominate “their agent” to became constitutional Veri Junaedi: Performance Review Report of In- Cormac Mac Amhlaigh ering meaningful results when tested in a particular justice. As the consequences, it is damaging court donesian Constitutional Court (2003-2016) Jan Klabbers case. Otherwise, we risk being arbitrary. reputation and court judicial legitimacy has been ques- Constitution and Democratic Initiative conducted Moderator Thomas Riesthuis and tioned. The ongoing selection process did not protect performance review towards Indonesian Constitu- Sanne Taekema Thomas Riesthuis: International Courts as Ac- the Court from the corruptive figure, and new judiciary tional Court’s decision since 2003-2016. Since es- Room 8A-4-35 tors in a Transnational Balance of Powers selection needs to be identified. tablished in August 2003 until December 2016 the International courts are generally understood to Court had issued 861’s decision. The enthusiasm of function outside of the balance of powers of domestic Iwan Satriawan: Strengthening the Supervision the public come to the Court and file judicial review Ingo Venzke and Joana Mendes: The Idea of constitutional legal systems. Although significantly of the Constitutional Justices in Indonesia petition had been increased over time. On one hand, Relative Authority in European and Interna- influential in domestic legal systems, international Existing research argues that the declining of the it portraits public support towards the Court. However, tional Law courts are not considered actors in the balance of constitutional justices’ integrity is rooted due to lack of a performance review is required in order to challenge The present contribution reacts to concerns about powers. In this paper, I unpack the theoretical assump- supervision of the constitutional justices. It is believed whether public expectations public in line with the the legitimacy of supra- and international public au- tions underlying the idea that international courts are that with a huge authority and at the same time the intent of the establishment of the Court. The method thority by introducing the idea of relative authority. to be considered external to domestic constitutional Constitutional Justices do not have strong supervision, used in this study using a quantitative approach. Each It argues that public authority is relative, first, in the legal systems. It will challenge a common positivist the integrity of the constitutional justices has put at decision shall be classified, such as a category of le- sense that the exercise of authority by one actor al- conception of the balance of powers that excludes stake. The Court actually has an Ethics Board and the gal standing, the length of examination and landmark ways stands in relation to others and second, that the transnational actors, such as, for example, interna- Honorary Council of Constitutional Justices which are decision. Analyze towards that classification shall be division of authority should be informed by the legiti- tional courts. Moreover, I will develop a non-positivist an internal supervision of constitutional justices and provided to inform the trend of Court’s decision. macy assets that different actors can bring into the conception of the balance of powers that includes the staffs. However, the internal supervision does not governance process. It develops an argument in favour transnational judicial actors based on the work of work effectively. This paper recommends two argu- of a specific, articulated division of public authority. Ronald Dworkin and Philip Selznick. It will be argued ments. First, there is a need to reform internal regu- Like other legal approaches to global governance it that the European Court of Justice and the European lations of the Court, particularly on the Ethics Board is inspired by domestic legal theory and thinking. It Court of Human Rights are best understood as judicial and the Honorary Council of Constitutional Justices. distinguishes itself through its focus on questions of actors in a transnational balance of powers.

Concurring panels 162 Concurring panels 163 Cormac Mac Amhlaigh: Transnational Legiti- 94 National constitutional Democracy”’ disagrees with Jan Komarek’s account 95 rIghts, Security and the Policy macy in a Populist Age courts and European of the current state of the ‘European Constitutional Process: The Consideration Populism is not new. Neither is the tendency for integration Democracy’ on three grounds. First, we question his of Rights in the Development populist parties to denigrate elites and elite institu- hypothesis that the displacement of national constitu- of Counter-Terrorism Policy tions. Caught within this tendency to denigrate all National constitutional courts have always played an tional courts was caused by the so-called ‘rights revo- things elite is, of course, the regular trashing of the ambivalent role in the process of European integra- lution’ in the aftermath of the Charter of Fundamental This Panel explores the question of whether and how structures and values of constitutional politics includ- tion. On the one hand, they have by and large engaged Rights of the EU (‘CFREU’) becoming legally binding. rights are considered in the process of policy mak- ing abstract ideas such as the rule of law, separation constructively with the European Court of Justice and Second, albeit agreeing with Jan Komarek’s finding ing in the particular context of counter-terrorism. This of powers or the independence of the judiciary as well recognized its doctrines on the status and operational that the institutional balance between the EU judi- question will be explored from a comparative perspec- as specific attacks against institutions charged with qualities of Union law. On the other, their posture towards cator and legislator differs substantially from that of tive through two case studies (Germany and Israel) up-holding these ideas, usually Courts. (Möller 2016) EU law has been occasionally critical, when Union law national constitutional democracies, we find his con- analyzing a recent process of developing a particular When populism reigns constitutions, constitutional threatened to undermine its competence, limits and tention that the communicative link between the CJEU counter-terrorism policy. Relying on both open ma- ideas and constitutional courts rarely come out of it domestic constitutional identities. The panel discusses and the political and public sphere at the EU level is terials as well as interviews with various actors, the well. The fragility of multi-level governance systems the value, role and place of national constitutional courts ‘broken’ too stringent. Finally, we also harbour doubts case studies attempt to describe who raised these is thrown into sharp relief during periods of populist in the process of European integration on the basis of about Jan Komarek’s claim that the CJEU is biased considerations, at what stage and as part of which rule. They tend to share the abuse suffered by do- Jan Komarek’s article “National constitutional courts in in favour of private autonomy and to the detriment of process, as well as the substantive aspect of the actual mestic elite institutions with the distinction that the the European constitutional democracy”. The discus- public autonomy. Not only do we take issue with his weighing of rights considerations. The goal of each abuse tends to be magnified manifold. As such not sion will focus on the following issues: 1) The causes distinction between private and public autonomy from case study is to locate the factors and processes that only are they elite institutions, upholding elitist values and implications of the displacement of constitutional a conceptual point of view, but, we also argue that the had a positive effect on the consideration of rights as but, worse, they are the ‘other’ – foreign courts, foreign courts determined by the Simmenthal doctrine 2) the alleged private autonomy bias of the Court of Justice opposed to those which had negative effects. The elites with foreign values with no legitimate claim to extent of displacement and the actual opportunities cannot be unequivocally supported by empirical evi- juxtaposition of the case studies provides the op- rule over ‘us’. for constitutional courts to participate in supranational dence, as the Court’s case law is often grounded in portunity to draw broader conclusions regarding the litigation 3) the possibility to reconcile public and private considerations of European public autonomy. question of the optimal consideration of rights in the Jan Klabbers: Discussant autonomy in the current European judicial architecture. policy process. Jan Komárek: Reconsidering the place of con- Participants Marco Dani stitutional courts in European integration Participants Andrej Lang Sabine Mair and In the paper I will provide a response to two critical Fiona de Londras Elias Deutscher reactions to my original paper “National constitutional Lila Margalit Jan Komárek courts in the European constitutional democracy”. Mattias Kumm Moderator Christoph Möllers While I am happy to concede, to some extent, the Rebecca Ananian-Welsh Room 8A-4-47 point concerning the “Rights Revolution”, I will seek Moderator Andrej Lang to explain why it is difficult for the ECJ to escape the Room 8B-4-03 constraints of the EU’s economic constitution and to Marco Dani: Coping with the displacement of develop a true equivalent to the liberal democracy national constitutional courts in supranational existing at the national level. The question I would like Andrej Lang: Rights Considerations in the Leg- litigation to further raise concerns the very value of the latter islative Process in Germany The paper argues that the relative value of national in the light of the growing disabling of democracy at My paper analyzes the consideration of rights in constitutional courts resulting from the Simmenthal both levels. the development of terrorism policy in the legislative doctrine is coherent with a pan-European institutional process in Germany based on two case studies: the setting relying on the synergy between supranational Counter-Terrorism Database Act and the Data Reten- law and national constitutional democracies. It sug- tion Act, which were both subject to judicial review by gests that concern for their displacement is more the Federal Constitutional Court. The paper explores justified with a view to the expansion of EU compe- which institutional actors in the ministerial bureaucracy tences and their inbuilt policy agenda than with the and in parliament were involved at which stage in the rise of fundamental rights adjudication. It concludes process and how rights considerations were framed by observing that in an institutional framework where therein. The analysis reveals the dominance of gov- constitutional democracies are subject to the risk of ernment over the legislative process, the substantial intergovernmental and technocratic encroachment role of legal experts, the extensive judicialization of constitutional courts are still in the position to influ- the political process and the inherent limits, but also ence from the margins supranational litigation by prospects, of rights review by non-judicial institutions. voicing the normative claims associated with national constitutional democracies. Fiona de Londras: Proportionality and the Mak- ing of the EU Counter-Terrorism Directive Sabine Mair and Elias Deutscher: A la recherché Having had no counter-terrorism law on 11 Septem- du temps perdu: Reinforcing national consti- ber 2001, the EU now has hundreds of pieces of coun- tutional courts to save national and European ter-terrorism law and policy, with implications across constitutional democracies? the 28 member states. In the wake of the Paris attacks Our paper ‘A response to Jan Komarek’s “National in 2015, a comprehensive EU Counter-Terrorism Direc- Constitutional Courts in the European Constitutional tive was proposed the final text of which has recently

Concurring panels 164 Concurring panels 165 been agreed. However, the Directive is controversial, 96 Sc ience and Law before Simone Penasa and Elisabetta Pulice: Towards scientific basis of the authorisation decision? Do the not only because of its content, but because of the the Courts. A comparative a “scientific question” doctrine? A comparative limits to the review affect the Courts’ duty to establish speed and opacity with which it was drafted. This paper overview. survey of national approaches to the judicial whether the evidence relied on is factually accurate, focuses on those questions of process. It uses exten- review of laws regulating science reliable and consistent? sive empirical research to trace the provenance of the The Panel will provide a comparative survey of the ap- Scientific data and expertise are becoming more Directive, the policy-making, and the finalization of the proaches that national, international and supranational and more a relevant issue within the judicial review Andrea Rovagnati: Experimentation on Humans: Directive arguing that this process sheds doubt on the courts are implementing when coming to assess le- of legislation in the field of biomedicine. When a law Who Decides What? extent to which proportionality in terms of rights was gitimacy of laws and acts regulating medical activi- regulating medical or scientific activity comes before a In my paper I will offer a brief reflection on the taken seriously in the making of the EUDCT. ties and scientific issues. Regulation of scientific and Supreme or Constitutional Court the approach imple- threats posed to human reason and liberty by certain technological innovation has become a particularly mented by the latter in assessing the legitimacy of ways in which European Courts have determined the Lila Margalit: Rights Considerations in the Pol- challenging context in which the “traditional” tension laws seems to be conditioned by the ethical sensitive- biological and moral status of human embryos. First I icy Process: The Case of the Israeli Combating between legislative and judicial power achieves the ness and scientific complexity of the issues at stake. will provide a description of recent decisions on issues Terror Law most sensitive and relevant level. By analysing dif- The paper will analyse the case-law characterising related to experimentation on human embryos, deci- This case study focuses on the role played by rights ferent jurisdictions – at the national international and different national jurisdictions within the European sions made by two European super-national Courts, considerations during the initiation shaping and ap- European level – the Panel will aim to detect the exis- framework, in order to provide for a classification of namely the European Court of Human Rights and the proval of the 2016 Israeli Combating Terror Law, a tence of common lines of reasoning between them: the different approaches and methods national Courts European Union Court of Justice. Second, I will briefly comprehensive piece of legislation granting the gov- Is it possible to propose the existence of a common usually implement for assessing legislation in the bio- illustrate the erroneous response of those Courts to ernment broad powers with significant human rights frame of scrutiny in the field of regulation of science? medical field. Central issue will be the comparative the question about the biological nature of human implications. The study describes and then analyzes analysis of the role played by scientific dimension embryos, and its negative effect not only on human the way in which rights and questions of proportionality Participants Lucia Busatta and within the Courts’ reasoning. The paper will specifi- embryos but on all human beings. Then I will illustrate were conceived and articulated by decision-makers Marta Tomasi cally address the effect of the scientific dimension as how the legitimization of the use of human embryos throughout the process; the dynamics through which Simone Penasa and well as its interplay with other dimensions (e.g. social, in research activities presents a danger to European they were raised and deliberated; and the impact they Elisabetta Pulice ethical, economical) on the attitude – towards a more constitutionalism, because it undermines one of its ultimately had. Tracing the development of the law Giada Ragone restraint or active approach – of Courts when com- postulates, that is the idea that rights of equal justice from the internal government deliberations through Andrea Rovagnati ing to assess legislature’s discretionary power in the are due to each and all human beings. Finally, I will the public hearings in the Israeli parliament, the study Benedetta Vimercati regulation of science. conclude by suggesting the necessity for the Courts identifies significant constraints upon the effective Lorenza Violini to go beyond laboratorial spaces and logics for grasp- consideration of rights in the process while at the Moderator Lorenza Violini Giada Ragone: Scientific assessments and lim- ing that ultimate dimension of human beings, which is same time identifying factors which facilitated rights- Room 8B-4-09 its to the review by the Courts of the European different from the biological one and it is actually the based changes in the law. Union: the GMO case one conferring them dignity and liberty. It is settled case-law that where a EU institution is Mattias Kumm: Commentator Lucia Busatta and Marta Tomasi: BioLaw and called upon to make complex assessments, it enjoys Benedetta Vimercati: Science, patient autono- the ECtHR: between political discretion and ju- a wide measure of discretion, the exercise of which is my and end-of-life decisions across Courts and Rebecca Ananian-Welsh: Commentator dicial scrutiny subject to a judicial review restricted to verifying that Legislators: treading a fine line In the specific area of BioLaw, the analysis of the the measure in question is not vitiated by a manifest The scientific progress in medical care is strictly case law of the European Court of Human Rights al- error or a misuse of powers, and that the compe- intertwined with the delicate subject of the end of life lows to reflect on the difficult relationship between tent authority did not clearly exceed the bounds of where medical/technical decisions deal with moral the extension of the political discretion of the law- its discretion. According to the UE jurisprudence, ethical and legal aspects. Scientific advances inter- maker and the intensity of the scrutiny the Court can in order to ascertain if the measure is vitiated by a fere with death, a purely natural process traditionally exercise on national decisions affecting human rights manifest error, the Courts are tasked to do a review excluded from the juridical – political space. However, and ethically sensitive topics. Beyond the incidence of “plausibility”, in which the evidence adduced by death has become a relevant issue for debate in a of moral values, there is one more aspect that often the applicant must be sufficient to make the factual legal perspective: the capability to prolong or sustain recurs in the Court’s case law. This is represented by assessments used in the act implausible. Indeed, it human life through medical technologies has influ- the scientific and technological factor, as one of the is not the Courts’ role to substitute their assessments enced legal response in order to protect and improve possible instruments to measure national decisions. of complex facts for that made by the institutions decision-making autonomy. Hence, given the impor- With regards to both of these elements, the ECtHR which adopted the decision. In recent years, several tance placed upon the claim of the patients’ right to across the years elaborated the doctrine of the mar- cases have been brought before the Courts of the control their own treatments, judges and legislators gin of appreciation, which serves as a boundary line to European Union, challenging the authorizations to are dealing with various dilemmas. Among them, we define the extension of states’ discretion in regulat- cultivation or commercialization of GMO products. can count the several alternative definitions for death; ing matters relevant to the field of BioLaw, such as As well known, the scientific assessments on this the distinction between the different forms of reduced abortion, artificial reproduction techniques, end of life kind of products are often controversial and based consciousness or conditions of severe immobility; issues, etc. The aim of this presentation is to give a on complex technical knowledge. The paper aims the lack of consensus on futile medical care or, finally, comprehensive view on the attitude and instruments to point out how the abovementioned limits to the the classification of artificial nutrition and hydration that the Court applies in this field of law (margin of review by the Courts of the European Union operate as medical treatments or life-sustaining measures. appreciation, consensus among contracting parties, in cases challenging GMOs’ authorizations. Is judicial These are important subjects of debate in all parts of internal coherence of legal orders), in order to verify review limited to manifest errors of assessment that the world as well as recently in the Italian legal sys- whether it could be argued that a “conventional” set are so serious that even a non-scientist can easily tem where the Italian Parliament has resumed debate of bio-rights is currently emerging in the case law detect and correctly identify them? Is a “plausibility” upon the end-of-life decisions’ bill. The present paper of the Court. review possible without giving rise to a review of the aims to provide some reflections on the relationship

Concurring panels 166 Concurring panels 167 between the patient’s autonomy and scientific data 97 Se arching for the Giacomo Delledonne: Article 2 TEU: European and claim that these decisions share a common mis- concerning medical treatment, but also between sci- constitutional identity Values and Constitutional Identity of the EU. understanding of the influential BVerfG case law on ence, political discretion and judicial scrutiny. How has within EU: beyond Courts’ Overlaps and Distinctions methods of constitutional review of EU law. The paper scientific evidence been taken into account by the interpretation This paper aims at building on the achievements of will argue that these methods only apparently aimed Italian courts in solving cases related with withholding the debate about the founding values of the European at acting as swords against EU law, whereas prac- and withdrawing of medical treatment? Does a sup- In the recent time identity of the constitutional order Union in order to make some points regarding the tically they served as shields (Konstadinides 2010) posed right to enjoy benefits of the scientific progress has become a challenged topic within the European constitutional identity of the Union itself. Respect of to protect constitutional identity against undesired entail the recognition as a fundamental right of every space both in respect of its subjective sense of self- national identities, including constitutional identities, developments of EU law. possibility offered by the scientific progress? To which ness of a member state vis-á-vis others and regarding has been entrenched at Art. 4 TEU by the Lisbon Treaty. extent constitutional provisions may be interpreted the construction of a European Constitutional identity. In more general terms identity – a two-sided notion in Marco Bassini: From Melloni to Taricco passing to accommodate the scientific development? When The panel invites scholars to discuss the ambivalent which introverted and extroverted features always co- through Fransson: higher standard of protec- scientific data are disputable, what should be the best meaning of constitutional identity focusing, firstly, on exist – has been one of the leading concepts in law and tion and constitutional identity judicial practice? Does scientific evolution require the how European constitutional identity relates to the political theory in the last two decades. The goal of this The recent order taken by the Italian Constitutional adoption of specific types of legal intervention (politi- specific constitutional identities of European nation- paper is to apply the constitutional identity language Court referring a preliminary question to the Court of cal, technical, judicial, etc.)? states and the implications for the division of author- with regard to the EU legal system. At first sight, this at- Justice of the European Union in the Taricco saga has ity between the European and national levels within tempt might look very promising, as the self-definition marked an interesting point that provides room for Lorenza Violini: Chairman – Discussant the EU. Secondly, the panel offers the opportunity to of the then Communities as an order based on the revisiting, to a certain degree, the inheritance of the discover to what extend the constitutional identity be- rule of law has traditionally lain at the heart of the su- Melloni case. One of the possible objections against came the explicit arena of disputes between Courts, pranational constitutionalisation process. In order to the enforcement of the counter-limits doctrine, in fact, and how its definition goes beyond their interpretation. address the issue of the constitutional identity of the could lie with the case law of the Court of Justice in the EU, the paper will adopt a multi-perspective approach. Melloni and Fransson cases: these judgments prevent Participants Tímea Drinóczi The paper will mainly – but not exclusively – consider Member States from affording fundamental rights a Giacomo Delledonne the discussion about (and the problems arising from) greater protection than that deriving from EU law when Pietro Faraguna Articles 2 and 7 TEU: in particular the autonomy of the the operation of the domestic standard may under- Marco Bassini values mentioned at Art. 2 TEU as well as their possible mine the primacy, unity, and effectiveness of EU law. Neliana Rodean shortcoming will be highlighted. Moreover, the paper The Italian Constitutional Court has pointed out that Moderator Neliana Rodean will consider the emergence of an untouchable core of the in Melloni it was questioned whether the domes- Room 8B-4-19 supranational constitutional law in the Kadi judgments tic legislation was compatible with EU law as far as it (relations between the EU and the international order) introduced additional requirements for the execution and the substantial requirements with which European of an European arrest warrant. According to the Italian Tímea Drinóczi: Theorizing the legal concept political parties have to comply in order to be financed Constitutional Court, in that case a different decision of constitutional identity in the European legal (in the political sphere of representative democracy). by the Court of Justice would have compromised the sphere In spite of the overlaps among these dimensions, the unity of EU law while, on the contrary, the primacy of The paper presents what interpretations the defi- paper will also underline the subtle nuances which EU law is not called into question in Taricco: the ruling nition of constitutional identity may have from a legal make distinction possible and make for the constitu- of the Court of Justice is not challenged but rather perspective. Compared to the theories of Jacobsohn tional identity of the European Union. the Italian Constitutional Court aims at exploring the and Rosenfeld, constitutional identity appears in the Eu- existence of a constitutionally mandated obstacle to ropean integration in a different relation, and it is looking Pietro Faraguna: Constitutional identity 2.0: the enforcement of the same. Against this background, to answer that the question: which are the elements of Member States lay down the shield and take up it should be questioned whether the protection of do- the constitutional identity of a Member State that the EU the sword mestic constitutional identity, to the extent it results in must respect. These can develop as a result of dialogue Only recently constitutional identity became the a more extensive or even restrictive understanding of between the CJEU and the national constitutional courts explicit battleground of disputes between the CJEU fundamental rights, is likely to have a different impact at a slow pace. Based on different doctrinal positions and national Constitutional and Supreme Courts. on the safeguard of the primacy, unity, and effective- and the European case laws on constitutional identity, This trend emerged very clearly between the end of ness of EU law and whether this outcome may be de- this paper offers a constitutional law based understand- 2016 and the beginning of 2017. In less than a month, sirable according to the Court of Justice. ing of constitutional identity. It also argues in which con- the Hungarian Constitutional Court issued a Euro- stitutional identity should be conceived as the identity parechtsunfreundlich decision (22/2016 (XII. 5.) AB) Neliana Rodean: Between cooperation and re- of the constitution, as a legal notion that can be invoked developing a fundamental rights review and an ultra sistance: new challenges for the constitutional in legal proceedings. The concept named as constitu- vires review, the latter composed of a sovereignty re- identity in East Europe tional identity has three different but interconnected view and an identity review; the Danish Supreme Court Considering that the foundation for a constitu- layers which can be called national identity, the identity ruled a CJEU decision as ultra vires (SCDK Case no. tional identity can be found in the Constitution and a of the constitution that can be used against EU legisla- 15/2014 Dansk Industri); and the Italian Constitutional Constitution acquires an identity through experience, tion, and the identity of the constitution which limits the Court submitted a new reference for preliminary rul- this paper will discuss the search for the constitu- formal constitution-amending power. Reference to and ing in the Taricco case, alleging a possible violation tional identity of some East-European States (Poland, application of the identity of the constitution occurs in of Italian constitutional identity (ICC order 24/2017). Croatia, Romania, and Hungary). First of all, the paper practice in relation to the boundaries of EU law and the Although each of these cases is different from each analyzes those higher values of the Fundamental Laws, unconstitutional constitutional amendments. However, other, they seem to reveal a new trend in the national which represent the ground of interpretation, and the while in the former case the reference is an explicit one, constitutional and supreme courts’ use of constitu- case law of Constitutional Courts. Among former com- it is not in the case of formal constitutional amendments. tional identity. The paper will explore this new trend munist states, this argument is still uncertain and more

Concurring panels 168 Concurring panels 169 linked to the national approaches in the light of EU 98 Sol ar Panel: National ing ‘force’ rests on the extent to which it has social measures in response to the crisis and the provision integration. Moreover, in the case-studies reference Adjudication and legitimacy that is accepted by those using it. Based of financial assistance. EU institutions also became to constitutional identity has appeared and discussed Transnational Soft Law: on a survey conducted among the selected national involved in those processes, despite the absence of recently and it seems that some sort of constitutional Judges in a non-binding judges in the autumn 2016, this paper presents the a regulatory and procedural framework. As a result, identity is emerging in these countries. Grasping its environment first empirical findings concerning the use of Water unprecedented measures, such as the bail-in of Cy- main elements and summarizing leading cases in Framework Directive guidance documents in national priot banks and cuts in benefits in several member these East-European States serve well to illustrate Soft law is present in nearly every EU policy. The term courts. The results show that the status and legal ef- states, reached the public domain in the form of inter this point. On the other side, the paper provides ar- captures a multitude of instruments that are not legally fects of non-binding guidance for national courts are alia, Conclusions and Memoranda of Understanding guments and justifications over sincere cooperation binding but which produce legal effects. While it is not clear, and there is a diversity of approaches to their (MoUs), whose legal relevance was unclear. The aim of when the constitutional values prevail, and stresses generally acknowledged that soft law is an essential binding value, creating much uncertainty amongst the paper is to examine the elements that would ren- the new tendency in the Courts’ interpretation. tool of EU policy-making, difficult questions concern national courts and administrations and ultimately der soft law instruments mandatory, or cause them to its nature and effects. With most of the research fo- putting the idea of a uniform application of EU law into be perceived as such in the areas of monetary policy cusing on the EU level, there is little analysis of EU soft doubt. In light of the answers of the survey, the paper and economic governance, in the light of the recent law in Member States. This is problematic for many concludes by trying to provide a coherent framework euro crisis litigation before national and EU courts. It reasons. First, the uncertainty surrounding EU soft for evaluating soft law in the national setting taking contributes to the literature by introducing analytical law in national settings can endanger the principles into account both normative and social legitimacy tools for distinguishing acts having legal effects from of legal certainty, transparency, and legality. Second, aspects. those that are intended purely for information or other ambiguity negatively affects the implementation and non-binding purposes in these policy areas. As far as enforcement of EU law, if national judges, who are the Kathryn Wright: Shared Judicial Control for a monetary policy is concerned, the paper discusses key actors interpreting soft law instruments, are unsure Shared Administration? National Courts and the ECB press releases and public announcements. if and how to apply soft law. Third, soft law may also European Regulatory Networks It first presents a critical analysis of the Gauweiler have positive effects, but its potential to contribute This paper considers the role of courts in EU regu- (Case C-62/14 Gauweiler v Deutsche Bundestag) to legitimate governance remains unexplored. The latory governance, focusing on networks of regulators litigation pertaining to the ECB’s OMT program and proposed panel brings together scholars research- and agencies in economic regulation. The creation unfolds the constitutional tensions between the ECJ ing soft law in order to determine whether and how of European agencies with legal personality in theory and the German Constitutional Court. Second, it en- soft law is received and used by national courts. The allows for greater judicial scrutiny at the EU level. How- gages with General Court’s reasoning pertaining to empirical focus is on three policy fields: competition ever, legal accountability gaps remain, deriving from the reviewability of the ECB’s Eurosystem Oversight law, environmental law, and financial regulation. This prominent features of European regulatory networks: Policy Framework regarding the location of central panel is organised by the Commission funded Jean shared administration and soft law rule-making. While counterparty clearing systems (Case T-496/11 United Monnet Network “European Network on Soft Law Re- the legal literature tends to concentrate on the EU Kingdom v ECB). Moving on to economic governance, search” (SoLaR). courts, the contribution of this paper is to examine this paper examines the output of two dominant insti- the role(s) for national courts in the context of these tutional players, namely the ESM and the Eurogroup. Participants Emilia Korkea-aho and regulatory networks. National regulatory authorities First, it discusses the legal relevance of the Euro- Mariolina Eliantonio have ‘soft’ obligations towards the European agency, group Statements with reference to the recent ECJ Kathryn Wright such as ‘comply or explain’ or the duty to take ‘ut- judgments on the bail-in that applied in the Cypriot Napoleon Xanthoulis most account’ of recommendations. This raises the banking sector (Joint Cases C-8/15 to C-10/15 Mallis Zlatina Georgieva question of how national courts might deal with EU and Malli et al v ECB and Commission). Second, it en- Moderator Emilia Korkea-aho and recommendations when reviewing national regula- gages with the reviewability of the MoUs that contain Mariolina Eliantonio tors, in addition to their own duty to take account of the macroeconomic conditionality accompanying the Room 8B-4-33 such sources. After noting indications from national ESM’s financial assistance to the respective member courts’ practice, the paper makes suggestions for an state in need. The significance of the MoU lies in that enhanced role based on the traditional channel of the it is adopted within an institutional context governed Emilia Korkea-aho and Mariolina Eliantonio: The preliminary reference procedure together with more by international law on the one hand, yet with the ac- Legitimacy of EU Soft Law through the Eyes of innovative horizontal coordination. tive involvement of Union institutions on the other. National Courts: a Survey on the Water Frame- To this effect, the paper draws a comparative analy- work Directive guidance documents Napoleon Xanthoulis: Soft law instruments in sis between the approach endorsed by the Greek Soft law has long constituted an important part of the EMU and their impact on liability: Judicial Council of State in respect of the Greek MoU and the the EU legal order, complementing and augmenting dialogue in times of (euro) crisis conflicting views that identified in Ledra Advertising, the legislative framework. Its legitimacy and effective- When the global financial and economic crisis hit a case pertaining to the Cypriot financial assistance ness to fulfil the expectations laid on it are often as- Europe, the Eurozone lacked a robust normative and programme (Joint Cases C-8/15 P to C-10/15 P Ledra sumed and not studied, and many basic questions still institutional framework for addressing such circum- Advertising et al v ECB and Commission). The paper remain unanswered. One remarkable gap concerns stances. Under the threat of insolvency of certain Eu- concludes by discussing the impact of such soft law Member States, as much of soft law’s promise to fill rozone members, the ECB announced its intention to instruments on the accountability of the various ac- gaps and unify practice is dependent on the national implement non-standard monetary policy measures tors involved. It suggests that, as a result, the liability courts’ willingness to use soft law. Do national judi- towards calming the markets and securing the supply in this context becomes blurred both vertically, be- ciaries know EU soft law? Do they use it in deciding of liquidity in the euro area. In parallel, member states tween the national and supranational actors as well cases? How do national approaches towards soft law used sui generis decision-making fora such as the as horizontally, between EU law and international law influence the use of soft law by national judges? Pro- Euro Group, the Euro Summit and the European Stabil- entities respectively. vided that soft law is non-binding guidance, its guid- ity Mechanism (ESM) for negotiating the appropriate

Concurring panels 170 Concurring panels 171 Zlatina Georgieva: Commission-issued Compe- 99 S pecialist Patent Courts: human rights system, and the national legal systems generalist Supreme Court has therefore acted as an tition Soft Law and National Courts (An empiri- Constitutional and of its members. This paper will analyse how the legal important safeguard. For example, the Supreme Court cal overview of judicial attitudes to soft law in Comparative Perspectives insulation of the EPO together with its pivotal quasi- reversed the Federal Circuit’s approval of gene patents Germany France the UK and the Netherlands) judicial role in the grant of patents has facilitated the on the theory that fundamental science must be freely This paper is based on an empirical dataset of Specialist courts are often the result of deliberate insti- increasing dominance of EPO standards applied in available to all innovators, it has taken steps to pre- 112 national competition cases from four EU Member tutional design aimed at achieving functional efficiency patent litigation by national courts and the likely similar vent the Federal Circuit from sheltering patents from States, which contain judicial reasoning on suprana- and consistency. The downside is that specialization path ahead with the UPC. More generally, the paper will challengers, and it has cautioned the court against tional, Commission-issued competition soft law. The can lead to narrow focus, and external capture by inter- reflect on the imbalances created by harmonization of patent exceptionalism. In contrast, the drafters of the observed judicial treatment of the said instruments est groups. A growing body of scholarship indicates norms and specialist patent offices and courts in Eu- UPC decided to limit the role of the Court of Justice of can be categorized as positive (endorsement, persua- that this is particularly true in the field of patents where rope and consider how to address over-representation the European Union. A close study of experience with sion) or negative (rejection, neglect). Those findings patent offices as well as courts play a critical role in of patentees interests and under-representation of the Federal Circuit can alert European adjudicators to their broadly fit within the frameworks used by Hillary Greene determining what may be patented. Empirical research public interest in the grant of exclusive property rights. responsibility to incorporate social policy into their to study the judicial treatment of the federal antitrust shows that patent offices set standards which favour patent jurisprudence, help the public in identify areas merger guidelines in US courts and by Tamara Her- their clients, whilst the appointment of patent law- Tuomas Mylly: Does the insulation of the Unified where the dangers of specialization are particularly vey who traced adjudication in the shadow of informal yers to specialist courts in the US and Australia has Patent Court from EU law and outside influ- strong, and assist the CJEU in clarifying the scope of settlements in the social welfare sector. Considering resulted in the introduction of more lenient standards ences hold water? its review authority. these two works and further theoretical literature, this of patentability often reversed by the highest courts. The purpose of the contribution is to address the paper goes on to enquire as to the possible reasons In Europe, national courts are increasingly following ways in which the jurisdictional domain of the Unified Xavier Seuba: Technical judges and scientific for detected national judicial attitudes to suprana- the European Patent Office’s standards even though Patent Court (UPC), the “unitary patent package”, is complexity in patent law tional competition soft law. Firstly, it is argued that the they are not legally obliged to do so. Yet, specialist shielded against external judicial review: systemically The presence of technically qualified judges or, observed judicial attitudes are determined by vertical patent courts and patent offices’ appeal boards differ operationally and substantively. The norms providing simply put, judges with scientific or technical expertise interactions between the national and supranational in institutional design, in the type and level of special- the unitary patent its substantive contents, the Agree- rather than law, is one of the key characteristics of the (EU) level. Those interactions comprise of informational ization in the judicial or quasi-judicial/administrative ment on a Unified Patent Court and the European Pat- Unified Patent Court (UPC). Specialist judges are an exchanges with regard to the judicial endorseability of function of their judges, in the degree of oversight and ent Convention (EPC), are shielded against judicial important institutional tool of the UPC to respond to said soft law instruments. With their competition judg- mechanisms for judicial review to which they may be review. The UPC is detached from any background the technical and scientific complexity characterizing ments, the CJEU (the ECJ and GC) show their position subject by generalist courts. This panel will compare legal system with limitations anchored in domestic patent litigation. This presentation will analyse and on Commission-issued competition soft law and thus and evaluate how the design of patent courts impacts constitutional law and general doctrines of law. It will evaluate the reasons for the inclusion of this type of send a signal to the national judiciary, which – in turn – on the protection of human rights. be one of the most specialist courts in the world, thus specialist judge in patent courts and the specific form absorbs/transforms the signal and sends it back to the being shielded from external legal influences. Where- of regulation of technical judges in the UPC. The ap- supranational level. Secondly, it is maintained that the Participants Aurora Plomer as the UPC and EPC systems will likely converge based proach taken will be comparative and analyse how the peculiarities of competition enforcement and the legal Tuomas Mylly on shared expert rule, European Union (EU) law is at role of technical judges in the UPC compares to that systems of each Member State under observation influ- Rochelle Dreyfuss the same time subjected to fragmentation. Its core of other technical judges in specialist patent courts in ence judicial engagement with supranational soft law. Xavier Seuba principles concerning legality and judicial review are other jurisdictions in Latin America. The particular peculiarities examined in this study are: 1) Dhanay Cadillo Chandler being undermined in the process. In the cases chal- intensity of judicial review for public enforcement cases Moderator Athanasios Psygkas lenging the legality of the patent package, the Court Dhanay Cadillo Chandler: The influence of “spe- 2) type of court handling the case (specialized or not) for Room 8B-4-43 of Justice of the European Union (ECJ) appears to cialist” ip Courts on generalist courts in Chile both public and private enforcement cases and 3) the permit the related disintegration of Union law, its legal The expression “specialist courts” is traditionally existence or not of a national soft law instrument that is instruments and the ECJ’s powers for the sake of a understood to refer to courts or tribunals with limited or equivalent or identical to its supranational counterpart. Aurora Plomer: The European Patent Office as specialist autonomous hybrid regime functioning on exclusive jurisdiction in a determined field of law (Zim- All of the above-enumerated factors, it is argued, can the legal engine for patent policy in Europe the borderline of Union and international law. Despite mer 2009). One of the benefits of creating specialist influence the ability of national courts to engage with The aim of this paper is to investigate the role of the institutional design of the package intended to courts is their capability to improve decision making supranational competition soft law and/or their attitude the European Patent Office and its linkage to the judi- limit the impact of EU law and the role of the ECJ to due to the expert judges’ ability to decide on such towards it. As a final point, the paper observes that di- cial systems of its members. The EPO was historically the minimum, general EU norms and legal principles complex matters. Chile is a case in point. The Chilean vergence in national judicial treatment of supranational created as a quasi-administrative body vested with may still affect the package considerably more than Patent Office (INAPI) created a specialist court in ac- competition soft instruments, although minimal with the power to grant European patents on the basis of envisioned by the architects of the patent package. cordance with the Chilean Intellectual Property Law. regard to some instruments (the Vertical Guidelines the new ‘common’ European law on patents set out The presentation will also discuss the ways in which Nevertheless, intellectual property rights infringement that get predominantly recognized) is quite significant in the European Patent Convention (1973) against the such non-patent specific EU norms principles and cases are heard and solved by generalists in either civil with regard to others (the 102 Guidance Paper and the diversity of national patent laws in Europe. In reality, values may still penetrate the unitary patent package or criminal courts, depending on the IP right infringed, Horizontal Guidelines that get a mixed judicial response). the existence of opposition and appeal procedures and thus affect the adjudicative practices of the UPC. with expectation of applications to extend the term of This fact poses a problem for the maintenance of the within the EPO system means that EPO boards have patent protection due to unreasonable curtailments principles of consistency and legal certainty that the developed a quasi-judicial function reflected in the Rochelle Dreyfuss: Specialization: Lessons of time in granting patent protection or the marketing Commission hoped to further by means of soft law in description of their jurisprudence as ‘case-law’. As from the u.s. experience with the Federal Cir- approval to commercialize a pharmaceutical or agro- the aftermath of decentralization of EU competition the institution fronting the grant of European patents, cuit Court of Appeals chemical product. The present contribution intends law enforcement. It is therefore argued that, in order for the EPO thus has a critical role in setting legal patent The Federal Circuit was established to put patents to shed light on the role of the Intellectual Property national courts not to hamper the said principles – on policy for its members in Europe. Yet the EPO is an on a surer footing: to increase uniformity predictability, Court of Appeals in influencing generalist decision- the contrary to further them – national judicial engage- autonomous intergovernmental organization whose and patent value. To many observers, however, isolat- making process in criminal courts when solving dis- ment with soft law needs to be explicit and meticulously specialist jurisdiction and operation is completely ing the court from the mainstream has led it to give putes arising from patent infringements in Chile. To reasoned, thus reflecting the important EU Governance detached and insulated from review in the legal sys- short shrift to human rights, competition and inno- achieve this, an analysis of the relevant patent and criteria of openness and transparency. tem of the European Union, the Council of Europe’s vation policy as well as social welfare. Review by the patent enforcement provisions within the Chilean IP

Concurring panels 172 Concurring panels 173 Law will be carried out. Decisions concerning patent- 100 Tru st and European Judicial in information or confidentiality by EU institutions dif- created and supported this doctrine. By analysing orig- ability requirements from the Intellectual Property Governance ferent from those of industry or individuals. The paper inal survey data, the findings confirm how supremacy Court of Appeal will be analysed to understand the identifies a lack of coherence and rather an actor- is affected by judges’ evaluation of supranational and Patent Office’s role in delineating the scope of pat- Current European debates underline the relevance depended understanding of trust by the Court. In the national judicial institutions. ent protection for pharmaceutical and agrochemical of trust-enhancing solutions for addressing some of Court’s view, trust seems salient to defend institutional products and compare the role of criminal courts in the challenges the European Courts are facing. Par- discretion and the confidence of certain private inter- Zuzanna Godzimirska: Builders of (dis)trust: patent infringement rulings. ticularly important, in this role as judicial policy-maker, ests, but marginal in the relation towards the citizens. The Role of Registries in the European Courts the Court of Justice of the European Union (CJEU) As the European legal order’s impact on the daily and the European Court of Human Rights (ECtHR) has Monica Claes: The CJEU and National Courts: lives of its citizens has grown, so too has attention to been repeatedly criticized by national authorities in Building Mutual Trust the public’s trust in European institutions and courts. charge of implementing its decisions. In the light of The European Union lacks a full-fledged EU fed- Early on, Gibson and Caldeira (1995, 1998) suggested such developments, trust is widely recognized as a eral court system, and hence, is dependent on na- that the Court of Justice of the European Union (CJEU) factor that may enhance legitimacy and complement tional courts to enforce EU law and protect the EU did not enjoy high levels of diffuse public support, but institutional efforts when achieving and coordinating rights of individuals. Over the years, the CJEU has, more recently Keleman (2013) found that the CJEU is important public purposes and compliance. In fact, in its case law, developed a European mandate for the most trusted European institution, with net trust the CJEU has been pushing forward for the incorpora- national courts: a set of duties and obligations for na- scores relatively stable over the past decade. Simi- tion of trust between Members States as a regulatory tional courts in the enforcement of EU law (built on larly, al et al (2011) find that domestic actors display mechanism for the implementation of EU law based doctrines and principles such as direct effect, primacy, remarkably high levels of trust in the European Court on mutual recognition. Despite these recent debates, conform interpretation, effet utile, mutual recognition of Human Rights (ECtHR) system as a whole. Existing we still lack a proper conceptualization of trust as an and mutual trust). More recently, the EU legislature has research on trust in European and international courts EU (judicial) governance mechanism in the policy and developed additional duties for national courts, as is more generally focuses predominantly on the role of scholarship debate. This panel will try to cover this the case in the areas of criminal law (European Arrest judges and their rulings in engendering or undermin- lacuna by reflecting about trust as a cooperation-en- Warrant) and asylum law. The CJEU is the supreme ing trust, largely overlooking the role of Registries and hancing mechanism based on the current debates court of this decentralized European and transnational Legal Secretariats. While understandable given the about the relevance of trust for judicial governance in judicial system. Mutual trust between the CJEU and visibility of a court’s judges, this narrow focus remains the European context. national courts and the national courts among them- surprising as a court’s registry is responsible for the selves is of fundamental importance for this highly day-to-day work of the institution represents the pri- Participants Vigjilenca Abazi interdependent system to function. However, the mary point of contact for parties to a case, and plays a Monica Claes practice shows that trust – rightly or wrongly – is not critical role in conducting legal research and drafting Juan A. Mayoral complete: constitutional courts do not always uncon- judgments and decisions. This article shifts the focus Zuzanna Godzimirska ditionally trust the CJEU to protect fundamental values of existing research on trust in judicial institutions to Moderator Urška Šadl as transpires from their positions on fundamental right evaluations of Registries’ trustworthiness, as one el- Room 8B-4-49 protection national identity and ultra vires review. The ement that impacts the degree of trust in two Euro- CJEU does not always trust national courts to give pean courts: the General Court of the CJEU and the priority to EU law and take the ‘right’ decisions, while ECtHR. We draw from surveys of individuals, compa- Vigjilenca Abazi: Judging Trust: Which Role national courts do not always trust each other to com- nies, NGOs, and their respective lawyers that have Does the CJEU Ascribe to Trust? ply with fundamental principles, such as the rule of initiated claims in order to identify Registry actions or Trust is often invoked in the European Union. Calls law and fundamental rights. This paper looks into the practices upon which these constituents rely when for better regulation or transparency rely on trust, but manner in which CJEU and the national courts deal forming evaluations of the Courts’ level of trustworthi- trust is seldom used in any stringent way. The under- with these trust issues and which legal mechanisms ness. In doing so, this article sheds light on the critical standing of trust by the Court of Justice of the Euro- and techniques they use to foster mutual trust, while at role of bureaucrats within the European courts and pean Union (CJEU) as an authoritative voice on EU the same time ensure that the fundamental principles provides new insights into the factors shaping levels of law informs and shapes the role trust has and should they cherish are not undermined. (dis-)trust in the main ‘engines’ of European integration. have in the EU legal system. But how does the CJEU itself understand trust? Is trust marginal or relevant Juan A. Mayoral: On EU law supremacy: The in European case law? This article aims to answer impact of judicial trust for strengthen suprana- these questions that have been ignored in academic tional legal system debate about judicial power of international courts. It The literature, in the last couple of decades, has compares the European judicial approach to trust with developed diverse justifications for explaining why the administrative cases handled by the European national courts accept and enforce EU law suprem- Ombudsman (EO) in order to map whether there is acy and its importance for legal integration. However, coherence or dissimilarity in judicial and administrative new scholarship on the role of individual attitudes and cases. It utilises case law and document analysis and judges’ profile remarked the relevance of judicial trust draws from a comparative approach for the study of for the acceptance and compliance by national judges the role and positions of the CJEU and EO. In mapping with their duties imposed by the CJEU as EU decen- the understanding of trust by the CJEU, the article dis- tralized courts. This study takes this novel approach for cusses claims under the Transparency Regulation as the judicial construction of Europe and proposes that an exemplary case and raises questions whether the the judges’ grasp of supremacy is generally influenced Court’s take on trust is actor specific, treating interests by their individual attitudes towards the CJEU which

Concurring panels 174 Concurring panels 175 101 The Disabling of the Ireneusz Paweł Karolewski: Power and the Con- tinuously lead to the other new concerns which are constitutional courts stitutional Court in Poland: Democratic back- incompatible with EU law or standards, including EU and fragmentation of sliding or just another political conflict? fundamental rights and freedoms. The purpose of the the EU legal order On January 13 2016 the European Union launched presentation is to demonstrate clear indications of a an investigation against its member state – Poland. systemic threat to the rule of law in Polish legislature The panel explores in how far the disabling of the The reason for it was, among others, the constitutional particularly in the context of doubtful effectiveness of constitutional courts in the EU Member States leads crisis in Poland involving a conflict between the ruling constitutional review of new legislation. Legal issues to the fragmentation of the EU law. This question PiS party and the newly elected President on the one arising out of parallel norms engender dual norma- will be elaborated in an interdisciplinary perspective hand and the incumbent Constitutional Court judges tive reality which in turn affects the Single Market es- including both the legal and political sciences. The and the opposition parties on the other. The ruling PiS pecially business relations very sensitive to unstable panel will elaborate the issue by analysing what anti- passed a new law in December 2015 changing the and unpredictable legislation. Moreover, the problem fragmentation techniques the CJEU can apply explor- set-up of Poland’s Constitutional Court and its rules relates to the jurisdiction and potential parallel adju- ing the relevance of political conflicts disabling the of decision-making, forcing it, among other things, to dications dependent on the judge personal relation to constitution courts and reflecting on how the CJEU make decisions exclusively with a two-third majority, recent Polish authorities. All the more important is the can fill in the gap left by disabled constitutional courts. which made it, as critics pointed out, difficult for the role of the Court of Justice of the EU within the pro- One of the main issues here will be whether the con- court to act at all. This was seen by the opposition ceedings between the Commission and Polish state stitutional crisis in Poland (2015-2017) can be in fact parties and the Constitutional Court itself as uncon- as well as within the preliminary ruling procedure. The interpreted as a democratic backsliding or rather a stitutional and problematic regarding the separation proposed analysis makes part of the discussion aimed temporary political conflict. Disabled constitutional of power principle. In addition, the Venice Commission at preventing the escalation of the problem resulting in courts can be prevented from referring preliminary of the Council of Europe, who explored the issue as sanctioning Poland for a serious and persistent breach questions to the CJEU. However, in the absence of well as the European Commission questioned some of EU law or standards. an active constitutional court, Member States’ courts of the contents of the new law, thus giving the op- could be encouraged to refer preliminary questions position additional arguments against the PiS gov- Mirosław Wyrzykowski: Decline of control of more often to the CJEU in particular within the free- ernment. As a reaction Prime Minister Szydło denied constitutionality v. fragmentation of the legal dom of establishment and to provide services. Thus, that there were any attempts by her government to system the CJEU could more effectively guarantee individual impede democratic values and pluralism in Poland. At Polish constitutional crises of annus horriblis 2016 rights within the areas covered by the EU law than the same time, the PiS policy-makers argue that the is caused by abuse of competences of the constitu- the disabled constitutional courts. Therefore, the new law was merely a response to an attempt of the tional authorities: the President, the Parliament and the disabling of the constitutional courts might lead to formerly ruling PO-PSL government to rig the court’s Government. The intention of this abuse is to eliminate unexpected integration tendencies. set-up in its favor by passing its own law on the re- the Constitutional Tribunal as an effective guardian of form of the Constitutional Court in June 2015 and by the supremacy of the constitution. War on the Consti- Participants Jędrzej Maśnicki unconstitutionally electing new judges. According to tutional Tribunal is indeed war on the constitution. Be- Ireneusz Paweł Karolewski this argument, it was the PO-PSL government that cause of lack of required qualified majority to amend Sylwia Majkowska-Szulc politicized the Court against its original setup as an the Constitution the simple parliamentary majority is Mirosław Wyrzykowski independent institution. In consequence, the PiS saw using the legislative rules to change the constitutional Moderator Robert Grzeszczak its 2015 law on the Constitutional Court as a remedy to order in Poland (by-passing the Constitution). The new Room 8B-4-52 unconstitutional steps taken by the preceding govern- rulings of the status of the Constitutional Tribunal was ment. Against this backdrop, the paper explores the overwhelmingly declared by the Tribunal as violation political power issues involved in the constitutional of the Constitution. Lack of the effective control of Jędrzej Maśnicki: The autonomous interpreta- conflict in Poland. By using two competing concepts of constitutionalism of the legal system leads to its frag- tion method as the judge-made instrument to “state capture” and “juristocracy” the paper will discuss mentation. To avoid dramatic consequences of this prevent renationalization whether the constitutional crisis in Poland can be in situation the ordinary court have to replace the func- The paper argues that the “autonomous interpre- fact interpreted as a democratic backsliding – a thesis tion of the Tribunal and start to serve as a guardian of tation” is still a vivid concept which allows the CJEU expressed by some pundits or rather a political conflict. the Constitution. It is extremely complex and contro- to deepen the EU integration. Therefore, this judge- versial issue due to limited legal instruments, limited made interpretative instrument challenges the rena- Sylwia Majkowska-Szulc: Normative parallelism know-how, readiness to be learned, courage and lack tionalisation tendencies within the EU. Moreover, the at a time of constitutional crisis in Poland of experience of the ordinary judges (courts). Use of autonomous interpretation as the CJEU’s concept can The concept of normative parallelism has tradition- the ECJ preliminary question procedure, possibility be compared to the analogous concepts developed ally been linked with the phenomenon of normative to ask legal question to be answered by the Supreme by the Member States’ constitutional courts. Here the fragmentation of international public law norms, but Court, direct use of the Constitution, as a foundation question remains: who has the authority to deliver the currently it also relates to the interaction of norms to solve individual cases are now instrument to protect final legal interpretation of the disputed terms and derived from a given national legal order of a mem- the very function of the Constitution of Poland. Avoid- which court (the CJEU or the Constitutional Court of ber state of the EU in the field covered by EU law or ance of fragmentation of the legal system became a Member State) has more interpretative power to standards. Recent developments in Poland have much more difficult, but not excluded, yet. persuade other courts and tribunals in particular the heightened the need for an in depth analysis of the administrative courts? problem of systemic threats to the rule of law at a time of constitutional crisis in Poland. New concerns have arisen since the Commission’s Recommendation of 27 July 2016. Polish legislature and executive con-

Concurring panels 176 Concurring panels 177 102 Where Our Protection Lies: 103 T HE FUTURE OF International thursday Panel Constitutional Review Law and International and Separation of Powers – Organizations 6 july 2017 session BOOK DISCUSSION The global ascendancy of constitutional review in re- Participants Michael B. Krakat 16:00 – 17:30 4 cent years has not diminished its contentiousness. Rishi Gulati In his forthcoming book, Where Our Protection Lies: Eyal Benvenisti and Constitutional Review and Separation of Powers (OUP Agon Sivan Shlomo 2017) Dimitrios Kyritsis offers a novel philosophical Anne van Aaken account of the limits and justification of constitutional Oleksandr Vodiannikov review. He argues that we do well to view constitutional Moderator Anne van Aaken review through the lens of the idea of institutional co- Room 4B-2-34 operation as regulated by the principle of separation of powers. He contends that, while legislatures ought to have the initiative in shaping government policy and Michael B. Krakat: Is an “International Law of giving meaning to our constitutional rights, courts are Citizenship” a misnomer? Courts as mediators well-suited to perform a checks-and-balances role. between mercantile- and global citizens Crucially, this role is subsidiary. The book then devel- This paper discusses domestic and international ops a sophisticated theory of judicial deference that courts in regards to the globalization of citizenship operationalises courts’ subsidiarity in fundamental laws. It refers to municipal direct sale of citizenship ‘by rights adjudication. This panel will be devoted to criti- investment’ (CBI), direct naturalization without periods cally examining the key claims of the book. Discus- of required residence, creating global market citizens. sants (Mattias Kumm, Stephen Gardbaum, Kai Möller) Likewise supra-national law pierces the national veil, will comment freely on any of its aspects. The panel rendering futile the ICJ’s judgment in Nottebohm that will consist in a) outline of the overall argument by the required a ‘genuine connection’ for national member- author, b) the discussants’ comments, c) author’s reply, ship. The European Convention on Nationality shows d) q&a session. that naturalization has become more of a duty-less right than a favour requiring proceedings within a rea- Participants Dimitrios Kyritsis sonable time and with reasonable fees. Human Rights Mattias Kumm may further constrain the denial of any form of citizen- Stephen Gardbaum ship, with restrictive policies seen as discriminatory. Kai Moller The supranational nature of Human Rights Law is ex- Moderator Dimitrios Kyritsis pressed in developing binding force even against the Room 4B-2-22 will of the signatories. ‘Supranational citizenship’ was evaluated in Rottmann, rooted in an initially commer- cial union with political aspirations and cosmopolitan Dimitrios Kyritsis: Where Our Protection Lies outlook. Domestic courts function in a national as well as the development of an international order, over- Mattias Kumm: Discussant coming supranational-level institutional deficiencies. Conversely, the ICJ has interpreted and applied do- Stephen Gardbaum: Discussant mestic law. Can we distil principles common to above systems, inspiring a rule for global citizenship for the Kai Moller: Discussant international community, a cosmopolitan outlook on CBI laws? Is an ‘international law of citizenship’ emerg- ing turning ‘international’ law into ‘law’?

Rishi Gulati: Justiciability of disputes involving international organisations International organisations affect the lives and rights of individuals more than ever before, as exem- plified by the outbreak of cholera in Haiti due to UN conduct or the occurrence of the genocide in Sre- brenika. It is trite to say that victims of international organisational conduct more often than not are denied a remedy. To secure the delivery of justice to persons harmed by international organisations, access to ju- dicial mechanisms is paramount, for such access is the ultimate guarantee to a check on the unrestraint

Concurring panels 178 Concurring panels 179 exercise of institutional power, and a pre-condition good games are concerned with the question under 104 Book Roundtable: A 105 judicalization of to the enjoyment of the right to the individual access what conditions social cooperation arises. They in- Discussion on “Unconsti­ Politics in Illiberal to justice. This demand for the individual’s right to clude behavioral insights deviating from the rational tutional Constitutional Democracies: Effects access to justice includes both access to national choice assumption. This paper asks what those in- Amendments” and Challenges courts, as well as international mechanisms set up to sights can contribute to our understanding of interna- deliver justice, as the case may be. Both international tional law. Whereas HLA Hart deemed his “Concept of Can a constitutional amendment be unconstitutional? The panel explores how the rise of illiberalism affects and domestic mechanisms should be considered as Law” an essay in descriptive sociology, this paper is This paradox is now one of the most important ques- the rule of law and increases the political importance occupying critical positions in the international legal an exploration of an essay in descriptive psychology. tions in all of public law. It is this question that forms the of courts. It draws mostly on Central and South-East order. Instead of isolating the national from the inter- It allows also us to test (international) legal theories core of Yaniv Roznai’s inquiry in his new book entitled European examples, but also advances hypotheses national it is important to understand the links be- against realistic behavioral assumptions. “Unconstitutional Constitutional Amendments” (OUP and develops arguments that could be applicable well tween those two legal orders and their intertwinement, 2017). In this panel four scholars will comment on Roz- beyond this region. In Central and South-East Europe when it comes to understanding questions of access Oleksandr Vodiannikov: Reclaiming Legitimacy nai’s book, and Roznai will respond, after which we will constitutional values of liberal parliamentary democra- to justice vis-á-vis individuals affected by the actions through International Law: Friendly Treatment engage in a broader conversation with the audience cies have not only became less appreciated and much of international organisations. In this paper, I discuss of International Law Jurisprudence of the Con- on this intriguing question. less understood but also the main targets of new, right the concept of ‘justiciability’ at the national and the stitutional Court of Ukraine in Turbulent Times wing populist forces. The paper presentations focus international level. for International Law Participants Richard Albert both on theoretical issues – such as illiberalism as an General distrust of international law and institu- Joel Colon-Rios ideology in complex and tense relationship with consti- Eyal Benvenisti and Agon Sivan Shlomo: The tions has lurked into courtrooms of many states. Ju- Rosalind Dixon tutionalism – and on empirical case studies from Bul- WTO Law of Strangers: Other-Regardingness in dicial dialogue between the national courts and inter- Gary Jacobsohn garia, Hungary and Serbia. An important dimension of Benvenisti Eyal WTO Jurisprudence national tribunals is tainted with growing distrust and Yaniv Roznai the analyses is to investigate the emerging politiciza- The article explores the phenomenon of other- frustration. Against this background Ukraine’s Kim Lane Scheppele tion of jurisprudence at international courts, especially regardingness in international adjudication while fo- Moderator Richard Albert the European Court of Human Rights, that is caused cusing on the WTO dispute settlement system (DSS). Room 4B-2-58 by political parties in power that define themselves as Through careful analysis of WTO jurisprudence, it illiberal. A more general issue the panel addresses is uncovers the role played by other-regarding consid- to what extent courts could be instrumental for the erations in the DSS operation as manifested along Richard Albert: Discussant curbing of some of the excesses of populist politics. two interrelated threads. The first concerns a series of obligations imposed by the DSS on WTO Members Joel Colon-Rios: Comment on Roznai’s “Uncon- Participants Denis Galligan in respect of third states and foreign nationals, se- stitutional Constitutional Amendments” Daniel Smilov curing such strangers a voice in domestic regulatory Judit Sandór processes that affect them. The second concerns Rosalind Dixon: Comment on Roznai’s “Uncon- Violeta Beširević other-regarding elements introduced by the DSS to stitutional Constitutional Amendments” Moderator András Sajó its own operation, accounting for stakeholders other Room 7C-2-24 than the disputants appearing before it. The two other- Gary Jacobsohn: Comment on Roznai’s “Un- regarding threads unveil in turn critical aspects of WTO constitutional Constitutional Amendments” adjudication. They expose other-regardingness as a Denis Galligan: Judicalization of Politics in Illib- multifaceted judicial philosophy that emerged in the Yaniv Roznai: Response to comments on Roz- eral Democracies shadow of textualism in WTO jurisprudence, embed- nai’s “Unconstitutional Constitutional Amend- ding the interests of various strangers within the duties ments” Daniel Smilov: Illiberalism and the counter- of Members under the WTO and within the bilateral majoritarian difficulty II structure of WTO disputes. The two threads further Kim Lane Scheppele: Comment on Roznai’s Alexander Bickel’s counter-majoritarian difficulty recount a story of institutional change, illuminating “Unconstitutional Constitutional Amendments” acquires another meaning in Eastern Europe today. the DSS transformation from a purely bilateral dis- The problem is not why courts stand against the will pute settlement mechanism to an adjudicating system of democratically elected bodies, but why they fail to with enhanced public administrative and regulatory do so effectively even if these bodies violate constitu- features. Finally, the DSS other-regarding account tional principles and rights. This is a pertinent question elucidates the role played by international courts in since Eastern Europe has been generally regarded as a broader contentious shift from bilateralism to pub- a success story in terms of institutional transplantation licness and community interests in international law. of judicial review. Why the institutional transplants fail to perform as expected will be referred to as “coun- Anne van Aaken: Can Behavioral Economics In- ter-majoritarian difficulty II”. The paper explores this form International Legal Theory? question on the basis of evidence from Central East- “What is law” and what distinguishes law from other ern Europe with a specific focus on developments in social practices? “Is international law law?” Those old Bulgaria. The main argument is that constitutionalism questions may seem obsolete but they pop up again is a complex mixture of formal rules and informal con- and again. Theories about international law often con- ventions. Institutional transplants from the 1990s were tain implicit assumptions about how people and/or successful in creating rather robust formal frameworks. states behave and why. But they are disconnected However, the creation of necessary informal conven- from social science and behavioral insights. Public tions was lagging behind (and was even non-existent in

Concurring panels 180 Concurring panels 181 certain places). On the contrary, since the beginning of related to the new direction of governmentality. In the 106 constitutional Politics and they are acting contrary to the will of the majority as the 2000s the rise of political populism has helped to analysis of the Hungarian cases, one can observe that Comparative Institutional expressed by these (more) representative institutions. create a wide array of illiberal conventions underlying although there is only a minor increase in the number Design Constitutional theories addressing this counter-ma- the functioning of many constitutional bodies, courts of applications, the content of these cases reveal the joritarian difficulty include the idea that judges are including. The failure to create proper constitutional legal fabric of an illiberal democracy. The presentation In the field of constitutional theory, normative ques- merely protecting minorities, are ultimately advancing culture thus is not a contingent phenomenon, but fol- will address various cases – such as Karácsony and tions such as the appropriate role of courts, the nature democratic politics, or are upholding certain values lows from the political agenda of specific actors. The Others v. Hungary, Baka v. Hungary, Vókony v. Hungary, of constitutional adjudication and the appropriate ap- that are superordinate to democracy. This article ex- paper further argues that the counter-majoritarian dif- and the Vajnai group case – that would illustrate this proaches to interpretation are often discussed without amines judicial review in Singapore and notes that ficulty I (the original Bickel’s idea) has probably been an change in the political regime through the lenses of any explicit reference to a specific institutional setting the underlying critique embodied within the counter- over-exaggerated problem. In order for courts to seri- the European Court of Human Rights. To generalize in which these normative answers are expected to majoritarian difficulty that judges are unelected and ously oppose a democratically elected legislature they from these cases, one might conclude that political obtain acceptance. But variations in institutional de- that the legislature and the executive are more legiti- have to have powerful political allies among the parties, matters seem to be increasingly judicialized (Hirschl) sign can be linked to different answers in these ques- mate purveyors of democratic values critically frame the media, the civil society organizations and social and when courts of the nation state are unable to act tions: they can be shaped by different understandings the judicial approach to constitutional law. It identifies movements. If there are no such allies, or if these have as a balancing power, internationalized (Garoupa) – in that community of the role of courts and of public however a more recent trend towards a more assertive been systematically weakened and marginalized, as is which, in turn, transforms the role of the judiciary in law; moreover, differences in institutional design can conception of judicial role and judicial review. Indeed the case in some Eastern European countries, courts shaping political issues. also help shape these understandings and normative in many cases the courts have increasingly invoked are in a very weak position to make any political differ- expectations themselves. In this panel, the papers the principle first articulated in the seminal case of ence. The rise of political illiberalism in Eastern Europe Violeta Beširević: Making sense of political approach recurrent problems in constitutional theory Chng Suan Tze v Ministry of Home Affairs [1988] 2 is used as evidence supporting this thesis. question doctrine: The case of Kosovo and public law in a comparative fashion, or that con- SLR(R) 525 to justify their power to review legislative It was only a matter of time when the long-lasting textualize and explain answers to these problems by and executive action. This principle states: “All power Judit Sandór: From Checks and Balances to Serbia/Kosovo dispute would be, to paraphrase Toc- means of case studies that make visible the possible has legal limits and the rule of law demands that the Wigs and Robes: Facing Illiberal Democracy at queville, resolved into judicial question. First, following connections between theory and variations in institu- courts should be able to examine the exercise of dis- the European Court of Human Rights Kosovo’s unilateral declaration of independence, Ser- tional arrangements. cretionary power.” In examining the cases that have In a country ruled by civil law, such as Hungary, bia’s counter-secessionist strategy included involve- invoked this principle, this article argues for an emerg- courts are rarely used for testing policies and initiating ment of the International Court of Justice, which was Participants Thomaz Pereira ing normative theory of judicial review in Singapore as their change. Moreover, in the wider legal context of asked to deliver advisory opinion as to the legality of Jaclyn L. Neo one of legitimacy rooted in legality. the civil sphere, one may note that the political apa- Kosovo’s declaration of independence. Soon after, the Diego Werneck Arguelhes thy originating from the state socialist period have Constitutional Court of Serbia and the Constitutional James Fowkes Diego Werneck Arguelhes: “The Court it is I”: become an enduring tradition, preempting the devel- Court of Kosovo faced the requests to decide on the Moderator Jaclyn L. Neo individual judicial review in Brazil and its impli- opment of a culture of rational political debate. The constitutionality of the Brussels Agreement, reached Room 7C-2-14 cations for constitutional theory 2008 financial and economic crisis hit the country in the political dialogue between two parties with an Constitutional theorists have debated extensively hard and various forms of scapegoating emerged as aim to normalize the relations between Belgrade how constitutional courts should decide, and under a convenient form of explaining economic hardships and Pristina. While the UN General Assembly gave Thomaz Pereira: Constitutional Review of Con- which conditions the institution of judicial review could and social conflicts. It seemed that after a little more to the International Court of Justice a clear mandate stitutional Amendment Law: The Brazilian Case be reconciled with democratic commitments. Such than 20 years of experimenting with creating a liberal to deliver the Opinion, the constitutional mandate of The Brazilian constitutional framework is character- debates have been largely based on the assumption democracy, the majority in the country opted for strong the both constitutional courts to decide watershed ized by the existence of an extremely long and open- that, even as they can be counter-majoritarian in re- leaders and autocratic solutions. In the summer of political questions touching state sovereignty, the or- ended list of unamendable constitutional clauses as a lation to the broader political institutions, the consti- 2014, at an annual youth festival that takes place in ganization of territory and nation-building concerns central feature of its institutional set-up. Nevertheless, tutional courts themselves are internally organized Transylvania, the Prime Minister of Hungary, Orbán was clearly susceptible from the separation of pow- its constitutional culture lacks a consensual narrative according to majority rule. That is, judicial intervention Viktor, gave a speech on his political vision and his ers perspective. Yet, neither of the two constitutional capable of justifying the legitimacy of their constitu- in legislative or executive politics, when it does take future ambition of moving Hungary to the direction of courts assessed the task under the political question tional supremacy. In this context, the Brazilian Supreme place, can only be the outcome of some kind of col- an illiberal democracy. This declaration simply added doctrine and separation of powers principle. While the Court has been situated itself at the center of any major legiate decision-making process; individual judicial a brand name for a process that had gradually devel- judicalization of Serbia/Kosovo dispute fits well in the institutional reform, but lacks an elaborate theory to positions and preferences could therefore only af- oped since Fidesz, his party won the parliamentary global trend of ‘judicalazation of mega politics’, its ef- justify its substantive interference in the process of fect the world outside the court after going through elections in 2010 and remained in power since then. fects are rather modest: it did not resolve the conflict, constitutional amendment of the very Constitution that an aggregative procedure. In this sense, constitutional Constitutional changes, such as limiting the role of the nor brought political leaders closer to its resolution. legitimates its power of judicial review. Through the theory – including the criticisms on the legitimacy of ju- Constitutional Court or appointing the president of the On the contrary, it only “offer[ed] refuge for politicians analysis the Brazilian Supreme Court case law on the dicial review – typically assumes that, internally, courts Republic from the ranks of the ruling party, soon spread seeking to avoid “no win” decisions” (Hirschl). Based constitutional review of constitutional amendments, are majoritarian institutions, and minority positions will to every aspect of the political and business spheres on Kosovo example, this paper aims to reassess the this article debates this broader theoretical issue and ultimately be silenced or forced into becoming dis- in the country. Courts were extensively used to crimi- political question doctrine and examine whether ‘ju- tries to elaborate the framework for a constitutional senting opinion. In this scenario, the goals of this paper nalize the socialist politicians of the previous govern- dicalization of mega politics’ merely frustrates rather theory of unamendable constitutional clauses. are twofold. First, from a descriptive point of view, we ment. This illiberal turn could be analyzed from various than facilitates constitutional democracy. challenge this majoritarian assumption by means of angles, including its effects on the private lives of the Jaclyn L. Neo: “All Power Has Legal Limits”: a case study of the Brazilian Supreme Court. We will citizens. In this paper, however, I choose a somewhat Towards a Normative Theory for Judicial Review analyze a set of informal and formal mechanisms of narrow focus and explore how the European Court of in Singapore court’s decision-making process in which individual Human Rights have reacted to the gradually increas- Theoretical justifications of judicial review typically Justices can make their preferences prevail against ing number of applications from Hungary – especially respond to this dominant critique: when unelected both external (political) and internal (judicial) majori- those cases in which violations of the fundamental judges wield the power of judicial review to strike ties. In the Brazilian court, a single justice can bypass rights encompassed in the Convention were closely down actions of elected legislators and executives, the court as a collegiate body and directly affect poli-

Concurring panels 182 Concurring panels 183 tics – even to the point of creating counter-majoritarian 107 from Dialogue to Defiance: tutional courts’ reservations to EU law and to define defense of its policies on migration, and everywhere it outcomes. We call this phenomenon individual judicial Exploring the limits of the procedural and substantial limits of a ‘sustainable’ may disagree with the EU. When the Hungarian Con- review. Second, we discuss the (potentially serious) constitutional courts’ dissent by constitutional courts. stitutional Court on behalf of the government protects normative implications of non-majoritarian judicial challenges to EU law Hungary’s current constitutional identity, which is in- decision-making for constitutional theory and demo- Ladislav Vhynánek: Barking dog never bites: On consistent with many of the joint values of Article 2 TEU, cratic politics in general. We argue that the possibil- In recent years, there is no lack of constitutional courts’ the Euro-friendliness of the Czech Constitu- it promotes an unconstitutional national constitutional ity of individual judicial review should be tentatively judgments that more or less openly challenge the tional Court identity. If the EU will still be unable to protect its joint avoided by institutional designers. primacy of EU law and the ECJ’s authority. The Czech The Czech Constitutional Court (‘CCC’) famously values towards Member States, such as Hungary (and constitutional court’s famous judgment of 2012 for the declared an ECJ’s judgment ultra vires. Does this mean lately also Poland), which do not want to comply with James Fowkes: Development the Global South first time found an ECJ’s decision to be ultra vires. The that the CCC intends to be a guardian of the Czech them, the case of Hungary (and Poland) will have a and Courts: Engaging the new reality German constitutional court reiterated and developed sovereignty and constitutional order against foreign negative impact both on countries with genuine and To a surprising degree, non-legal development its doctrine on the constitutional limits to compliance intrusions? This paper argues that this would be a mis- legitimate national constitutional identity claims and professionals are operating with a 19th-century con- with EU law in a handful of recent judgments. In De- understanding of the CCC’s position and that the ultra on the constitutional pluralism in the EU abandon- ception of what courts are, in which judges spend their cember 2016 in a judgment on the immigrants’ quota vires judgment was a negligible episode with peculiar ing the common European constitutional whole and time enforcing contracts, trying criminals, protecting system, the Hungarian constitutional court endorsed domestic roots. It firstly analyses the concept of the emphasizing only the unconstitutional national(ist) property rights and upholding the rule of law, thinly in the abstract the possibility to refuse compliance Eternity Clause of the Czech Constitution, which con- constitutional identity. defined. As an abstract model, this has its advantages with EU law in the name of a Member State’s consti- stitutes the only foreseeable normative obstacle to the and drawbacks. As a description, it is more than half tutional identity. A preliminary reference by the Italian supremacy of EU law within the Czech legal order. This Diletta Tega: Narrowing the dialogue: The Ital- wrong, since emerging systems have largely made constitutional court is currently pending before the ‘constitutional core’ does not draw on some specific ian Constitutional Court and the Court of Jus- different choices and their courts are far more involved ECJ: While showing a rather dialogical approach, it Czech constitutional identity but rather on shared val- tice on the Taricco case in development, holistically defined. The argument that envisages the possibility to declare a Treaty provision ues and principles of liberal democracies. Afterwards, In its 2015 Taricco judgment, the Grand Chamber needs making, in response to these views, is two-fold. inconsistent with the supreme principles of the Ital- the paper shows that the CCC adheres to euro-friendly of the ECJ held that the Italian legislation concern- First, the subject matter of development theorists is ian Constitution. This phenomenon deserves close interpretation of the Czech constitutional order and it ing the limitation period for VAT frauds is too lenient now to a significant degree a judicial story in many scrutiny. It can be considered either as a reasonable has even interpreted the Eternity Clause itself – espe- to ensure the protection of EU financial interests, as of the countries those theorists address. Descriptive counterbalance to the ECJ’s power or as a serious cially concepts like democracy or sovereignty – with required by Art. 325 TFEU, and has to be disapplied. In correction is needed, which means pulling together an threat to the European integration. Through national respect to the logic and nature of European integration. its order no. 27 of 2017, the Italian Constitutional Court often-fragmented area of study and coming to terms reports and comparative remarks, this panel aims at The CCC’s euro-friendliness is further complemented (‘ICC’) reacted poignantly. It found that this disapplica- with a global trend. Second, it needs to be asked how exploring the procedural and substantial limits of a by the respect that EU law pays to national – especially tion would infringe one of the supreme principles of the and where this matters. Lawyers themselves are still ‘sustainable’ judicial dissent in the European multilevel constitutional – identity of the Member States. Italian Constitution, i.e. strict legality in criminal mat- coming to terms (consciously or not) with the fact that constitutionalism. ters. Consequently, in an urgent preliminary reference, many emerging courts are playing roles in develop- Angela Schwerdtfeger: The Case Law of the the ICC asked the ECJ to reconsider its conclusions ment that have no counterpart in the role that courts Participants Davide Paris German Federal Constitutional Court: Between and to take into greater account national constitutional played in earlier transitions of countries from poor to Ladislav Vhynánek Attack and Dialogue concerns, arguing that they have some relevance also rich. Historical events in the Global North offer some Angela Schwerdtfeger The German Federal Constitutional Court (‘BVerfG’) under EU law. In this instance, the dialogue between guidance, but lawyers also need the tools of develop- Gábor Halmai has developed three types of review that challenge the two courts is indeed strained. Nevertheless, both ment theorists – which is why it matters that the two Diletta Tega the primacy of EU law. While the first cases dealt with courts would do well not to try to assert their own ul- disciplines, currently, talk past each other. Moderator Marta Cartabia fundamental rights review, in the recent past the BVerfG timate authority and instead to use it most sparingly Room 7C-2-12 has frequently referred to ultra vires and identity review. and prudently. Narrowing the scope of the controversy This constitutionally grounded review potentially threat- might be the best path to find a common ground and to ens the uniform application of EU law and conflicts with distinguish this case from other more serious and far- Davide Paris: Constitutional limits to EU law pri- the ECJ’s jurisdiction. The case law of the BVerfG thus reaching challenges to EU law that come from other macy: A comparative overview reveals a balancing act between self-confident demar- national jurisdictions. Several constitutional courts refuse to accept cation towards EU law on the one hand, and willingness the absolute primacy of EU law over domestic con- for a dialogue with the ECJ in the multilevel cooperation stitutional law. They have thus developed specific of courts on the other hand. The BVerfG’s judgments review mechanisms to deny in exceptional cases concerning the OMT decision of the European Central the applicability of EU law within the domestic legal Bank of September 2012 can be cited as an example. order. Although similar in their goal, these reserva- It was the BVerfG’s first request for a preliminary ruling tions significantly differ from each other. Taking into of the ECJ. Although the BVerfG in its final judgment of account the jurisprudence of eight Member States’ 21 June 2016 followed the ECJ’s ruling on the merits, it constitutional courts, this paper highlights similarities also expressed explicit criticism on the ECJ’s method- and differences in the limits constitutional courts set ological approach. This story is to be continued for sure. to the primacy of EU law. In particular, it offers a com- parative overview on the constitutional foundations of Gábor Halmai: The Misuse of Constitutional these reservations, on the values that can be invoked Identity: The Case of Hungary to refuse compliance with EU law, on the institutions After a failed referendum and constitutional that can exercise these review mechanisms and on amendment, the packed Hungarian Constitutional the procedural rules governing them. The comparative Court in an abstract constitutional interpretation rub- analysis helps to identify common trends in consti- berstamped the government’s constitutional identity

Concurring panels 184 Concurring panels 185 108 The Judiciary: From Empire to trol, attesting that the French state remains a (post?) 109 mechanisms for selecting should meet certain criteria, such as holding a lawyers Post-Colonial Constructs colonial one. Moreover, I argue that present-day courts supreme court judges degree and expertise or specialty in areas of public may be even less autonomous than during colonial law. Next, the Electoral body organizes an election This panel seeks to explore the role of colonialism in times when the colonial power actively sought to re- The panel will discuss three different mechanisms process. The seven candidates that obtain a simple court systems past and present. If as this year’s ICON cruit judges and prosecutors among native peoples for selecting Supreme Court judges. Mark Tushnet majority of the votes are elected for a period of six conference asserts that ‘expanding role of courts is to secure the buy in of local populations. By contrast, analyzes the new Canadian process for appointing years and they may not be re-elected. The following arguably one of the most significant developments the current “decolonized” state endeavors to keep judges of the Supreme Court. Micaela Alterio and Ro- seven candidates are appointed substitutes. Finally in the late-20th and early-21st century government’ native peoples off the bench (or at least off the courts berto Niembro study the Bolivian process for electing the President of the State administers the oath for could it be due in part to the forces of empire and post- located in their native lands). judges of the Plurinational Constitutional Court. Finally, office. The new Bolivian procedure for electing judges colonialism? This panel represents group of scholars Camilo Saavedra discusses the Mexican Supreme is praised for accomplishing diversity in the bench. In working in different geographic and historical settings Erin Delaney: Understanding the Post-Colonial Court appointing procedure. 2011, the first time in history constitutional judges were who will provide case studies or raise overarching Judiciary: Judicial Independence in the African elected, two of the seven judges were women and questions on the role of (post-)colonialism in creat- Commonwealth Countries Participants Mark Tushnet three were indigenous. However, the procedure was ing designing and transforming courts and judiciaries. Scholars have studied the impact of colonialism Micaela Alterio and criticized because 60% of the votes were annulled. on the judicial systems of the former British colonies Roberto Niembro This unique procedure in comparative constitutional Participants Binyamin Blum in the Caribbean and in Asia/the Pacific, but far less Camilo Saavedra law introduces new and interesting questions related Mathilde Cohen is known about the enduring effects of British rule Moderator Rafael Rubio to the legitimacy of judicial review, the design of judicial Erin Delaney on present day judiciaries in Africa. This project will Room 8A-2-17 elections, the judges’ political accountability, and the Tanya Hernandez explore how the legacy of the Judicial Committee of representation in constitutional courts. Moderator David Law the Privy Council (the court of final appeal in colonial Room 7C-2-02 times) and the current practice of sharing judges Mark Tushnet: Canada judicial appointment Camilo Saavedra: Mexico judicial appointment among African Commonwealth countries complicate process process our understanding of the role of a national judiciary and The “modern” (that is post-1960s) judicial appoint- On December 5th, 1994, just four days after taking Binyamin Blum: The Post-Colonial Jury: The the concept of judicial independence. What are the ment process in the United States has become per- office, Ernesto Zedillo, the last president emerging Rejection of Trial by Peers in Britain’s Former institutional mechanisms that allow foreign judges to haps the most transparent in the world. Not only are from the once hegemonic National Revolutionary Party Dependencies sit on national courts? Who are the judges that travel? nominees subjected to extensive public questioning, (PRI, for its Spanish abbreviation) before alternation, Though central to the English common law trial by How are they received by their colleagues? Does this but preliminary lists of those being considered for promoted a constitutional amendment of the insti- one’s peers was an idea firmly rejected in most British movement foster judicial independence or does it nomination are widely publicized. The typical nomina- tutional design of the Supreme Court of Justice. The colonial settings. With the exception of some settler reinforce old colonial principles and organizational tion since at least 1986 receives attention from inter- so-called 1994 judicial reform substantially expanded colonies, most British dependencies did not allow trial norms? Given that the data-collection is still at an early est groups, with attempts made to mobilize popular the Court’s constitutional review powers, reduced size by jury. With its subversive potential, the jury bestowed stage, the presentation will focus on methodological support and opposition. This process has been widely from 26 to 11 justices established a 15-year fixed-term far too much power in the hands of the colonized and and conceptual questions. criticized, at least outside the United States, because in office, and set a new appointment method combin- thus posed a significant threat to colonial rule. Though it dissipates what is thought to be an appropriate focus ing elements: three-member shortlists, presidential sometimes willing to employ hand-picked assessors Tanya Hernandez: Racially-Mixed Personal on the nominees’ legal qualifications. Until recently the nomination and senatorial confirmation. In the pe- or local magistrates to bestow legitimacy upon an im- Identity Equality Canadian nomination process was quite opaque. Re- riod 1917-1994, the rotation in the Court’s member- posed legal order, juries for non-Europeans were rarely A growing number of commentators view discrimi- cent developments in Canada have made the process ship reached an average of 2.6 appointments per introduced. Yet considering the place of the right of nation against multiracial (racially-mixed) people as a somewhat more transparent without -- or so it seems -- year. Conversely, since the enactment of the 1994 trial by jury in American Constitutional history, it re- distinctive challenge to racial equality. This perspec- adverse effects on the attention given to the nominees’ judicial reform, 23 justices have come to the bench, mains puzzling why a similar right was not introduced tive is based on the belief that multiracial-identified legal ability. The difference between the processes including the 11 appointed in 1995. Certainly, for the in other former colonies after they gained indepen- persons experience racial discrimination in a manner may result from the fact that the Canadian initiatives first time in the Mexican history, the membership of dence. By exploring debates around the adoption of that judges steeped in binary “colonial” construct of are relatively new and may evolve in the U.S. direction the Supreme Court remained unaltered for an eight- the jury in Israel, India and Cyprus, this paper analyzes race cannot comprehend. I dispute that premise and as they are implemented, or from the fact that the new year period (1995-2003). And, besides, along the last the post-colonial rejection of the jury. I argue that the deconstruct its Personal Identity Equality approach to Canadian process, while more open than in the past, two decades all the vacancies have resulted from ei- concept of an independent judiciary, robust as it may anti-discrimination law and demonstrates its ill effects remains rather tightly confined, or from differences in ther the conclusion of the appointment period or the be in some former colonies, is nevertheless restricted reflected in Supreme Court affirmative action litigation. the U.S. and Canadian political-legal cultures. death of a sitting justice What factors could explain by the colonial legacy of a hierarchical judiciary re- this unprecedented stability? The sociolegal litera- sponsible and often deeply intertwined with the other Micaela Alterio and Roberto Niembro: Bolivia ture on Mexican judicial politics has flourished along branches of government. judicial elections the last two decades. Judicial selection, however, has The Bolivian procedure for appointing judges of the remained a topic dominated by legal academia. This Mathilde Cohen: Courts in Overseas French Ter- Constitutional Court changed with the 2009 Consti- scholarship has arrived to insightful conclusions that ritories: (Post-)Colonial? tution. Before the constitutional reform, law faculties, stress the perverse incentives set by the current rules Contemporary France maintains a court system bar associations, and Justice Department proposed that allow the president to have a major control over outside of the European continent in eight “overseas” a list of candidates to a Congress Committee that appointment processes. Nonetheless, it has not pro- regions such as Martinique, Réunion, French Guiana, organized a public contest based on merits. Then, five vided persuasive explanations of why, for instance, and New Caledonia. Held as colonies until the 1940s, judges were selected by two-thirds of the members the Senate has rejected the first presidential shortlist these territories became part of the French state with present of both chambers. Since 2009, the judges in four out of the last twelve process. The purpose of varying statuses and degrees of autonomy. Based on are elected through universal suffrage, from 28 can- this paper is, instead of analyzing the effects of judi- qualitative research, I show that the French overseas didates designated by two thirds of the present mem- cial stability or focusing on the appointments legal courts remain subject to colonial mechanisms of con- bers of the National Assembly, among candidates that framework, to explore what the factors have promoted

Concurring panels 186 Concurring panels 187 such unprecedented stability in the Supreme Court by 110 lAW and Cities of privately-owned land are also included. The City Malcolm MacLaren: Been there done that’: on empirically researching the appointment processes of Johannesburg embarked on a project to develop best practices in urban policy-making in the period 1995-2015. In particular, this paper is In our panel we wish to discuss various aspects re- ‘Corridors of Freedom’ by means of which it is making Urban areas in the Global South have been the interested in examining the role three factors played lated to the relation between law and cities, a field that a decisive turn towards a low-carbon future with eco- subject of extensive research, inter alia as settings in such processes: a) presidential anticipation; b) leg- is attracting increased attention from public lawyers efficient infrastructure that underpins a sustainable for group conflict and as sites for related governance islative composition; c) nominees profiles. I order to across jurisdictions. The panel will discuss four papers environment. The city developed new spatial plans efforts. Experts have studied the dynamics of violent attain this objective this study will conduct a revision by Anél du Plessis, Michéle Finck, Malcolm MacLaren, in line with Joburg 2040 the Growth Development conflict, peace-building, and state-building in this of each process that led to the appointment of a new and Josephine van Zeben. Janne Nijman will be com- Strategy based on transport-orientated development. context as well as the conflict management strate- justice employing process-tracing as its main meth- mentating on the papers. The shape of the future Johannesburg will consist gies of authorities in particular areas. On the basis odological tool. of well-planned transport arteries – the Corridors of of these comparative studies, policy initiatives have Participants Anél du Plessis Freedom – linked to interchanges where the focus been proposed to meet challenges of urbanization Michéle Finck will be on mixed-use development. The eThekwini and urbanism in developing countries. It is argued Malcolm MacLaren development has been contested in court on the that government according to fundamental principles Josephine van Zeben basis of the alleged limited environmental author- of subsidiarity and democracy is the most effective in Moderator Janne Nijman ity of city governments. The City of Johannesburg’s mitigating tensions, and calls are commonly made to Room 8A-2-27 undertaking has not been the subject of specific liti- follow ‘best practices’ of political decentralization and gation but the development may be seen as a posi- popular participation amid urban transformation. My tive response to the strong message of the courts in paper will question the value of this research when (re-) Anél du Plessis: Legally Constructing the earlier judgments against the City related to forced forming urban governance. How insightful and use- Spaces We Want: The Tale of Two South African evictions, access to housing and access to sufficient ful are such recommendations in fact? (Basic doubts Cities water. With reference to real and promising examples arise: e.g. can different urban areas be meaningfully The recently adopted Global Sustainable De- from the cities of Johannesburg and Durban in South compared; can independent variables in the success velopment Goals (SDGs) includes a distinct goal Africa, this contribution critically analyses the im- (or failure) of different strategies of conflict manage- dedicated to cities. A couple of months after its re- portant role of domestic courts in the interpretation ment be reliably identified; can one area’s success be lease, the United Nations’ (UN) New Urban Agenda and protection of the power of city governments to legally engineered in a different area?) I will conduct a was adopted. While urbanisation is celebrated for progressively guard over spatial planning as part of case study of Habitat III’s New Urban Agenda as this its potential to make cities more prosperous and to the pursuit of SDG 11. concerns recommendations about urban government. kindle development, many cities of the world have My thesis is that the extent to which urban areas are been described as being “grossly unprepared for Michéle Finck: The Urbanization of European able to – and should actually – ‘learn from each other’ the multidimensional challenges associated with Union Law in their policy-making is significantly less than experts urbanisation” (UN-Habitat 2016: 5). South Africa is This essay explores the relationship between presume. What seems a more promising strategy is for no exception in this regard as it stands challenged European and urban citizenship by focusing on the authorities in the Global South to engage in individual by the apartheid legacy of poor urban planning and European Citizens’ Initiative. The first supranational experimentation in coping with challenges of urban unprecedented levels of urbanisation. In response instrument of direct democracy, inaugurated by the transformation: these should recognise the singulari- the national government adopted its new Spatial Treaty of Lisbon in order to directly involve European ties of their urban areas and seek to develop their own, Land-use Management Act in 2013 and an Urban citizens in the EU legislative process, allows at least possibly unique, governance arrangements. Development Framework in 2016. The national law one million citizens from at least one quarter of all and policy framework liberally calls for spatial justice Member States to suggest legislative change to the Josephine van Zeben: Local Citizenship in the and spatial sustainability. For the first time, promi- European Commission in its role as the of initiator of European Union nent links are drawn between core principles of en- supranational legislation. While the ECI Is still in its Local governments in the European Union act as vironmental law and spatial planning law as far as it infancy years, it could have potentially far-reaching democratic conduits and service providers for resi- concerns urban development specifically. While the consequences for the nature of the EU and its leg- dents – national citizens, EU citizens and third coun- national government has been paving the way at the islative procedure, the relation between citizens to try nationals alike. The ability of local governments more conceptual policy level, two city governments the Union and to another, and the nature of European to fulfil both these roles depends primarily on their in South Africa recently took the bold step to actually citizenship. This short essay makes the point that the legal form and status, which in turn is determined by use its planning powers towards transformation of the emergence of the European Citizens’ Initiative could the constitutional arrangements of their respective kind envisaged in a) the SDGs and the Vision 2063: however also come to influence the relationship be- Member State. This paper considers to what extent the Africa We Want; b) the environmental right in the tween local communities and the European Union. The EU citizens are able to rely on their citizenship rights at Constitution of the Republic of South Africa 1996 and argument that will be made is that there are numerous the local level with respect to these two roles, and what c) the framework environmental legislation of South incentives for local communities and their representa- the legal sources for divergence might between local Africa. The eThekwini Metropolitan Municipality (Dur- tives to become involved in the ECI mechanism and governments. It does so in order to assess whether ban) developed a D’MOSS which stands for the Dur- such involvement could transform the nature of the EU citizenship affects the centrality of the nation ban Metropolitan Open Space System. D’MOSS is a ECI but also the nature of the interaction between state with respect to citizenship: i.e. are local rights system of open spaces some 74 000 ha of land and the local and the supranational. This argument will still anchored in national citizenship or has European water, that incorporates areas of high biodiversity val- be structured as follows. Our analysis will open with citizenship started to trickle down to the local level? ue linked together in a viable network of open spaces. an overview of the notion of European citizenship and The paper focusses on three specific case studies – Examples of areas included in D’MOSS are nature of the ECI. We will subsequently survey the first suc- London, Amsterdam and Berlin – each operating within reserves, large rural landscapes in the upper catch- cessful European Citizens’ Initiative, which pleaded a distinct national framework with various levels of ments and riverine and coastal corridors. Some areas for a ‘right to water’. local autonomy.

Concurring panels 188 Concurring panels 189 111 lAW and… Everything: rights. It is assumed that perfectionist political theory, 112 The “Status” of Social social rights and principles. Even though in many cases Interdisciplinary which focuses on the collective good individual rights Rights Protection in Europe: the challenged cuts were of similar nature, the courts’ Perspectives on Courts are grounded in, can serve as metha-judicial tool in Perspectives and Challenges reasoning and verdict varied significantly. My paper aims, three ways. First it is argued that the recourse to con- first, to present the case-law of the Portuguese and The traditional doctrinal approach to the study of siderations of political theory can in some but very rare The Panel deals with a highly debated issue in Europe: Greek courts related to austerity measures, especially courts is no longer dominant. The new paradigm is instances, change the outcome of a case. Second, and the status of social rights protection in Europe after the underlining its evolution throughout the crisis years. Sec- interdisciplinarity. But as the field has ventured into grounded in the assumption that courts do not only Eurozone crisis, which highlighted the flaws of the EU ond, the paper will critically analyse the legal grounds the uncharted territories of interdisciplinarity, it has be- exert influence on society by the outcome of a case social model. Antonia Baraggia and Anastasia Poulou and arguments on the basis of which restrictions on come more and more limited to a specific method. In- but by the reasoning underlying the outcome, it will will address the issue of social rights protection look- social rights were assessed. Lastly, the question will be terdisciplinary approaches have themselves become be shown that political theory can provide normative ing at the case law of national supreme courts during tackled whether in times of crisis the judicial protection inward-looking and in a sense disciplinary. This panel guidelines for the choice of a court’s rationale. Third, it the Eurozone crisis. Colm O’Cinneide will address the of social interests is better achieved on the basis of so- seeks to examine the frontiers of the interdisciplin- is argued that political theory can assist courts when the limits and the potential of European Social consti- cial rights or of civil rights and general principles of law. ary study of courts. It aims to bring into conversation having to decide whether a case should be resolved tutionalism. Zane Rasnača and Michael Ioannidis will three different approaches to the research of courts in favor of individual or public autonomy. In this sense, look at the CJEU case law with regard to the European Colm O’Cinneide: The Limits and Potential of and adjudication – which combine legal research criteria will be developed which allows the Court to Social Pillar (Rasnača) and to the Judicial review of European Social Constitutionalism with insights from social sciences political theory and decide when to be the guardian of individual autonomy economic policies (Ioannidis). Many European constitutions expressly affirm that metaphysics – and seeks to discover possible venues and when to respect the diverse cultures traditions, they are ‘social states’ (Soazialstaat in the German for a more comprehensive understanding of courts, and values predominant in European Member States. Participants Antonia Baraggia constitutional terminology) and/or contain lists of fun- one that would transcend the new interdisciplinary Anastasia Poulou damental social rights or directive principles setting fault lines. The purpose is two-fold: first to present Jan Zglinski: Measuring Judicial Activism: An Colm O’Cinneide out social goals to which state policy should strive three different approaches to the study of courts, and Empirical Analysis of CJEU Jurisprudence Zane Rasnača to give effect. The EU constitutional framework also second to initiate a discussion about possible ways of It has become a commonplace to say that the Michael Ioannidis recognises the fundamental nature of social rights. engaging in a dialogue across interdisciplinary lines. Court of Justice of the European Union has constantly Moderator Bruno De Witte However, the constitutional protection of social rights ‘seized the opportunities presented to it to enlarge its Room 8B-2-09 in Europe remains limited and uncertain in scope – as Participants Bosko Tripkovic jurisdictional authority and power’. This is the narra- exposed by the ongoing austerity crisis, which has Sabine Mair tive of judicial activism. Few, if any, observations have exposed the thinness of European social constitu- Jan Zglinski produced such an overwhelming consensus in EU Antonia Baraggia: Judicial “Activism” in Time of tionalism at both the national and supranational level. Moderator Urška Šadl legal scholarship, beyond the traditional frontiers of Economic Crisis: a Comparative Overview This is not to dismiss the value of the limited degree Room 8B-2-03 euro-sceptics and euro-enthusiasts. The paper seeks “Juristocracy charges cannot be the same in times of social rights protection that exists in European to challenge this consensus, drawing on an empirical of EU sovereign debt”: starting from this assumption constitutional systems. It gives symbolic affirmation study of free movement case-law. The analysis covers (Kilpatrick 2015), this paper deals with the Courts’ ap- to the role of the state in securing ‘social citizenship’ Bosko Tripkovic: Should Judges Know Metaethics? 250 judgments from 1974 until 2013. The data expose proach to social rights violation in time of economic cri- and sensitises legal systems to the existence of this The paper explains the relevance of metaethics some fundamental changes in the review behaviour sis. The paper aims at addressing such a claim through necessary social dimension. It also opens up room for for constitutional adjudication. First, it rejects the no- of the Luxembourg Court since the 1970s. Contrary a comparative analysis of the national constitutional courts to interpret concepts such as dignity and equal- tion that metaethics is irrelevant for judicial decision- to the activism tale, the CJEU’s jurisprudence is ever- courts’ case law on social rights protection during the ity with reference to the ideal of ‘social citizenship’, to making. In contrast to some of the existing approaches, more marked by self-restraint, a development which Euro-zone crisis. The paper will compare the case law read legislation in a socially protective manner, and to the paper maintains that metaethics is not reducible manifests itself in two ways: (1) the Court increasingly of Supreme Courts of bailout states (Portugal, Romania, develop the type of ‘baseline standards’ jurisprudence to normative ethics and that disagreement does not avoids interfering in the policy choices of national leg- Latvia, Greece) with the case law of the Constitutional that is exemplified by the Hartz IV judgment of the make metaethical questions immaterial. Second, the islatures; (2) it passes more and more review duties Courts of no bail-out states (Italy), in order to assess German Constitutional Court. However, beyond that paper argues that metaethical questions are unavoid- onto national courts. the role played by external influences (i.e. conditional- European social constitutionalism lacks substance. able and allow for a more complete explanation of ity, ECB letters, balance budget rules) on the Courts The task that thus faces those interested in putting constitutional adjudication. It contends that metaeth- balancing between the needs of the public interest flesh on the bones of European social constitutional- ics is empirically and analytically implicated in the way and fundamental constitutional rights. The paper will ism is to roll their sleeves up and start defining what constitutional courts use value-based arguments and address the Courts’ attitude in the light of the peculiar exactly constitutes the substantive content of social that incorporating metaethics into the understanding political and institutional context of the Eurozone-crisis rights in the European context. In so doing, there is a of constitutional adjudication enables us to better ac- where the protection of social rights – often guaranteed need to be aware both of the potential and limits of count for the entirety of our ethical experience in this by national constitutions – is challenged by the eco- the social constitutionalist project at large. domain. Third, the paper argues that thinking about nomic conditions negotiated by national executives constitutional adjudication from the perspective of and international financial institutions. Zane Rasnača: “Finding CJEU” – Tracing the ju- metaethics is fruitful. Metaethical explanation of con- dicial influence on the European Pillar of Social stitutional adjudication sheds new light on some of the Anastasia Poulou: The judicial protection of so- Rights pressing constitutional questions and points to new cial rights in times of crisis. The Portuguese and What does the European Pillar of Social Rights (Pil- ways of resolving them. Greek example lar) have to do with courts? Apparently, almost noth- The public debt crisis in Greece and Portugal re- ing. At least according to the European Commission’s Sabine Mair: Can Political Theory Alter Judicial sulted in severe cuts on social expenditure and suc- outline for this brand new project published in spring Reasoning? cessive restrictions on social rights. The Portuguese 2016. While so far it has been left partially unclear what The paper explains how political theory can be Constitutional Court and the Greek Council of State have exactly this “European Pillar of Social Rights” will be valuable for courts, in specific the Court of Justice of been repeatedly confronted with the legal assessment (“an expression of [...] principles”, “a framework of prin- the European Union, when adjudicating on individual of the austerity measures and their compatibility with ciples”, “a reference framework to screen [...] perfor-

Concurring panels 190 Concurring panels 191 mance”, “a policy compass”), it is even less clear what 113 T HE CHANGING NATURE OF THE tion of these actors in an evolving global society. The global level in the International Council for Harmonisa- will the role of the CJEU’s case law be in this social PUBLIC ADMINISTRATION: WHAT paper therefore has a dual objective. First, it purports tion (ICH). Therefore, it will examine the co-regulatory rights’ project. The two explicit references to the CJEU ROLE FOR JUDICIAL REVIEW? to unveil the most relevant typology for legal research role of the pharmaceutical industry through analysing that we find in the initial working documents of the on anti-doping actors. Second, it investigates the tech- the ICH membership structure, funding, institutional project are: first, a pledge that its case-law will serve Nowadays, a complex and challenging transformation niques that nation states apply to introduce norms of structure and decision-making process. In this regard, as one of the starting points for the Pillar, and second, is putting into question the essence of administra- these actors into the national legal order. This second the article shows that although the private power in a visionary statement that the Pillar could be built upon tive law. In its main facets, it shows that the public objective is elucidated by three viewpoints. In the first, the standard-setting process within the ICH has been the “common values and principles” featured in the ref- tasks are shared between public and private actors, the question arises as to which transnational norms subject to incisions in the recent past, the pharma- erence documents, such as the case law of the CJEU. that the divide line between administration market bind nation states. Also the enforceability of these ceutical industry still exercises significant influence The rest of the preparatory documents, while they might and society is no longer clear, and that the general norms depends on the chosen techniques. Finally, on the standards set within the ICH. While the inte- be indirectly inspired by some aspects recognised in principles of administrative law – such as public ac- the present study elaborates on how constitutional gration of private actors in regulatory bodies is often the Court’s case law, do not reveal any direct judicial countability, proportionality, legitimate expectations principles, such as democracy and legality, may influ- motivated by the know-how provided especially by influence and references to the standards developed and the likes – are, at best, challenged. In light of this ence the techniques that legislatures select to impose the regulated industry, it raises concerns with regard by the CJEU are suspiciously absent. This paper will transformation, two questions become central: 1) anti-doping rules. We extrapolate global findings by to the legitimacy of the standards set. Therefore, in a explore the role of the CJEU in the Pillar project (the are the current paradigms of administrative law still drawing on an extensive case study. Within the Flem- second step the article highlights the challenges that complete initiative of which is due in March 2017) and suitable for encompassing instances where private ish framework of anti-doping legislation and of anti- can arise out of the involvement of the regulated indus- build a case for one. While at the moment both the parties (co-)exercise public functions?; 2) how and doping implementation, we assess a particular case try in the standard-setting of the ICH for the EU as an final form and content of the Pillar are unclear, it seem to what extent do classic mechanisms of judicial re- in point. Flanders tends to hold the middle ground as implementing regulatory system which places a great reasonable to argue that it will likely serve as a sort of view secure the accountability of these new types of opposed to more extreme approaches of other Bel- emphasis on the independence of its administration. “social REFIT” for the EU social acquis. Also the Com- administrative action, while preserving the effective gian regions or neighboring countries. The study first Thus, the article shows that the role of private actors mission’s Work Programme for 2017 seems to suggest exercise of public tasks? The proposed panel aims shows that the traditional ‘summa divisio’ between in the setting of global standards becomes problem- that the Pillar will play such a role. I take the idea of at tackling these topical questions. It does so by criti- public law actors and private law actors is to no avail atic when the standards are received in a regulatory the Pillar as some sort of a wetting framework (to an cally analyzing case studies at international European in the field of anti-doping law with hybrid actors that framework that positions regulatory power firmly in the extent similar to the REFIT) and argue for a necessity national and subnational levels. This exploration is combine both public and private features. Contrary to hands of independent public authorities. of explicitly accommodating the role of the CJEU’s urgently required to define the applicability of general existing literature, this paper distinguishes between case law in the construct of the Pillar. While it has been principles of administrative law to hybrid institutions politically accountable actors (such as the legislature Steven Van Garsse and Yseult Marique: Public apparent for years that the policy developments at the as well as the scope and standards of judicial review and the executive) and non-politically accountable ac- contracts in European infrastructure projects – EU level are often affected by the judicial outcomes, applicable to such innovative administrative actions. tors (such as the majority of anti-doping actors). Sec- Revisiting administrative law values and indeed the ‘social’ area of EU law is an area whose ond, this study has brought to light which instruments EU law is increasingly defining principles (competi- development has to a large extent been facilitated and Participants Cedric Jenart are most popular and effective in order to transpose tion equality transparency proportionality) applying on even triggered by the Court, so far the EU institutional Sabrina Wirtz transnational anti-doping norms. In Flanders, the bal- the ways in which public bodies may use their purchas- framework fails to accommodate the case law in a Steven Van Garsse and ance between national sovereignty and international ing powers (2014 EU directives on public procurement meaningful way resulting in legal uncertainty and even Yseult Marique compliance is struck in particular by the method of and concessions) in the market to buy goods, create obstruction of EU level law-making process. I will look Mariolina Eliantonio dynamic referrals to transnational norms. The article infrastructure and provide services for their citizens. at the (potential)‚“judicial” role in the Pillar project and Javier Barnes and concludes that even though various methods exist Traditionally, administrative law in Member States pro- will construct an argument for the instrumentalisation Alicia Isabel Saavedra-Bazaga for complying with transnational anti-doping rules vided a framework to this kind of relationships. For of the judicial element in this new framework. Carlo Colombo constitutional principles – as interpreted by national instance, France and Belgium developed an exten- Moderator Carlo Colombo and courts – limit the freedom to outsource powers to non- sive “state-centered” administrative law framework Michael Ioannidis: Judicial review of economic Mariolina Eliantonio politically accountable actors. to allocate define and control such a use of public policies: the CJEU as adjudicator of EU eco- Room 8B-2-19 power, where public interest prevail over private con- nomic governance Sabrina Wirtz: Independence under threat – the cerns. England and the Netherlands developed a more During the Eurozone crisis, the Court of Justice role of private actors in the setting of global liberal tradition putting public and private powers on of the European Union had to review some of the Cedric Jenart: The Legal Status of the World- pharmaceutical standards and resulting chal- a relatively equal footing. The current European de- complex economic arrangements that the Member Anti Doping Agency and the Implementation of lenges for European public law velopments strongly challenge both kinds of national States and the EU institutions devised to save the euro. its Norms in Flemish Law The International Council for Harmonisation of tradition: they mix techniques protecting domestic Several cases landed to the Court either via prelimi- Sports have been famously described as ‘the Technical Requirements for the Registration of Phar- public interests with techniques encouraging eco- nary reference from national courts or via direct action world’s most significant insignificance’. However dop- maceuticals for Human Use (ICH) has established itself nomic interests without articulating clearly the rela- against EU institutions. From Pringle and Gauweiler to ing compromises the functions of sports because it as the prime source of global standards in the field of tionships between the two. Yet, the recent economic the recent judgement in Ledra, the Court had to review threatens fair play, the spirit of the sport as well as pharmaceuticals regulation. The ICH is established as crisis highlights a double need for any democratically some of the basics of the new Eurozone architecture. the athlete’s health. Anti-doping legislation has been a Swiss association but essentially forms a hybrid pub- elected government: 1) better coordination of econom- Together with earlier pronouncements regarding the receiving increasing attention in worldwide legal schol- lic-private partnership consisting of representatives ic and public powers and 2) organizing how citizens Stability and Growth Pact, these cases now offer a arship. Still, little scholarship has stretched beyond of regulatory authorities as well as representatives and service users have their say in how public power is significant corpus of case-law regarding the stance merely describing the World-Anti Doping Agency and of pharmaceutical industry associations. This article exercised in economic matters. This paper will analyze of the Court towards economic decisions taken at the the national implementation of its rules. At most anti- examines the complex interactions between public how the conceptual and technical changes emerging EU level. This paper asks whether there is an emerg- doping law is seen as an example of transnational regulators and private interest representatives in the from European major transport infrastructure projects ing pattern regarding the intense of judicial scrutiny or global law that is not tied by national boundaries. regulation of pharmaceuticals, providing evidence of a in the UK, France and Belgium challenge the classic of economic policies exercised by the CJEU. Has the Furthermore, previous studies categorize anti-doping blurred delimitation between public and private power administrative law values and the role of the lawyers Court devised a standard of review calibrated to the actors as private, public or hybrid actors. None of these in the setting of quality, safety, and efficacy standards. to ensure their compliance. The current disintegration nascent European economic governance? denominations contributes to the debate on the func- It closely analyses the setting of such standards on the of the law under the pressure of socio-economic and

Concurring panels 192 Concurring panels 193 political concerns call for reimagining administrative than to replace the private law with rival legal norms. 114 The Role of “External” in Miller. The main argument of this paper is, however, law, so as to find new strategies to articulate public Part I briefly explores these emerging new domains, Normative Sources and that even though the judges emphasize the UK’s dualist procurement requirements with public participation and Part II specifically focuses on those areas that are Perspectives in Safeguarding legal nature throughout the judgment, their language requirements, to the benefit of the common good. dominated by non-governmental actors (the “public Constitutional Orders belies this very nature, as it is covertly monist. While life” of private actors), or by administrations acting the European Communities Act 1972 (ECA) ‘gives effect Mariolina Eliantonio: How much “public law”is under private law (the “private life” of public adminis- The proposed panel will bring together scholars with to EU law it is not itself the originating source of that there in the European standardization? The le- trations). Finally, Part III summarizes some preliminary specialisms in Public Law, EU Law, Public International law’. Rather, EU law is ‘an independent and overriding gal nature of standards the applicability of the features of new administrative law dealing with these Law and International Human Rights Law to deliver source of domestic law’ [para. 65]. Therewith, the Su- principles of administrative law and the possi- new scenarios. When I refer to private bodies or to papers which will evaluate the themes of representa- preme Court seems to confirm its acceptance of the bilities of judicial review non-state actors in this chapter, I mean certain specific tive democracy, constitutional equality, accountability supremacy and direct effect of EU law. It is of course This contribution will analyze one specific case of non-governmental entities, such as professional asso- for State-sponsored wrongdoing in extra-territorial true that this state only lasts as long as Parliament co-regulation, namely that of European standardiza- ciations with self-regulatory regimes, standard-setting settings, and the adjudication of extra-territorial hu- wishes, but it makes one crucial point even clearer: tion. Born out of the need to ensure the completion of bodies, credit rating agencies, unions, or companies man rights violations. For this purpose, the proposed repealing the ECA without concurrently withdrawing the internal market, European standardization is still in regulated sectors that provide services of general papers will draw on a range of sources emanating from from the EU entails the UK’s breach of obligations un- a very common regulatory mechanism and its use interest. a number of jurisdictions, including the recent deci- der EU law for which it can be held responsible (e.g. has being reinvigorated by the 2003 Interinstitutional sions reached by the UK Supreme Court; the French through infringement proceedings under Article 258 Agreement on Better Law-Making and the latest Better Carlo Colombo: The advent of the collaborative Constitutional Court and the EU Courts. The broad aim TFEU). This means, alternatively put, that it is the EU Regulation Agenda. While the involvement of private state: towards a new paradigm for the law on of the proposed panel is to discuss how we can im- legal order which has the last say in the case of nor- parties in EU administrative governance has the clear administrative procedures at subnational level prove our understanding, and awareness, of the ways mative conflict, and that as long as the UK remains a advantage of delivering policies which are based on In many policy areas at urban and regional level, in which courts harness, or fail to harness, ‘external’ member of the Union, it is part of a monist system with the expertise of the regulatees themselves, private- new ways of taking decisions are developing. Due to normative sources and institutional sites of action in the EU on top in terms of normative hierarchy. On the party rule-making raises significant concerns in terms current developments, such as privatization of public an effort to provide principled coherence when reach- other hand, withdrawing from the EU while retaining of its legitimacy. In particular, not only can the involve- tasks, globalization of national markets, and the in- ing decisions of major constitutional significance. It is the ECA does not perpetuate or safeguard the cur- ment of private parties in EU decision-making be ques- creased complexity of societal problems, collaboration anticipated that the issues explored in the diverse, but rently existing rights under EU law for UK residents if tioned from the perspective of compliance with the between public administrations and private actors is interconnected papers included in the proposed panel there is no relevant agreement with the EU clarifying Meroni doctrine, but also from that of the existence of increasingly replacing hierarchical decision-making. will provide the basis for a stimulating and rewarding this aspect. Thus, an important consequence of this an adequate set of control mechanisms to review the Indeed, collaboration is said to promote experimenta- discussion for all those ICON conference delegates concealed monism is that a loss of this source of law legality of the actions taken by private parties as ad- tion and improve knowledge, thereby leading to more participating in the proposed session. would also remove some existing domestic rights of ministrative rule-makers. This contribution will address effective solutions for complex problems. These new UK residents stemming from EU law, which makes it the question of the existence of a sufficient degree of forms of cooperative decision-making are espe- Participants Paul Gragl impermissible for the executive to withdraw from the control on the process of European standardization cially proliferating in regional and urban areas, due Thomas Poole EU Treaties without prior Parliamentary authority. This by first questioning the legal nature of the standards to the close proximity of all actors in the same area. Stephen David Allen is the point where the real power of the Supreme Court created through the process at stake. In particular, In addition, contrary to the global and European lev- Moderator Mario Mendez comes to the fore, namely in its strengthening of repre- it will be question whether these standards qualify els, mechanisms of collaboration in public decision- Room 8B-2-33 sentative democracy and by externalizing it: the execu- as “public law acts” both on the European and on the making within urban and regional environments are tive’s treaty-making power certainly remains unaffected national level. Secondly, the contribution will consider embedded in a sub-layer of administrative law rules and non-justiciable. Yet what Miller demonstrates is to what extent the standards respect or ought to re- and procedures, which in turn inhibit or – even worse – Paul Gragl: Concealed Monism in the Supreme that if an international treaty bestows rights to indi- spect general principles of (European) administrative do not take into consideration the quest for collabo- Court’s Judgment in Miller: Externalizing Rep- viduals through the conduit of domestic law, the treaty- law. Finally, the contribution will address the question ration. This apparent contradiction between existing resentative Democracy unmaking powers of the executive under the Royal of which form and degree of legal protection (both at rules and the reality of the exercise of powers boils The constitutional law implications of the Supreme Prerogative are severely restricted and consequently European and at national level) is available against down to one main questions: how can administrative Court’s judgment in the Miller case on the United King- require prior action by Parliament. In this vein, individu- the standards. law transform its essence to foster effective public- dom’s planned withdrawal from the European Union are als are regarded as subjects of international law and private collaboration? The paper will therefore examine conspicuous and thus already under close scrutiny by the fact that domestic implementation is required for Javier Barnes and Alicia Isabel Saavedra-Baza- the role of administrative law in promoting effective constitutional lawyers. In contrast to these questions, giving effect to a certain treaty is only a technicality of ga: New Frontiers of Administrative Law collaboration between stakeholders in the exercise of this paper intends to look beyond the domestic legal UK constitutional law. What is more important is that A Functional and Multi-Disciplinary Approach Pri- public functions in two specific areas of subnational ramifications of the judgment and to focus on its more representative democracy has been externalized to vate Life of Administration Public Life of Private Actors governance: urban planning policies and regional ‘exotic’ aspects, namely the external or international law the international level and that only Parliament can This paper is focused on those private bodies without innovation policies. In both areas, practices such as perspective of Miller and its impact on representative take away rights which have been granted by interna- position of formal executive power that are being and participatory decision-making and triple helix collabo- democracy. In accordance with the overall theme of tional treaties. Accordingly, the same conditions will must be increasingly subjected to higher duties and ration have emerged; both areas also manifest the this conference this paper will therefore examine the apply if the Government plans to withdraw from the principles, in that they affect members of the public to limits of administrative law and the problems thereof. Supreme Court’s power in (re-)considering the relation- European Convention on Human Rights, as then the a significant degree; private bodies which in addition The paper argues that, to cope with these institutional ship between domestic and international/EU law, and Human Rights Act of 1998 – similarly giving rights to work closely with administration, that is, in a collab- innovations, a new paradigm for administrative pro- how this (re-)consideration safeguarded Parliament as individuals – will have to be repealed. orative and networked environment. Regarding the cedural rules that takes into consideration the quest an institution of representative democracy. To begin private and public law relationship, I argue the need for good collaborative governance is strongly needed. with, the relationship of the UK’s domestic legal system Thomas Poole: Act of State in Common Law Courts for collaboration, and, more specifically, for the inter- with international law in general and EU law in particular Act of State doctrine precludes challenges to the nalization of public values and norms into private law, is of special interest. Traditionally, the UK system is legality or validity of certain sovereign acts. It can serve when “administrative” action is performed. It is about seen as deeply dualist, which – at least prima facie – to shield serious improprieties. It performs something to “infuse” the private law with public law values rather also appears to be confirmed by the Supreme Court of a gatekeeper role. Janus-like Act of State is sourced

Concurring panels 194 Concurring panels 195 in domestic constitutional principle but looks outwards nocent nec prosunt (Art. 34). Finally, it held that the de 115 The role of courts and with formal and informal constitutional change and to international law private and public. Act of State facto application of the Agreements to products from (il)liberal democracy packing the constitutional court. We also perceive in cases raise questions of considerable constitutional Western Sahara was not legally relevant because the which the illiberal constitutionalism is theorized by a significance. Requiring courts to draw the ambit of Council and Commission were under an erga omnes Looking into various regional settings, the panel aims misunderstood political constitutionalism and con- legality in respect of non-domestic acts, it raises with obligation to respect the Sahrawi people’s right to self- at expounding on the constitutional framework for a stitutional identity. These steps are consecutive, thus unusual starkness fundamental moral and legal ques- determination as a matter of EU/International Law. To democratic rule. Yet, it is not limited to the legal per- not the interchangeable result of a slow development. tions – ‘legal black holes’‚ ‘anomalous zones’, and the this end, it noted that such activities did not amount to spective only. The liberal or illiberal shape of democ- Co-author: Agnieszka problem of ‘geographic morality’. The answers to such a subsequent practice which revealed the agreement racy is mostly a political choice. Moreover it calls for questions tell us a great deal about the moral health of the parties as to the correct interpretation of the EU/ an inquiry into the social sciences or even social psy- Agnieszka Bień-Kacała: Recent systemic devel- of a political community and often glimpses into the Morocco Agreements (under Art. 31(3)(b)). The Polisa- chology. The comparative analysis will cover national opments in Poland and Hungary strengths and weaknesses of international juridical rio decision does not augur well for the outstanding and regional Hungarian and Polish (CEE) and Kenyan, In the paper, using the example of Poland and Hun- order. The heightening of international cooperation, preliminary reference in R (Western Sahara Campaign Tanzanian and Uganda’s (East African) experiences, gary, we will depict how constitutions may be ‘captured’ especially in security matters, has made this area UK) v HMRC/ Secretary of State for the Environment where the liberal democratic principles are making and ‘used’ by political decision-makers to fulfil their of law both more important and more complex. This [2015] EWHC 2829 (Admin) which concerns the legal- progress and experiencing setbacks at the same political agenda. These states have been turned from paper focuses on a trio of 2017 UK Supreme Court ity of fisheries activities carried out by EU vessels in time. This is a reason why the court decisions at any a constitutional democracy to something else, which cases – Belhaj Rahmatullah and Al-Waheed – all of waters adjacent to Western Sahara, which are claimed level: national (supreme courts of Kenya, Tanzania, and is described by many scholars as illiberal, authori- which relate to post 2001 overseas security opera- to be within Morocco’s sovereignty or jurisdiction un- Uganda, Hungarian and Polish constitutional courts) tarian, semi-authoritarian regimes, lands in-between, tions. The cases raised allegations of rendition torture der the EU/Morocco Fisheries Partnership Agreement regional (East African CJ) supranational (CJEU) and democracies in crisis. Publicists and academics have and arbitrary detention either against the UK either for 2006 (and its 2013 Protocol). This paper will examine international (ECtHR) are worth examining. Taking a already explained, but only partially from the constitu- taking such actions in its own right or else for assist- the resource rights of the Sahrawi inhabitants of this comparative and multidimensional approach will en- tional law perspective, what factors and in what way ing another state in so doing. To enable us to unpick Non-Self-Governing Territory as part of their wider en- sure that the panel findings will provide for insights have led to this crisis. Against this background, we remarkably intricate judgments, and to generalize from titlement to self-determination before establishing the not only into the constitutional reality, but also into its conceptualize how constitutional mechanisms were them, the paper casts a comparative eye at Act of obligations imposed on the EU institutions and Mem- legal, political and social underpinnings. Scholars will abused in a different way by Poland and Hungary and State and sovereign immunity cases in partner juris- ber States, as a consequence. It will then consider the address the fundamental questions (liberal/illiberal yet, how they could have the same effect, i.e. shaping dictions, notably Khadr in Canada and the Australian extent to which the EU institutions are under a duty democracy, rule of law, and human rights) as well as an illiberal constitutionalism. In our view, both the Pol- case Habib and Moti. to interpret the EU Charter on Fundamental Rights some specific issues ,notably referendum and emer- ish and the Hungarian constitution and constitutional- in ways that facilitate the application of peremptory gency powers. ism are captured by the leading political parties. The Stephen David Allen: Adjudicating External Hu- norms, notwithstanding the ructions caused by the illiberal constitutionalism is thus formed by capturing man Rights Violations: The Decisions of the EU exceptional circumstances which prompted the Kadi Participants Tímea Drinóczi the constitution and constitutionalism in a legal way by Courts in the Western Sahara Cases decisions. The CJEU has been strongly criticized by Agnieszka Bień-Kacała the populist political majority, which lacks self-restraint, The case of Frente Polisario v Council concerned leading academics for shortcomings in its human Tomasz Milej with formal and informal constitutional change and a challenge to a Council Decision which approved the rights reasoning in a number of high profile cases. This Maciej Serowaniec packing the constitutional court. We also perceive in 2010 EU/Morocco Liberalization Agreement regarding paper will endeavour to contribute to this vein of schol- Fabio Ratto Trabucco which the illiberal constitutionalism is theorized by a agricultural and fisheries products (which had amend- arship. Given the constitutional principles upon which Moderator Tímea Drinóczi misunderstood political constitutionalism and con- ed aspects of the 2000 EU/Morocco Association the EU is based and the privileged position enjoyed Room 8B-2-43 stitutional identity. These steps are consecutive, thus Agreement). According to their terms the Agreements by the CJEU within the international legal order, it will not the interchangeable result of a slow development. were applicable in respect of ‘Moroccan territory’. The argue that the CJEU should endorse interpretations Co-author:Tímea Drinóczi Polisario argued that the tariff privileges established as of relevant legal sources that protect the fundamental Tímea Drinóczi: Recent systemic developments a result had been applied to products originated from human rights of not only those persons who come in Poland and Hungary Tomasz Milej: Liberal principles for East Africa – the occupied territory of Western Sahara in contraven- within the EU’s jurisdiction but also those externally In the paper, using the example of Poland and Hun- the judiciary’s perspective tion of EU/International Law. In 2015 the General Court located individuals/groups who are victimized by the gary, we will depict how constitutions may be ‘captured’ Although the constitutions of Kenya, Tanzania, and of the EU decided that the Council had to ensure that implementation of EU trade agreements which are and ‘used’ by political decision-makers to fulfil their Uganda embrace the idea of liberal democracy, the products from this Non-Self-Governing Territory were proven to be incompatible with the peremptory norms political agenda. These states have been turned from liberal principles are by no means on a steady upwards not treated in ways that were detrimental to the funda- of international law. a constitutional democracy to something else, which trajectory. Just to give a few examples: The ethnic af- mental rights of the Sahrawi people. It was concerned is described by many scholars as illiberal, authori- filiation is still one of the main factors determining that the EU was contributing to the human rights viola- tarian, semi-authoritarian regimes, lands in-between, Kenyan politics President’s Magufuli administration tions being perpetrated by Morocco by ‘encouraging democracies in crisis. Publicists and academics have in Tanzania takes a harsh stance against the media, and profiting’ from the exploitation of Western Sahara. already explained but only partially from the constitu- and it was not long time ago that the Ugandan legisla- On appeal the CJEU saw things very differently. It ap- tional law perspective, what factors and in what way tor tried to dramatically increase the penal sanctions plied certain provisions of the Vienna Convention on have led to this crisis. Against this background, we for homosexual contacts between consenting adults. the Law of Treaties to the situation in Western Sahara conceptualize how constitutional mechanisms were However, where does the judiciary stand? The norma- in a highly selective manner and with scant regard for abused in a different way by Poland and Hungary and tive constitutional framework in all three states creates the facts on the ground. First, it ruled that the Agree- yet, how they could have the same effect i.e. shaping for the judiciary a conducive environment to stand for ments could only be applied in relation to territory over an illiberal constitutionalism. In our view, both the Pol- the liberal democracy. All three constitutions contain a which Morocco exercises lawful sovereign authority ish and the Hungarian constitution and constitutional- comprehensive Bill of Rights. There are also different (pursuant to Art. 29). Secondly, it decided that nei- ism are captured by the leading political parties. The forms of judicial review and the courts, including the ther of the Agreements generated legal effects for illiberal constitutionalism is thus formed by capturing East African Court of Justice – a regional court of the the Sahrawi people because they had no consented the constitution and constitutionalism in a legal way by East African Community – embraced the idea of Public to them in keeping with principle of pacta tertiis nec the populist political majority, which lacks self-restraint, Interest Litigation. However, the image of the judiciary

Concurring panels 196 Concurring panels 197 is tainted by its past, neither in the colonial period nor EU Countries on migrant affairs: the direct democracy 116 T HE ROLE OF INTERNATIONAL AND Luca Pasquet: Horizontal Solange – An inter- after independence was it a check on the unfettered may be vulnerable if the political players ask the peo- NATIONAL JUDGES IN DEVELOPING systemic legality review? power of autocratic rulers. It is only since the nine- ple incomprehensible or otherwise rigged questions. INTER-SYSTEMIC LINKAGES The second presentation discusses how interna- ties that the courtroom started witnessing the judges Just remember that in the last years there are some tional courts and tribunals directly or indirectly review challenging the politicians. The paper analyses some examples of manipulative referenda in Europe and Judges have a central role in defining and developing the legality of acts belonging to other legal regimes fol- examples of the East African judges’ assertiveness. On USA on different topics (e.g. 2014’s Crimea and 2015’s the relations among legal systems. Not only they hold lowing a modus operandi reminiscent of the Solange the basis of the respective case-law it tries to at least Greece; 2016’s Austin and Jacksonville). the keys of their system’s gates, but they also decide method employed by constitutional courts. Examples partly unveil the judiciary’s take on the liberal principles. when to observe the outer world from its windows. In can be found in the ‘equivalent protection’ doctrine short, they can forge the relationship between legal developed by the ECtHR, and in the Kadi jurisprudence Maciej Serowaniec: The role of “controlled” ref- systems in many different ways. The panel we pro- of the Court of Justice of the European Union (CJEU). erendums in Polish democracy pose aims at studying inter-systemic interactions from By its nature, this typology of legal review calls into Due to the introduction of the principle of nation the perspective of the judges involved. A first section question the relationships between two legal regimes: sovereignty in the Constitution of the Republic of Po- will specifically address the ‘horizontal interactions’ a court sets the conditions under which an external land, it seemed that a nationwide referendum was between international jurisdictions (I). A second sec- legal act may produce legal effects in its legal system; bound to become an important instrument allowing tion will discuss the ‘vertical interactions’ among in- at the same time, the regime where the act originated the expression of opinions and formulation of deci- ternational courts and tribunals on the one hand and may decide to ignore these conditions or to conform sions by the sovereign. In fact, as a form of participa- national courts on the other (II). The two sections are to them. The interaction so originated might eventu- tion of those governing in determining public matters, closely connected and carefully interfaced: while the ally allow the two regimes to find a modus vivendi, a it serves the immediate expression of the political horizontal one will analyse different judicial methods synthesis between their respective values and ratio- will allocated to the citizen. The nation is a source and techniques inspired to the practice of national nalities. This ‘horizontal Solange’ may also be seen of power and may assume the role of an arbitrator in courts the second will focus on the relationships be- as a last-resort instrument to protect fundamental conflict situations between constitutional state organs tween national courts and the numerous jurisdictions values, premised on a logic of complementarity: if no but also in disputes between the subjects of the po- populating today’s fragmented international law. legal review based on human rights is available in the litical scene, which is reflected in the targeting of the regime to which the act belongs, such a review has to activities of public authorities according to the will Participants Pasquale De Sena take place in the regime where the act is applied. In expressed via a referendum. The conclusions that Luca Pasquet this way, it could be seen as a sort of ‘gentle humanizer’ can be drawn from the use of referendum in Poland Edoardo Stoppioni of multi-level governance. are much less optimistic. From the very beginning Lorenzo Gradoni of its implementation, it was accompanied by politi- Laurence Burgorgue Larsen Edoardo Stoppioni: General principles as pur- cal horse-trading. A referendum has been and still is Remy Jorritsma veyors of inter-systemic linkages commonly treated by the Polish political classes as an Moderator Andres Delgado Casteleiro A third intervention will discuss general principles element of political struggle between particular par- Room 8B-2-49 of law as inter-systemic linkers. The discourse on gen- liamentary and extra-parliamentary groups that take eral principles has evolved through history. Since the advantage of it for their ongoing purposes. Different Committee of jurists reflected on principles recog- political hubs attach different expectations to refer- Pasquale De Sena: Balancing Test: An inter- nized in foro domestico to avoid non liquet situations enda. Some politicians treat them solely as a test of systemic weight formula? this judicial instrument acquired polymorph functions the popularity of their group. Referenda have become The first presentation discusses how international in the burgeoning activity of international courts and toys in the hands of politicians who use them as tools courts and tribunals apply the balancing test to deal with tribunals. Alongside with general principles of law in electoral competition and an element of the ‘power competing and potentially contradictory international mentioned by article 38 of the ICJ Statute, interna- game’. Co-author: Zbigniew Witkowski [email protected] legal norms. More specifically, it regards those cases tional courts have elaborated diverse general prin- in which the principles and values of the court’s own ciples of international law be they system-specific or Fabio Ratto Trabucco: The migrant quota refer- regime are weighed against those of other regimes. The inherent to the international legal order as a whole. endum experience in Hungary balancing test is traditionally applied by national con- This paper shall focus on the use of general principles This paper explores the evolution of the partici- stitutional courts in order to deal with competing con- by international jurisdictions as key elements of the patory principle in the Hungarian constitutional texts stitutional principles. As advocated by some observ- legal reasoning lying at the intersection of different concerning the use of a referendum. What is the im- ers, the same technique should be generally applied in legal orders. Studying the way the jurisdictional dis- portance of this particular Hungarian referendum? international law to strike a balance among competing course tend to incorporate or reject them, between Why it merits discussion in a comparative or broader international norms having the same hierarchical status. hegemonic and pluralist attitudes, will aim at clarifying European perspective? These are things that may to However, in a legal space fragmented along functional the forms of this flourishing source of international law. some degree be self-evident but is important to be lines, this would necessarily imply that judges must at- clear what the point of view and why it also matters tribute a “weight” to external legal principles belonging Lorenzo Gradoni: Customary international law outside Hungary. It was a questionable, distorted and to other legal regimes. While some international courts, and fragmentation from the standpoint of na- ideological test of direct democracy (also called “Po- such as the European Court of Human Rights (ECtHR), tional judges temkin referendum”), endorsed arguably by Constitu- have normally resort to this technique, others, such The presentation discusses the way in which na- tion Court. The are also some doubts about the State as the International Court of Justice (ICJ), have so far tional judges relate to international courts and tribu- funds that were used to pay for referendum adverts avoided applying it. Analysing this technique may shed nals when reconstructing international norms in their in government-friendly media outlets or on hoardings light on the way in which international courts reconstruct own legal systems. With the jurisdictionalization of the owned by government allies. Hungarian quota refer- external values and principles in their own regime and international legal order, national courts are now sided endum appears as a democratic negotiate with other attribute a weight to them. by supranational jurisdictions in identifying the con-

Concurring panels 198 Concurring panels 199 tent of an international rule. When having to address 117 courts Administrative 118 T HE QUEST FOR FREEDOM(S) boundaries. Therefore, if for the Countries with a civil a norm of customary international law, for instance, Discretion and Regulatory law legal system, this freedom is always more inter- national courts often refer, not so much to State prac- Agencies related with that of expression for the Countries with a tice, but to international judicial practice(s). Studying Participants Jihye Kim common law legal system, this freedom is always more the way in which these vertical links are established How much control should courts exercize over the Francesco Clementi interrelated with that of assembly in a sort of back to or rescinded may shed light on how national courts executive branch? What is the scope and purpose of Martin Kopa the past towards the ‘old incubator’. The paper’s aim is internally reconstruct the fragmented international law, judicial control of administrative discretion? Should Jack Tsen-Ta Lee to discuss this topic in comparative perspective, trying i.e. on how they establish external points of reference courts treat independent regulators differently? This Eliska Pirkova to rethink the conventional ways of understanding this in a polycentric legal space and arbitrate between panel will analyze these questions from a comparative Oleg Soldatov freedom in front of the new challenging conceptions. conflicting normative claims coming from the different perspective surveying different legal systems and their Moderator Francesco Clementi international legal regimes. treatment of these matters. In addition to contrasting Room 8A-3-27 Martin Kopa: Freedom of expression of judges distinct legal arrangements, this panel also aims at in times of constitutional crises Laurence Burgorgue Larsen: How international comparing the distinct conceptual frameworks that Several high-profile judges have gotten political courts frame the role of national judges may inform such arrangements, such as the role of Jihye Kim: Harmful Speech by the Constitution- recently. Be it Hungarian judge Baka, who criticized The presentation deals with the increasing attempt courts and the role of administrators. al Court: Military Sodomy and National Defense plans to reorganize Hungarian judiciary. Or Ruth Bader of international courts to frame the role of national In the Republic of Korea, divided under a ceasefire Ginsburg in the U.S., who admitted that Donald Trump judges under international law. This recent evolution is Participants Mariana Mota Prado for over 60 years, the rhetoric of a threat to national would not be her choice in the presidential election, particularly evident in regional human rights protection Joana Mendes security has often been triggered as a powerful, some- likening his prospective win to a catastrophe. There systems. On the one hand, the Inter-American Court Giulio Napolitano times misused reason to legitimize restrictions on in- were several cases raising the million-dollar question – has crafted different obligations in order to frame the Moderator Mariana Mota Prado dividuals’ fundamental rights. In its decision on July “Was it ok for the judge to express this opinion?” – even power of the national judge: the obligation of a ‘con- Room 8A-3-17 28, 2016, the Constitutional Court of Korea used the in our country. When are judges allowed to step into ventionality control’, imposing to the judge not to apply rhetoric to decide the criminalization of homosexual the political arena? Are there occasions where they a norm that is deemed contrary to the Convention in acts among the military members constitutional, re- are even required to speak up? Should they respond the light of the case law of the San José Court (Almo- Mariana Mota Prado: Courts, Administrative gardless of whether such acts occur consensual or to the critique of their decision-making by members of nacid Arellano v. Chili 26 September 2006) and the Discretion and Regulartory Agencies non-consensual, private or public, and inside or out- the executive or legislative branches of government? obligation of proprio motu invocation of the pertinent side the military base. The Court declared same-sex Or should they only speak through their judgments? provisions of the Convention (Rosendo Radilla Pache- Joana Mendes: Courts, Administrative Discre- sexual acts to be “abnormal”, “a disgust to the general These are generally the questions I would like to nor- co v. Mexico 23 November 2009). On the other hand, tion and Regulartory Agencies public”, and “against the virtuous sexual morality” thus matively answer in my paper. Certain principles may the case law of the ECtHR, while refusing to define justifying the ban “to preserve combat power of the be abstracted from the comparative case-law. I would in abstracto the effects of the Convention in national Giulio Napolitano: Legislative mixed feeling military.” This article argues that the reasoning was like to test these principles on several case-studies law, has evolved towards the indication of necessary about judicial review of administrative action flawed in that it was based on multiple layers of un- of real controversies. But I will not work only with the structural reforms through pilot judgments (Broniowski questioned prejudice against homosexuality and un- law. The questions raised are also a matter of legal v. Poland 22 June 2004) or condemning the absence founded speculations, as well as unjustified diminish- ethics. In current constitutional crises it will often be of ex officio use of the Convention when national law ment of fundamental rights among military members. up to judges to be an effective component of militant recognises its direct effect (Botten v. Norway 19 Febru- It further argues that more importantly, such judgment democracy (Streitbare demokratie) protecting demo- ary 1996). This evolution of the jurisdictional systemic constitutes harmful speech in itself by the Court that cratic state against its self-destruction. But how do interactions can shed light on the evolving role of calls for serious doubt on its role as a guardian of hu- they know when to trigger this concept? If they speak national courts in multilevel systems of adjudication. man dignity and equality under the Constitution. up too early the danger is that they might overstep the ethical and legal boundaries of their role. But is it Remy Jorritsma: When national judges mount Francesco Clementi: The new challenging possible to draw the line? resistance against international norms boundaries of the freedom of association The presentation deals with the resistance op- In the history of constitutionalism, the freedom of Jack Tsen-Ta Lee: Patriotism and Belief: Judi- posed by national judges to the penetration of inter- association has had a fundamental role accompanying cial Approaches to Freedom of Thought Con- national norms into their own legal systems, which may the birth, development and growth of the formal and science and Religion in Japan and Singapore result in clear acts of defiance towards international substantive concept of political community as, at the The courts in both Japan and Singapore have jurisdictions. Recent practice offers interesting exam- same time, the birth, development and growth of the grappled with, and ultimately dismissed, assertions ples, such as the decision of the Italian Constitutional relational potential of the individuals in the societies. by claimants working in educational institutions that Court n. 238/2014. On the one hand, the Court de- Then, this freedom over the time, has become a good require them to participate in patriotic ceremonies in- clared the primacy of the fundamental constitutional parameter to understand the relationship between volving a national anthem, flag or pledge infringes their right to jurisdictional protection over the international the political authority and the whole of the individual constitutional rights. The cases share the characteris- customary norms on State immunity. By doing so, the freedoms – from expression to assembly – which the tic of the courts giving scant weight to the applicants’ Constitutional Court openly defied the ICJ which, in freedom of association collectively in se includes. Do- views of what their personal systems of belief called Germany v. Italy, had defined the scope of sovereign ing so, this freedom has always more confirmed to be a for. Rather, the courts essentially took the position immunity. Other clear examples include the Russian cornerstone of the democracy. Now, the general crisis that they were entitled to determine the matters for Constitutional Court debarring the execution of the of the participation and representation, the relevant themselves. This paper submits that the courts should decisions of the ECtHR, in case of incompatibility of transformations of the power, the incisive judgements not have done so, as it is problematic for a court to the latter with the Russian constitution. of the Courts, the digital age and the huge growing purport to declare what practices should be regarded of the so called social networks are changing this as not part of or not required by an individual’s belief freedom bringing it to an enlargement of its classical system, particularly if it is a religious one. It examines

Concurring panels 200 Concurring panels 201 whether, and if so how, judges have balanced the rel- (c) assess its effectiveness drawing conclusions from 119 B UILDING THE PEACE accepted understanding of the constitution as an evant rights – the freedom of thought and conscience the events that happened in the Russian blogosphere entrenched and lasting document. It is not the well- guaranteed by Article 19 of the Japanese Constitution; in 2014-2016; (d) speculate whether other European worn metaphor of the living tree, which grows yet is and the right to profess practise and propagate one’s countries might choose to follow Russia’s example. Participants Britta Sjoestedt always rooted to its foundations, that best captures the religion protected by Article 15(1) of the Singapore Jenna Sapiano meaning of the peace agreement constitution. A better Constitution – against other public interests said to Cindy Wittke symbol would be that of a cloud, existing in a bounded be promoted by the government policies in question. Huub Spoormans and ecosystem, which finds its originating and sustaining Irene Broekhuijse source of existence (or authority) from the water below. Eliska Pirkova: Freedom of Expression and Radek Pisa In this meteorological image the constitution can only Internet Service providers: What future holds Moderator Jenna Sapiano continue to exist if it can do so by that which sustains after Delfi. Room 8A-3-45 it, or by those over whom the constitution exists. The This research paper discusses the issue of third constitution continues to exist so long as it is believed party Internet liability for dissemination of ‘hate speech’ to have the authority to do so, upholding the legitimate comments and opinions, while strictly focusing on non- Britta Sjoestedt: International actors in environ- political and legal order. The constitution is at once commercialized speech that lies outside the scope of mental peacebuilding: the local and the inter- connected and part of those over whom it holds au- copyright law. It provides an analysis of the ECtHR national in fragile states thority, but separate and distinct from that authority. pioneer judgment Delfi v. Estonia, where for essentially In this paper, I explore the practice of implement- the first time the Strasbourg Court had to rule on the ing international environmental law in institutionally Cindy Wittke: Building and Keeping Peace in the liability of Internet platforms that allow for dissemi- weak states transitioning from peace to conflict to fur- City nation of offensive and often threatening comments ther analyse how foreign and international actors’ prac- 21st century cities are objects, subjects, labora- to a wide range of audience. It then continues with tice fills an institutional and legal gap in post-conflict tories, and agents of emerging formal and informal examining the most recent ECtHR judgment concern- situations. This is of interest for two main reasons. First, modes of global, local, and transnational governance. ing the same issue, MTE v. Hungary. It draws parallels it embodies the implementation of environmental trea- Cities use the languages of inter-state relations and between the current and previous approach of ECtHR ties and international environmental norms such as international law and mimic states’ practiced forms of to hate speech. Simultaneously, it critically assesses ‘international cooperation’, ‘sustainable development’, institutionalised and legalised interaction. Internally, the pitfalls in the Court’s rulings and its possible future ‘common but differentiated responsibility’ and ‘rights cities are prone to “intra-city” conflicts, which lead to implications. The following part of the paper compares of future generations’. Second, it also transfers the theoretical and empirical challenges of exploring pat- the Strasbourg rulings to the approach adopted by governance of the environment in these post-conflict terns, forms and distinctions of regular and irregular the Court of Justice of the European Union (CJEU) to states from a domestic to an international level. In (violent) conflicts in 21st century cities. Consequently, the Internet Service Providers’ liability for third party post-conflict states actors of the international com- the quest for peace, originally a state-centred concept, content (ISPs). Further, it also sheds light on the newly munity are supposed to take on action to rebuild the undergoes a re-conceptualisation as the search for developed human rights scrutiny test applied by the society to make it robust state to be able to prevent the building and keeping “peace in the city”. The paper will CJEU in cases such as Digital Rights Ireland or Maxi- reoccurring of hostilities. I suggest that these actors explore the status as well as spatial dimensions of cit- millian Schrems v Data Protection Commissioner. Fi- representing often bypass the national government to ies and (re)conceptualise negative as well as positive nally, the goal of this paper is to clarify ISP’s liability directly address the local communities. I investigate approaches to peace relating to cities. These explo- struggle and to pin down the main obstacles imposed the interaction with the local communities and whether rations go hand in hand with the necessity of critical on the freedom of expression in digital age. the suggested capacity-building to these states is in reflections on security concepts and securitisation in fact capacity-demolishing by maintaining a system relation to formal and informal modes of governance Oleg Soldatov: “Bloggers Law” and Online Free- of dependence on foreign aid? In this paper, I want to that may be deployed in the city as well as on how to dom of Expression in Russia shed some light on what the environmental norms or approach the every-day perceived safety and peace In May 2014 the Russian Parliament enacted the concepts can be invoked to govern the environment by people living in cities. Core-questions for the paper Federal Law No. 97-FZ (the so-called “Bloggers Law”). that may keep post-conflict states under the dictates are: How do cities govern intra-city (violent) conflict This piece of legislation, which was passed with the of international actors. situations? How are new political settlements negoti- justification of curbing the terrorist threat, requires ated in cities, by whom, and according to which norms compulsory registration of all bloggers with more than Jenna Sapiano: Constitutional Language and for building and keeping peace in the city? In sum, 3 000 visits a day with the country’s Internet watchdog, Peace Constitutions the paper will give an overview and discuss selected Roskomnadzor, leading to disclosure of their real iden- The language used to describe constitutions (often legal and political analytical challenges that arise when tities to the State authorities. Moreover, according to articulated by courts), such as the ‘living tree’ meta- building and keeping lasting peace in 21st century this law the bloggers have to abide by the same rules phor, does not precisely describe peace agreement cities. as journalists, including, among other things, an ob- constitutions. The belief that a constitution is perma- ligation to verify information before publishing it. The nent is built into the very concept of constitutionalism, Huub Spoormans and Irene Broekhuijse: The Bloggers Law faced numerous criticisms: while the but locating stability and endurance in a document regulation of political parties in the Netherlands discussion as to whether there is indeed a legal right to that, in its moment of founding and design, is com- Among others, like Katz and Mair, the Dutch politi- online anonymity is still far from being concluded, the promised by a greater need to create peace, has the cal scientist Van Biezen has elaborated on the chang- law makes anonymous blogging an impossible under- possibility to entrench the divisions of the conflict. ing relationship between political parties and states. taking in Russia. In the paper the author attempts to: A compromised constitution cannot be understood Based on empirical research she concluded that the (a) analyse the reasoning behind the Federal Law No. as an end-point if it is to function in a deeply divided relationship between the state and the parties (also 97-FZ; (b) disentangle and contextualise the most con- state emerging from high-level conflict. To understand in the Netherlands) has become stronger over time, troversial provisions of the Bloggers Law point by point; the constitution as an activity breaks with the more at least with regard to the financial dependence, of

Concurring panels 202 Concurring panels 203 parties on the state and the increasing regulation of 120 T HE LAW OF CONSTITUTION(S) democratic imaginaries. The two instituted constitu- process, or even content-related “principles” as in parties by the state. In particular she has drawn atten- tional imaginaries will be ‘unpacked’ in specific com- the South African Interim Constitution of 1994. In my tion to the remarkable judicialisation of political parties ponents. In conclusion I suggest that constitutional paper I will try to grasp the idea of “constitutionalized in post-war Europe. This judicialisation consists of the Participants Ori Aronson sociology might significantly help elucidating the po- constitution-making” from a German constitutional constitutive codification of political parties and the Paul Blokker tential losses and heteronomous tendencies that may law perspective. Drawing on the theory of constituent legal regulation of political parties. The Netherlands Eoin Carolan result from the contemporary uncertainty and possible power as opposed to constituted powers and using seems to deviate from the European pattern. Political Friederike Eggert metamorphosis that affects the modern constitution. the existing vocabulary of the dichotomy of consti- parties are not even mentioned in the constitution and Gert Jan Geertjes tution-making and constitutional amendment and I there exists no Party Law. Because of this particularity, Moderator Paul Blokker Eoin Carolan: Examining the social political and develop the concept of “constitutional replacement” this contribution aims provide insights in the Dutch Room 8B-3-03 institutional dynamics of constitutional change as a tertium that will not only explain the additional legal framework. In this paper we describe the devel- This paper examines the social, political, and insti- stage in the adoption process, but also the involve- opment of political parties in the Netherlands and the tutional factors that shape processes of constitutional ment of constitutional courts. discussion on the legal regulation of parties. We argue Ori Aronson: The Constitution in Trial Courts: An change. What are the conditions that determine when, that the developments of parties is quite similar to Empirical Study how, and in what form demands for reform are made? Gert Jan Geertjes: The Objectives of Constitu- other European polities, but that legal regulation took a The study is an extensive empirical survey of Is- This paper will consider these questions in light of the tional Conventions: Reflections on the Political different route; i.e. not by the front door of constitution- raeli trial court decisions that have cited the Basic campaigns for marriage equality in California Ireland Culture of the Common Law and Continental alization and a Party Law, but by a backdoor through Laws – Israel’s constitutional texts – in the past twenty and Slovenia. While the campaign in each jurisdiction Constitutions international law and via the Courts. We conclude our years, since the introduction of judicial review to the drew on the language of rights, the tactics and strate- In almost every western democracy, the conduct analysis by giving some reasons for this Dutch route Israeli constitutional system. While the full results of gies of activities were clearly influenced by political of political state institutions such as the King, the Gov- to judicialisation. the study are still being analyzed, initial results are and institutional considerations relating to the con- ernment and Parliament is, in addition to constitutional available, aimed at identifying unique characteristics stitutional order. In California, a referendum reversing law, regulated by rules of a non-legal character. These Radek Pisa: On the Origins of Dictators of trial court constitutional adjudication. Notable find- a judicial decision in favour of marriage equality was rules are commonly referred to as constitutional con- ings are the nearly complete lack of judicial review regarded by activists as an example of the so-called ventions. In many common law systems conventions litigation in trial courts (i.e. litigation that concerns the ‘backlash thesis’: the idea that judicial acitivism on have traditionally been seen as instruments which are validity of primary legislation) despite the availability of rights issues may trigger a damaging popular back- employed to ‘correct’ the potential negative effects of constitutional jurisdiction with these courts; and the lash. This led to a divergence between strategists who the existence of non-elected institutions of the consti- parallel trends of constitutional citation that appear in wished to focus on political campaigns, and the com- tution. It could therefore be argued that conventions both Supreme Court and trial court decision-making munity who wished to pursue legal action at federal in the UK constitution are embedded in a political over the two decades. The results hint at the significant level. In Ireland, by contrast, the referendum was seen culture of majoritarianism. In current literature, this force institutional hierarchies hold over trial court dis- as a means of circumventing a reluctant parliament seems to be the dominant objective of conventions. It cretion in the constitutional field; they imply that if trial and a cautious judiciary. In Slovenia, meanwhile, the is however often overlooked that conventions of other courts are to be tapped as useful sources of a pluralist focus was on legislative reform with little consider- (continental) constitutions may also be animated by and participatory form of constitutionalism, then insti- ation given to the possibility of litigation. Drawing on other values. In the Netherlands, for instance, vari- tutional adjustments, which would relieve some of the interviews with activists and lawyers in each state, this ous conventions aim to respect the representation of power apex courts exert on the constitutional system, paper examines what these differences of approach political minorities in Parliament. It could therefore ought to be considered. to a ‘rights’ issue suggest about the backlash thesis; be said that in the Netherlands conventions operate and about the conditions in which judicially-mandated against the background of a culture of proportionality. Paul Blokker: The Imaginary Constitution of change may (or may not) be sustainable. The gist of this paper is that the role of conventions in Constitutions the constitution can only be properly understood in The modern constitution is predominantly under- Friederike Eggert: Constitutionalized consti- relation to the political culture in which they are em- stood as a way of instituting and limiting power and is tution-making from a German constitutional bedded. Using existing literature on political culture expected to contribute to (societal) stability certainty lawyer’s perspective and constitutional conventions as a model, this paper and order. Constitutions are hence of clear sociologi- The fear of unlimited constituent power is not new, investigates the role that conventions may play in both cal interest but until recently they have received little but has chased governing institutions throughout his- common law and continental constitutional systems. sociological attention. The constitutional sociology tory. In view of various apparently failed constitution- developed here is phenomenologically inspired and making processes the call for limitations to constituent stresses the importance of understandings of the power has recently been renewed and in particular modern constitution as ‘embedded’ in constitutional been voiced by David Landau and William Partlett. Fur- imaginaries. Rather than as a visible and rationally thermore, constitutional courts may be observed as designed construct constitutional sociology under- more and more active players in constitution-making stands constitutionalism as ultimately a ‘field of knowl- processes. The idea of “constitutionalized constitu- edge’. The suggestion is that this field of knowledge tion-making has been brought about before by An- or ‘modern constitutional horizon’ is characterized by drew Arato and German scholars Christian Starck and a tension between two ultimate markers in terms of Christian Winterhoff. Based on the empirical study of what Castoriadis has identified as the social imagi- modern constitution-making processes, a new type of nary significations of mastery and autonomy. Mastery constitution-making can be observed, one in which the and autonomy form prominent constitutional orienta- traditional model of constitution-making is preceded tions historically taking the form of solidified instituted by a “third step” the previous adoption of an interim meanings identified here as the modernist and the constitution that lays out the constitution-making

Concurring panels 204 Concurring panels 205 121 croSSING BORDERS: MIGRATION reached through deliberation with a solution based on The governance of each colonial territory is in con- Ralph Wilde: Unintended consequences: Do AND LAND-USE CONFLICTS other procedural and substantive standards. The pos- stitutional principle a discrete function of the Crown. progressive legal developments protecting sibility for the “losing” party in a participatory setting However, in 2008 the House of Lords (as it then was) forced migrants undermine protection in other to “exit” this decision-making procedure and chose overturned these decisions, only to revisit the question areas? Participants Pratyush Kumar a court case as an alternative raises the question to again in judgment delivered in 2016, thus demonstrat- The story of the development of legal protections Andreas Hofmann what purpose time and effort is spent on deliberation ing the particularly protracted and vexatious nature of for forced migrants in international law is, in terms of David Moya in the first place. In addition exit options add an extra the issues which the Government had sought to deter- the scope of protection, a progressive one. Yet a cor- Satvinder Juss layer of conflict by making not only the outcome but mine through the ill-judged mechanism of the Royal responding trend in the opposite direction can also Mario Savino also the procedure an issue of contention. Based on Prerogative.The Bancoult saga is the longest Supreme be detected: a diminution in states’ commitments to Ralph Wilde the example of a conflict over nature conservation in court case ever heard. The 2008 decision was not its refugee protection, as evidenced in the expanded Moderator David Abraham Sweden this paper explores the respective merits of last. In 2016 the Supreme Court gave a split decision, scope of non-entré measures, from visa restrictions Room 8B-3-09 deliberative fora vs. court rooms and discusses the but which nonetheless still fully acknowledged that its to carrier sanctions and push-back operations. The prospects of solving deep seated conflicts when more earlier 2008 decision had moved the law forward and present paper asks: how can and should we under- than one procedure is available. that, in the words of Lord Mance giving the majority stand the causal relationship, if any, between these two Pratyush Kumar: The land question from co- decision (and who had also given judgment in 2008), concurrent, divergent developments? Have progres- lonial to post-colonial times: Reading and re- David Moya: Strategic litigation. Using multilev- the exercise of prerogative powers were “susceptible sive legal developments played a causal role in the reading the Apex Court today el protection of immigrant and refugees’ rights to judicial review on ordinary principles of legality, ra- broader trend of resistance to the protection of forced Land as a question of colonial and post-colonial In- to shape legislation and administrative practice tionality and procedural impropriety.” Yet, the plight of migrants? The paper will explore this question through dia has affected its polity and public law ever since the by NGOs the Chagos Islanders remained unchanged in 2008 the case study of progressive legal developments in ‘permanent settlement’ of 1793. The organized peasant The proposed paper is the result of a funded re- as it did in 2016 – such that further legal challenges one area of protection: the application of human rights movement starting in the 1920s gave a shot in the arm search on the role of NGOs in the judicial arena when remain likely. The story is not yet over and this analysis law to the extraterritorial migration-policy-related ac- of India’s struggle for independence on the one hand advocating for immigrant and refugees’ rights. The is an attempt to locate the Bancoult litigation in its tivities of states, from interception and push-back at and abolition of zamindari (landlordism) unsettling the paper explores the Spanish case-law in light of the proper political context and to suggest that the House sea, to the extraterritorial posting of immigration offi- colonial ‘permanent settlement’ on the other. In this EUCJ and ECtHR jurisprudence, and in particular the of Lords in 2008 could – and indeed should – have cials and the operation of offshore migrant processing backdrop, the Supreme Court of India remained es- structure of opportunities that creates different judicial a taken a different decision for reasons connected centres. The paper will consider what are and may be sentially a colonial creation and went against the tide procedures. It is well known that NGOs as interest entirely to the fact that the Government was using pre- the negative blowback consequences for protection of time in deciding in favour of the biggest landlord in groups act in the political arena advocating for immi- rogative powers in the context of colonial governance. of the progressive legal developments that have taken the country in Sir Kameshwar Singh v. State of Bihar grants rights, but it is less known their litigation strat- This has serious implications both for the future use of place in relation to these activities. Might they drive leading to the abolition of right to property as a fun- egies and the limits they encounter to defend those the Prerogative and for Public Law in general. states towards even more extreme non-entré mea- damental right and taking away all the land reform rights. The paper explores the interaction between sures? When allied to other progressive developments legislations from the purview of the court by putting NGOs and the Judiciary, the role of NGOs coalition to Mario Savino: The role of courts and the spe- in human rights law generally, might they lead states them in the Ninth Schedule of the Constitution. With ensure favourable judicial outcomes and some proce- cialty of migration law to place into question their continued commitment the turn of the century in 2013 the central government dural limitations that diminish the impact of strategic Immigration law regulates public powers that, by to human rights. came up with a proposed land acquisition act which litigation in this area. definition, target non-citizens. This does not make was then taken up with changes by the land acquisition those public powers special, as they still need to abide ordinance of 2015 to develop on the idea of ‘develop- Satvinder Juss: The Royal Prerogative in Colo- to the rule of law. What makes immigration law special ment’ where land was to be taken away from farmers nial Constitutional Law is its legality. Due to the exclusive nature of political and effectively passed on to private players exercising The Chagos Islanders Case will be remembered for rights, those who decide (insiders) are different from its right of eminent domain. This puts a question mark its abandonment of the common law’s affirmation of a those who are affected (outsiders). The former decide on what is our land policy today; what is the nature of Subject’s right to be free from exile, when more than whether and to what extent the liberties of the latter are our public sphere shaping our public law; and if such a a decade ago the British Government in the exercise constrained in the name of (national) public interests. law sees the light of day how will our courts, including of its imperial powers decided upon the permanent This helps to explain why the fundamental rights of our apex court, clinch the matter in twenty-first century. exclusion of an entire population from its homeland for non-citizens (e.g. personal freedom) are often more reasons unconnected with their collective well-being. severely constrained than the corresponding citizens’ Andreas Hofmann: Are Courts the Solution or Paradoxically, freedom from exile is a right guaranteed rights; or why due process guarantees are notoriously Part of the Problem? Procedural Legitimacy in in the folklore of the UK, as demonstrated only too weak(er) in immigration law. Moving from this assump- Land Use Conflicts vividly in the celebrations of the 800th Anniversary of tion, the paper aims to deal with the following general Is deliberative democracy meaningless if its out- Magna Carta in 2015. A judgment given by Laws LJ questions: What are the implication of this “specialty” come can be challenged in court? Deliberation and in the Divisional Court in 2000 when the matter first for the role of courts in immigration law? How do courts participatory decision-making have frequently been arose in challenge brought by Louis Oliver Bancoult, (should) deal with the liberal-communitarian dilemma, advocated as a means to increase the legitimacy a Chagos Islander, against the actions of the British which stems from the antagonism between “our” col- of decisions that create distinct losers such as land Goverment, and subsequently affirmed most resound- lective self-determination as a national community and use and siting issues. Discussions about the merits ingly by Sedley LJ in the Court of Appeal in 2007, had “their” individual self-determination as human beings? of deliberation and participatory decision-making as upheld this historic right. They had held that govern- How do domestic constitutional/supreme courts and a mechanism to produce better public policy how- ment objectives could not lawfully be accomplished supranational/international courts understand their ever have seldom included considerations of how this by the use of prerogative powers. The Crown has to respective role as non-majoritarian institutions? How method of problem solving fits in with the ongoing ex- exercise governance over the Colonies as a Crown do they manage the conflictual relations between the pansion of the role of courts and judicial review. Courts function. The interests of these territories are not co- rule of law and the rule by law that is inherent in this pose a challenge since they can replace a solution terminous with interests of the UK state and its allies. politically asymmetric battlefield?

Concurring panels 206 Concurring panels 207 122 crIMINAL LAW AND set to go unpunished and they are posing a serious Hendrik Lubbe: Regional and domestic respons- But, in the long term the paper will recommend a re- INTERNATIONAL COURTS harm to the international community it should be es to the ICC arrest warrants for President structuring of the ICC whereby regional courts serve considered to include these offences as discrete Al-Bashir: The ICC’s future in (South) Africa as the trial and appellate divisions of the ICC. crimes in the jurisdiction of the International Crimi- This paper will critically analyse the judgments Participants Narissa Ramsundar nal Court (ICC). The paper intends to highlight that of the South African High Court and Appeal Court in Satwant Kaur: The Role of the International Rosario Aitala the ICC may progressively play a constructive role which it was found that the government had breached Criminal Court in Ending Impunity Tamar Hostovsky Brandes and in the realm of international governance, if attributed its obligations under the Rome Statute and the Imple- This paper explores what ending impunity means Dana Pugach political legitimacy by States and guaranteed appro- mentation Act by failing to arrest and detain for sur- within the context of the International Criminal Court Hendrik Lubbe priate cooperation in carrying out investigations and render to the ICC Sudanese President Al-Bashir. The and the extent to which the Office of the Prosecutor Enyeribe Oguh enforcing decisions. The paper argues that it should primary issues that will be addressed relate to the has succeeded in achieving this aim. The Preamble to Satwant Kaur be considered to include international terrorism as existence of provision for and removal of the immunity the ICC outlines that the most serious crimes of con- Moderator Dana Pugach and a discrete crime within the jurisdiction of the ICC. At that Al-Bashir was said to enjoy while attending the cern to the international community must not go un- Tamar Hostovsky Brandes the time when the Rome Conference was held agree- AU Summit in Johannesburg in June 2015. It will be punished and emphasises the determination to put an Room 8B-3-19 ment lacked on whether to include terrorism in the demonstrated that the court battle was a meaningful end to impunity for the perpetrators and thus contrib- court’s jurisdiction, also due to the well-known lack exercise of judicial control over public power in that ute towards the prevention of such crimes. The Court of a sufficiently clear definition of terrorism (Trapp, courts hold government to its domestic and interna- was developed as “an organ of global jurisdictional Narissa Ramsundar: Conquering the new fron- State responsibility for international terrorism 2011). tional obligations as reinforced by the provisions of the reach and thus potentially able to respond to violations tiers of international criminality- responsibility The paper intends to highlight technical legal reasons Constitution. The executive’s announcement of South occurring anywhere.” However, the Statute includes for international crimes committed by trans- to demonstrate that the vast majority of terrorism Africa’s withdrawal from the ICC, which is in line with many caveats that shape the definition of this aim, national armed groups through transnational offences being committed throughout the world are the AU’s recent decision on a collective withdrawal including issues of jurisdiction, complementarity and judicial and quasi legal cooperation” set to go unpunished and this could convert in seri- strategy from the Rome Statute during its 28th Summit, admissibility and as the principal actor within the Court, Unlike the atrocities committed during the Second ous harms to peace and international stability and will also be scrutinised. The AU’s previous decisions on it falls within the remit of the Prosecutor to determine World War, which were largely committed by organs of propose a way to enhance the functions of the ICC Africa’s relationship with the ICC in 2013 and the adop- which situations, cases and alleged perpetrators are the State, international crimes committed in the latter by including in its jurisdiction terrorism. tion of the Malabo Protocol in 2014 will be highlighted pursued. This paper argues the OTP has undergone half of the twentieth century, for the most part, have for context. In anticipation of another opportunity for a period of rapid growth in order to meet the various been perpetrated by members of non-State armed Tamar Hostovsky Brandes and Dana Pugach: the court to interpret and enforce constitutional pro- challenges it has faced. It has adapted its structure groups who do not form part of the regular armed Victim’s Rights in Prosecutions for International visions re the relationship between different organs and function over time as it has understood its role and forces of a State. Moreover, as in some cases, such Crimes in International and Domestic Courts: of state and the executive’s powers the executive’s purpose within the Court and within international crimi- as with the Janjaweed and the Islamic State, these Should a Universal Law Apply? legally and procedurally questionable claim that it has nal justice, however while the foundation has been groups are transnational in their operation and re- The Rome Statue accords victims the right to take the prerogative to effect the withdrawal without going laid for effective implementation of the Court’s aim, main outside the pale of international criminal justice part in the proceedings, the right to be represented, through parliament will be evaluated. the practice of the Prosecutor falls short. This paper machinery. This paper explores new ideas towards and the right to claim reparations from perpetrators. contributes to debates on the International Criminal addressing the criminality of these individuals who The ICC prosecutor enjoys wide discretion with regard Enyeribe Oguh: ‘Can regionalisation solve the Court and the role of the Office of the Prosecutor. so far have been able to escape prosecution with im- the conduction of investigations and with regard to ICC’s legitimacy crisis?’ punity, through transnational judicial a cooperation prosecutions. While the Statute does not explicitly re- The paper will scrutinise the Rome Statute to try with international peace and security mechanisms quire the prosecutor to take into consideration specific to explain some of the current crisis around the Inter- afforded under the Charter of the United Nations. This victims’ rights the “interests of the victims” are listed national Criminal Court [ICC]. The recent prospec- paper examines the undeniable role that non legal and in the Statue as one of the factors to be considered by tive withdrawal of three states parties from the court quasi legal protections under international peace and the Prosecutor when deciding that either launching an marked the tipping point of a series of controversies security mechanisms can play in supporting interna- investigation or filing a prosecuting would not serve the that have engulfed the ICC’s work since its inception in tional criminal justice machinery and identifies the interest of justice. This article argues that the “interest 2002. The court has been denounced in some circles ways in which these mechanisms can help create and of victims” should be include the victims’ rights recog- as ineffective and hindering diplomatic efforts to re- supervise transnational judicial cooperation with these nized by the ICC regime. The article then argues that solve political conflicts. It has also been criticised as international peace and security mechanisms so as to when the prosecutor determines that victims’ rights in focusing only on situations involving leaders from weak stymie the rising tide of impunity for this almost new a particular case indeed warrant such case to be pros- states while ignoring worse crimes being committed category of international criminal. In this way, the cross ecuted, this recognition should affect the application by others in major states. In light of these criticisms, fertilization of different, between legal and non-legal of the principle of complementarity in that particular the paper will grapple with the question of whether or quasi legal mechanisms can better address some case, implying that, should a state wish to prosecute regionalisation can effectively address the contro- of the challenges facing international criminal justice the same case domestically, it would be required to versies around the ICC. To this end, it will identify and today with the rise recognize victims’ rights parallel to those recognized examine certain articles of the Rome Statute as the by the prosecutor as essential for the achievement of root causes of the disagreements. Thus, the following Rosario Aitala: International criminal courts and justice. The article argues that reading victims’ rights provisions will be closely analysed: the court triggering the pursuit of peace and justice. The case of in- into the principle of complementarity should lead to mechanisms under Article 13 the deferral power of the ternational terrorism gradual domestic implementation of the ICC’s victims’ Security Council in Article 16 and the conflict between By prosecuting and trying international offences rights regime when crimes encompassed the Statue Articles 27 and 98 regarding the diplomatic immunity international criminal courts deter atrocities being are prosecuted domestically. of public officials. However, it will be submitted that committed and promote peace and global stabil- staunching the looming crisis will require short term ity. Since most offences of international terrorism amendments to the said provisions and/or judicial that are being committed throughout the world are audacity in taking up cases involving powerful states.

Concurring panels 208 Concurring panels 209 123 T HE LIMITS OF JUDGING? Human Rights in this area. Drawing on decisions in- sanne and subjected to Swiss private international law. Yu-Yin Tu: The Legal Mobilization of Indigenous volving the exhaustion of domestic remedies require- Yet, if one goes beyond the formal consensual founda- People’s Right to Natural Resource: Focusing ment, and the right to an effective remedy, as well as tions of the CAS, in social practice its jurisdiction is on the Role of Court Participants Ranieri Lima-Resende materials from enforcement proceedings and cases imposed on athletes or clubs by the Sports Governing The purpose of this paper is to analyze the legal Mary Rogan from the Court of Justice of the European Union, the Bodies (SGBs) as a pre-condition to participate in their obstacles of indigenous people’s right to natural legal Sofiya Kartalova paper suggests there are minimum standards emerg- activities. Since the CAS is mostly active as a review resources, by observing decisions regarding illegal Antoine Duval ing for such mechanisms. The paper argues that the instance for decisions taken by the SGBs, its func- logging or hunting by courts in Taiwan. I observed Mu Li European Court of Human Rights in particular should tion is in practice similar to a national or international that the enactment of “the protection of indigenous Yu-Yin Tu clarify the expectations it has of states to establish court’s role in reviewing the exercise of public power by people’s status land and economy” clause into the Moderator Mary Rogan inspection and oversight mechanisms, and the form national or international authorities. This hybrid public/ Constitution stimulates some revisions of right to natu- Room 8B-3-33 these should take. The paper argues that, in so doing, private nature of the CAS raises questions related to its ral resources laws. At the same time, the argument the Court would have an opportunity to influence local independence from the SGBs. The recent Pechstein level of court activities is enhanced when indigenous administrative and judicial action which seeks to act case, which played out in front of the German courts, people are indicted for committing relevant crimes. Ranieri Lima-Resende: Inter-American Court of as a restraint on the exercise of state power in prisons. highlighted these ‘constitutional’ issues connected Moreover, the routine provision of legal resources to Human Rights’ Decisions and Transitional Jus- Finally, the paper suggests that a clearer statement of with the idea of separation of powers. The CAS is the indigenous people by Legal Aid Foundation facilitates tice: Lack of Implementation the Inter-Amer- expectations from the Court would also provide more only external body to exercise a systematic judicial indigenous people’s arguing their right to natural re- ican System’s Project of Reform (1999/2002) guidance to states in the operation of inspection and check on the SGBs. In light of the lack of democratic sources in courts. Through legal mobilization, the legal and Interinstitutional Dialogue oversight systems and prompt improved protection basis for the decisions of the SGBs, the need for a system institutionally accepts the feedback from the Through the analysis of the four main precedents of rights in prison. strong judicial counter-power is even more pressing. social system and even accumulates the energy of of the Inter-American Court of Human Rights about the This paper proposes to investigate the capacity of the constitutional transformation. However, court deci- legal invalidity of the Amnesty Laws, it is possible to Sofiya Kartalova: The Strategic Value of Ambi- CAS to embody a counter-power to the SGBs. In par- sions show that collecting and hunting rights of indig- identify the permanent lack of implementation of seri- guity for the Authority of EU Law in the Dialogue ticular, it will critically assess the CAS’ independence, enous people are still under the sponsor of the state. ous international obligations by the condemned States between the European Court of Justice and the its judicial practice in reviewing decisions of the SGBs The main reason would be the nature of right to natural even after significant period of time. It is mandatory to National Courts and the publicity of its functioning. resources of indigenous people is obviously different say that the decisions adopted in the cases Barrios The implementation of the authority of EU law from mainstream society’s conception of right to prop- Altos (2001), Almonacid Arellano (2006, Gomes Lund through the dialogue between the ECJ and the nation- Mu Li: Re-examine the scope of security excep- erty. Besides, the right to natural resources as a group (2010),and Gelman (2011) take a special position for al courts is conducted under enhanced indeterminacy tions: The evolving judicial review competence right is incompatible with personal rights prescribed in evidencing the serious absence of full effectiveness due to multilingualism and constitutional pluralism. of international adjudicative bodies over secu- the Constitution. The state should positively recognize according to the last Court’s resolutions regarding This study offers an unconventional interpretation of rity-related national trade-restrictive measures the distinct culture of indigenous people. Only by doing their compliance monitoring. This permanent state of ambiguity in the EU legal order as a complement to le- For decades security exception provisions in inter- so, indigenous people may freely exercise their rights. non-compliance generates the necessity for search- gal certainty that promotes greater flexibility, efficiency national treaties or agreements have been used as a ing for solutions inside the Inter-American System (Piantadosi et. al: 2012), coherence, and acceptabil- “sacred” tool when a country want to exempt its unilat- of Protection, including through important dialogues ity (Paunio: 2013; Leczykiewicz: 2008). The research eral actions from global governance especially judicial between international and national institutions. In this focus falls on the preliminary ruling procedure and review. However, if the power of security exceptions sense, the Inter-American System’s Project of Reform constitutional conflict as integral parts of a cyclical can be taken for granted, such autonomy may become (1999/2002) has shown interesting proposals focused mechanism of ambiguity production, perception and a risk to the world legal order as countries may abuse on the creation of an international mechanism of moni- resolution through judicial interpretation, which may their sovereign power to impose unnecessary trade toring by the Organization of American States and be similar to Pickering and Garrod’s interactive align- barriers far beyond its security need but to protect the establishment of a permanent procedure inside ment model of dialogue (2004). The main research its national economic superiority. This paper aims to national institutional structures that aimed at imple- question is “What is the strategic value of ambiguity explore whether and to what extent national secu- menting the Inter-American decisions by the State for the authority of EU law in the dialogue between the rity trade restrictive measures can subject to judicial itself. In sum, the feasible combination between those ECJ and the national courts?” There are two contrast- review at the international level. The paper chooses two kinds of monitoring scheme can demonstrate the ing perspectives on this issue, depending on whether to study in all relevant cases and judgments of three potential capability for improving the fundamental the interaction between the courts is of adversarial or major supranational (Quasi-) adjudicative bodies the standards of Transitional Justice against impunity in co-operative nature. The researcher may use Derlen ICJ, the WTO DSB and the CJEU. By exploring their the light of the interinstitutional dialogue. and Lindholm’s empirical study on ECJ precedent to attitudes on dealing with security-related trade issues, find the case-law with the highest precedential and or the interpretation and application of security excep- Mary Rogan: Oversight and inspection of pris- persuasive power (2015). Then, a semantically linked tion clause, this thesis reveals that during decades of ons: What does European public law require? multilingual corpus may be constructed (Zhang Sun judicial practice, security-related trade issues are not Principles of public law are of special importance and Jara: 2015) out of the official translations of these deemed non-justiciable. Moreover, with the growing and under particular strain in prisons. Inspection judgments (Bengoetxea 2011) to reveal relevant in- recognition of international rule of law and the con- and monitoring by external bodies and complaints stances of ambiguity. tinuous institutional reforms, the rule setting of WTO mechanisms for prisoners play an important role in and the EU has made their adjudicative bodies more upholding the rule of law in prison. While the impor- Antoine Duval: Democratizing the Supreme capable of accommodating trade restrictive measures tance of inspection and oversight as mechanisms of Court of World Sport: The Court of Arbitration with political implications. upholding rights in prison is clearly recognised by the for Sport after Pechstein Council of Europe, the precise requirements for how The Court of Arbitration for Sport (CAS), created in such mechanisms should operate are not clear. This 1984, reigns supreme over international sporting dis- paper examines the position of the European Court of putes. Formally it is an arbitral tribunal seated in Lau-

Concurring panels 210 Concurring panels 211 124 criminal law, international that truth finding is not a desideratum for ICTs (no one that state authority is necessary to secure a system both either consolidate the basic conditions for the law and human rights expects ICTs to find a cure for cancer; it is not a rea- of equal freedom within the domestic realm. Similarly, primary subject of international law, namely the state, sonable desideratum, and it is for that reason alone international criminal punishment can be justified on to legitimately govern its own subjects constructed as This panel is the second of two linked proposed panels irrelevant to examine further whether they are good the basis that the existence of a system of states is free and equal moral agents. on criminal law, constitutional law and international law. at it). In this paper by way of introduction I therefore necessary to secure the equal freedom of persons (The first panel is entitled “criminal law, constitutional recap what I have shown in greater detail elsewhere: within each state. Acts that challenge that system can principles and human rights.”) Criminal law has been that in spite of widespread claims to the contrary, it is be rightfully be punished by any state or any group one of the most contentious areas of public law in reasonable to expect that ICTs produce roughly ac- of states acting in concert through an international recent decades. From disputes about sexual relations, curate historical truths about atrocities. Truth in law is tribunal. drug use and physician assisted suicide to battles over not merely a technical legal notion defined in strictly sentencing and police powers, courts have inserted procedural terms (fair trial/equality of arms, etc.). It Francesco Vigano: The Ambivalent Role of Hu- themselves in a major way in a wide range of polarizing is therefore reasonable in the legitimacy debate to man Rights in Criminal Law Discourse and controversial issues in the criminal law. This is true engage in a substantive discussion of the second Human rights recognized by international law, as in both international and domestic criminal law. Per- epistemological question proper, i.e. with strength well as or constitutional rights within the domestic haps unsurprisingly, in both domestic and international of the epistemic critique that has been raised. In the legal orders, have been traditionally considered by contexts, questions of legitimacy are now taking center second and main part of the paper I therefore un- criminal law scholars and courts as limits to the State’s stage. Rather than considering rights provisions in dertake a thorough examination and mapping of the punitive power, aiming at the protection of suspects, constitutional documents as simply the embodiment various arguments that have gained currency in the defendants or convicts in respect of law enforcement of first-order moral judgments, a number of criminal attempts to challenge the epistemic competence of measures, investigations, trials and sentences. In the law scholars have instead begun to focus on the in- ICTs. I approach these different arguments through last decades, however, human rights have increas- stitutional and political dimensions of criminalization, a loose analogy with Ancient Pyrrhonian Skepticism ingly been invoked – in the international criminal law both at home and in international contexts. The aim as a panoply of skeptical modes, i.e. of argumentative discourse as well as in the jurisprudence of both the of the panels that we are proposing is to provide an techniques ,forms of argument by which skeptics put ECtHR and the ICHR – as reasons to expand the use opportunity for a group of scholars working on these appearances and thoughts into opposition in order of criminal law for the sake of the victims of the crime. issues to share their current work in this area. to suspend judgment; to avoid affirming anything. The core argument is that the effective protection of Through a philosophical analysis I examine this pano- the victim’s human rights from State agents’ or third Participants Jakob Holtermann ply of “skeptical modes” focusing on the underlying parties’ aggressions necessarily requires the inter- Ryan Liss concepts of truth, knowledge, proof, history, doubt, vention of criminal law. Under this logic, not only shall Francesco Vigano even of reasonable doubt applied in the epistemic the aggression against the victim’s human rights be Alain Zysset critique. Is it one critique or are there many? If many, criminalized in abstracto, but the punitive powers shall Moderator Vincent Chiao are they consistent or do they contradict each other? also be exercised in concreto – the investigations, the Room 8B-3-39 The aim of this examination is to get a better under- arrest of the suspect and his trial, as well as the con- standing of and hence, ultimately, a better ability to viction and sentence of the person eventually held critically assess the kind of legitimacy challenge that liable for the crime becoming thereby the very object Jakob Holtermann: Mapping the Modes of ICT- is constituted by the epistemic critique. of a ‘positive’ obligation to protect the victim’s human Scepticism : A Taxonomy of the Epistemic Cri- rights. This paper aims to critically discuss these de- tiques of International Criminal Tribunals Ryan Liss: Crime at the Limits of Sovereignty velopments, which are often accused of perverting In this paper I examine the widespread epistemic The jurisdictional framework governing the pros- the historic logic of human rights, originally thought critique of international criminal tribunals (ICTs) as a ecution of international crimes is unique. While the as tools to protect the individual against the abuse of legitimacy challenge. This with a view to framing the prosecution of domestic crimes is ordinarily limited power by the State. epistemic critique in the broader context of a general to the courts of a state with a connection to the of- comprehensive taxonomy of legitimacy challenges fence or offender, such connections are not required Alain Zysset: Right Crime and Courts: First that can plausibly be raised against ICTs. As a first in the context of international criminal prosecutions. Steps toward a Unitary Account of International step in this analysis I distinguish between two distinct Those accused of international crimes are often tried Law but often confused legitimacy questions: First – the before the courts of foreign states unconnected to It is widely acknowledged that human rights law axiological question – having to do with whether truth- the offence and before international tribunals. This (HRL) and international criminal law (ICL) share core finding capacity is in fact a reasonable desideratum raises the question of whether such a framework is conceptual and normative features. Yet, the litera- for an ICT. Is it at all reasonable to expect that ICTs legitimate. I identify three leading justifications in the ture has not yet reconstructed this underlying basis can deliver truth about past atrocious events or should current literature for this unique jurisdiction to punish in a systematic way. In this contribution, I lay down we simply stick to the traditional desiderata discussed international crimes: (1) the “humanity” theory; (2) the the basis of such an account. Starting with theory, I in legitimacy debates like deterrence, reconciliation, “gravity” theory; (3) and the “state failure” theory. I argue, first identify a similar tension between a “moral” and retribution, peace, etc.? Secondly, there is the epis- however, that these three theories fall short, leaving a a “political” approach to articulate the foundations of temological question proper. How good are ICTs in persisting legitimacy problem for international criminal HRL and ICL and explain where those approaches fact at finding the truth/producing reliable knowledge law. In response, I offer an alternative answer to the exactly clash. With a view to bring the debate forward, about past events such as genocide, crimes against question of what makes international crimes unique. I then turn to the practices of HRL and ICL and ex- humanity and war crimes? The first question consti- International crimes are those that challenge the con- amine which of those approaches best illuminates tutes a precondition for the meaningful investigation ceptual possibility of an international order organized some salient aspects of the practice of international of the second since it is irrelevant to study how virtu- around a system of sovereign states. Criminal punish- courts. I then argue that the political approach best ous ICTs are as epistemic agents If everyone agrees ment has been justified by some scholars on the basis unifies HRL and ICL. While preserving a distinct role

Concurring panels 212 Concurring panels 213 125 BANKING, INVESTMENT powers in relation to their encroachment on the State specifically constitutional courts. The roadmap of the 126 coNTEMPORARY PROBLEMS AND PROPERTY RIGHTS (and the EU’s) regulatory powers, but also safeguard argument is the following. The first section will provide IN PUBLIC LAW IN TIME OF CRISIS the autonomy of the EU legal order. The paper shows a conceptual insight into the methodological use of that ICS decisions will not be among the rules that can the concept of authority outside of the nation-state have direct effect or be used to assess the validity of and international investment law. The second part will Participants Monica Cappelletti and Participants Mario Barata EU law. The ICS creates a complete system of rem- study in detail the different cases and scenarios in Lucia Scaffardi Andres Delgado Casteleiro edies at international level wherein its remedial powers the relation of constitutional courts with investment Anita Blagojevic and Yehonatan Givati are limited in scope both in terms of which remedies arbitrators, by developing four different categories Melina Girardi Fachin Jose Gustavo Prieto Munoz are available and their enforcement at domestic level. of interaction: cooperation, coordination, toleration, Jubran Manal Totry Maksim Usynin and resistance. Finally, the third section will develop a Sofia Ranchordas Moderator Mario Barata Yehonatan Givati: Of Snitched and Riches: IRS specific strategy of legitimation for investment arbitra- Octaviano Padovese Room 8B-3-49 and SEC Whistleblower Rewards tion for further cases. Mayu Terada The past decade has seen a dramatic shift in the Moderator Monica Cappelletti enforcement of tax and securities laws, from an almost Maksim Usynin: Investor-state arbitration and Room 8B-3-52 Mario Barata: The Investment Court System in exclusive reliance on designated agents for the detec- the evolutionary development of the treatment the Comprehensive Economic and Trade Agree- tion of violations of these laws to a great reliance on of investor misconduct ment (CETA) on Trial: German, Canadian, and whistleblowers, driven by the desire to obtain a reward. Critics of investment law allege that its nature and Monica Cappelletti and Lucia Scaffardi: “Big European Judicial Hurdles This shift has led to the payment of hundreds of mil- structure are fundamentally biased towards investors Data” in the Courts: legal challenges for the Last October, Canada and the European Union (EU) lions of dollars in whistleblower rewards by the IRS and and do not provide states and tribunals with effective fundamental right to protect personal data signed the Comprehensive Economic and Trade Agree- the SEC in recent years. Although legal scholars have means to address investors’ misconduct. However, The recent explosion of the ‘big data’ù phenom- ment (CETA). However, the agreement has generated devoted much attention to this shift in law enforce- arbitral practice shows a line of evolutionary develop- enon is opening a new phase of reflection on the fun- legal challenges in Canada Germany, and may end up in ment, this literature has failed to explore one central ment, moving towards more balanced and proportion- damental right to protect personal data. Since the first the Court of Justice of the European Union (CJEU). The question relating to the use of whistleblower rewards: ate application of the clean hands doctrine, in cases theorisation of right to privacy in the US context and Federal German Constitutional Court has expressed in How much should the IRS and the SEC pay whistle- where both parties were observed behaving badly. Dif- the constitutional recognition of this right even in the an injunction proceeding, serious doubts as to “whether blowers? This Article fills this gap in the literature by ferent approaches have emerged for the treatment EU Charter of Fundamental Rights, different Courts (at the EU can lawfully transfer “sovereign rights in relation developing a new economic model to capture the of misconduct. Initially, tribunals concentrated on the national, European and international levels) has faced to judicial and quasi-judicial dispute resolution systems deterrent effect of whistleblower rewards. Using this legality requirements in IIAs; later this requirement was the protection of personal data in order to define legal “to other systems (i.e. to the proposed investor-state model, this Article highlights three major determinants adopted as implied, in the absence of any treaty guid- safeguards and limits to an undetermined exploitation dispute settlement (ISDS) “court” mechanism)”. In of the minimal deterring whistleblower reward: the gain ance. Misconduct at the post-establishment phase of these data for public or private interests without the Canada, a statement has been filed at the Federal to the violator from violating the law, the personal cost has been addressed under the admissibility criterion, consent of the data subject. This framework is recently Court of Canada claiming that CETA is unconstitutional to the whistleblower, and the likelihood of a successful rendering such claims inadmissible. Subsequent tri- under reform, since the European Union has just ad- because it “guts and extinguishes the constitutionally report. Three counter-intuitive findings emerge from bunals allowed states exercising bona fide regulatory opted a new common regulation and concurrently the protected Judiciary in Canada by creating foreign tri- this analysis: first, reports of less severe violations of rights to mitigate the misconduct, resulting in no treaty European Court of Justice has set a ground-breaking bunals” for ISDS arbitration. A third obstacle may reside the law may deserve a greater whistleblower reward; breach. Notably, claims for excessive mistreatment decision (C-203/15 and C-698/15) lately, as well some in the possible triggering of Article 218 of the Treaty on second, different whistleblowers may receive different survived this threshold, suggesting a more balanced Member States are debating on the introduction of the Functioning of the European Union by Belgium, if rewards for providing the same type of information; approach than simply dismissing the claim. Recent different limits to data retention. After a clarification of it requests that the CJUE render an Opinion as to the and third, a greater likelihood of a successful false cases introduced the limitations on damages due to the term ‘big data’ù the paper aims to analyse the most compatibility of CETA with the European Treaties due report may require a greater whistleblower reward. investors’ contributory fault and allowed operational recent decisions of European and national Courts on to the fact that the Investment Court System does not Recently adopted regulations ignore the three above- counterclaims. The role of tribunals is shifting: while data protection in order to highlight common trends guarantee the respect for the autonomy and unity of EU mentioned factors and should be amended. originally they were reluctant to play any role in mis- in delimiting new limits and safeguards to protect per- law. Consequently, the full entry into force of CETA may conduct cases and dismissed them, now tribunals are sonal data. be years away in light of the legal challenges that have Jose Gustavo Prieto Munoz: When Constitu- increasingly involved. This change poses questions to already been or may be filed in the near future and this tional Courts Meet Investment Arbitrators: the suitability of arbitral tribunals in evaluating matters Anita Blagojevic and Melina Girardi Fachin: presentation seeks to address the concerns that have Construction of Legitimacy in the International of primarily domestic law and poses risks to tribunals’ International legal efforts to fight terrorism: been expressed against the Investment Court System Legal Arena legitimacy Some constitutional implications foreseen in the Agreement. Investment arbitrators no longer solve disputes, It is well known that the nature of international legal but instead exercise a unique type of public author- efforts to fight terrorism has experienced a substantial Andres Delgado Casteleiro: The Investment ity in the global legal space. It is true that disputes change after 9/11. With the United Nations Security Court System as a public law adjudicator: An arising from foreign investments are not new in inter- Council Resolution 1373, and other post-9/11 Security analysis from the perspective of its effects un- national law; however, a new type of public authority Council\’s resolutions as well, the Security Council der EU law emerged from within the investment regime itself to has created international anti-terrorism standards The Investment Court System (ICS) envisaged address conflicts unlike those of previous centuries, that all member states are bound to follow. However, in the new generation of EU Free Trade Agreements which usually centered exclusively on matters aris- at the same time, states have received a wide range and the proposal for a Multilateral Investment Court ing from expropriations. That investment arbitrators of discretion in the interpretation of the respective (MIC) have been heralded as part of a public law turn can exercise this type of authority implies legal so- resolutions. Not suprisingly, this resulted with some in International Investment Law aimed at providing ciological and moral challenges to their legitimacy. On constitutional questions and implications. The aim safeguards to the State regulatory space. This paper these premises, I argue that legitimacy on investment of this paper is to analyze respective constitutional argues that the limited effects that ICS decisions will arbitration could be constructed from the non-hierar- implications and the starting thesis of our research is have under EU law not only further restrict the ICS chical interactions with national adjudicative bodies, that, in general sense, new laws adopted in individual

Concurring panels 214 Concurring panels 215 states in order to comply with the anti-terrorism reso- Jurists should pay more attention for what is going on 127 coNSTITUTIONALISM (Riggs 1966) or “Deep State” (Merieau 2016). This pa- lutions, with the focus on enhancing national security, in constitutional courts around the world in order to AND PLURALISM per seeks to analyze how in the post-1992 context, have implications (primarily) on separation of power try to adequate the constitutional domestic decisions post-coup contestation has led constitutional drafters and protection of human rights. and, as far as possible, they should avoid to stay in the to adopt postpolitical constitutions, under both civil- provinces. In this recent turning, which jumped-off Participants Rehan Abeyratne ian (1997) and military rule (2007, draft 2015). Elite bu- Jubran Manal Totry: Spatial Rights Discourse in the second half of the last century, Constitutional Eugenie Merieau reaucrats, civilian and military, have preferred this type Throughout the last two decades, there has been a and International courts are ignoring, now and then, Marco Bocchi and of constitution because it gives them the means for significant proliferation of Non-Governmental Organi- the territorial bounds and grasping new informations Tommaso Soave advanced bureaucratic cooperation against elected zations (hereafter: NGOs) whose central focus is to ad- and knowledges due to necessity to produce more Patricia Jeronimo politicians. It therefore makes it possible to retain an dress spatial inequality and promote a “Spatial Rights solid decisions, and perhaps, sedimenting a new un- Cormac Mac Amhlaigh illiberal status quo despite a seemingly democratic Discourse”. This discourse is derived from general derstanding on global constitutional order. Although Flavia Piovesan constitution. human rights norms and seeks to insert values such global constitutionalism has flunked out so many Moderator Rehan Abeyratne as equality, democracy, community participation, and times, a new machinery of ideas and terminologies Room 8A-4-17 Marco Bocchi and Tommaso Soave: Judicial social and distributive justice into the fiscal planning rose up. We could point out that those new theories Balancing as a Situated Exercise. The Case of procedure as well as other legal arenas. I concen- and methods are more persuasive. Nevertheless, the “Necessity” in WTO and ECHR Jurisprudence trate of Advocacy Organizations who lead top-down rhetorical aspect persists to show up over and over. Rehan Abeyratne: Dominion Constitutionalism Through the proposed paper, we aim to problema- policies and who challenge national spatial policies. The performative language ferrets out the meaning in Sri Lanka tize the argument whereby the balancing of compet- National and translational NGOs became the watch- and texture of the technological language. On February 4, 1948, Sri Lanka (then Ceylon) ing principles by international courts and tribunals dog in safeguarding human rights principles and use achieved “fully responsible status within the British is a sign of the progressive constitutionalization of the legal system to execute their agenda. The courts Mayu Terada: Legislation of Special Law and its Commonwealth of Nations.” The events leading up the international legal order. Instead of engaging in a are crucial players in creating changes in the spatial Necessity on National and Local Level: -A study to 1948 and the political and social ramifications of purely theoretical discussion, we seek to illustrate our rights discourse and this presentation explores these on Legal Restrictions of Drones in Japan the dominion period (1948-72) have been the subject point by analyzing the necessity test as performed by changes in depth. In contemporary society where change is rapid, of in-depth study. Ceylonese leaders’ shrewd nego- the European Court of Human Rights (ECtHR) and the legislation of special law is often used instead of leg- tiations to achieve dominion status, their neglect of Appellate Body of the World Trade Organization (WTO Sofia Ranchordas: Social Welfare Spies: The islation of permanent law. Although the definition of minority rights and representation, and their failure AB). In particular, the ECtHR routinely adjudicates on Privatization of Public Decisionmaking special law varies and it is different from situations to anticipate the rise of Sinhala-Buddhist nationalism whether a State’s limitation on the rights enumerated This paper discusses the growing privatization of and people, in general, it is necessary to think about and violent Tamil opposition have been thoroughly in Articles 8 through 11 of the Convention is ‘necessary public law enforcement in the context of social welfare the position of special law in this modern society, investigated. The legal implications of dominion status, in a democratic society’ to pursue certain countervail- fraud prevention in the United States, Australia, United including discussions whether the legislation is ap- however, have not been as fully explored, particularly ing societal values such as health, public morals, or the Kingdom, and the Netherlands. These practices are propriate for the current situation that many special with respect to the case law of this period. This Article economic wellbeing of the nation. In the same vein, problematic in both civil law and common law jurisdic- laws are made. In this paper, from looking at the laws hopes to fill that gap. It argues that constitutional law the WTO AB is often tasked with assessing whether tions for a number of reasons. First, the contractual concerning the regulation of drones and the establish- judgments of the Ceylon Supreme Court and the Privy a trade-distortive measure is ‘necessary to protect’ù and administrative relationship between public bodies ment of a special law and ordinances related to the Council reinforced doubts as to the true nature of do- one of the non-trade objectives listed in Article XX and these “social welfare spies” are ill-defined. This regulation of drones, current situation and issues of minionhood, particularly as to Ceylonese sovereignty of the GATT. Our core idea is that, while both courts has raised concerns regarding their accountability society and legal regulation are considered. Plus, the and the role of the judiciary in Ceylon’s constitutional engage in a similar judicial exercise, they do so from a and the degree of supervision exercised by public current situation and issues of drone restraints in gen- scheme. The constitutional jurisprudence in this pe- situated standpoint, and that this ‘situatedness’ has a bodies. Second, these privatization practices have eral are examined. The regulation of drones is picked riod also sees litigants and courts grappling with the profound impact on the outcomes of the necessity test. further eroded traditional public tasks and the pursue up because it shows one of the interesting situation meaning of dominion status through comparative of the public interest. Third, the outsourcing of anti- of special legislation. The drones (unmanned aerial analysis. The regular citation to cases from the “set- Patricia Jeronimo: Courts, Cultural Diversity fraud enforcement tasks has been detrimental for due vehicles), which were originally developed for military tler dominions” of Australia, Canada, and South Africa, and Legal Pluralism in Europe process rights of welfare recipients as it increases the purposes are now used by private enterprises through shows how the legal elite in Ceylon, much like their Domestic courts in Europe are increasingly asked risk of procedural errors and illegal evidence gather- development and technology development of the ma- political brethren, saw themselves as loyal subjects of to arbitrate legal and cultural conflicts between the ing. We argue in this paper that social welfare spies chine and the numbers of drone usage is increasing. the British Empire more akin to the “settler dominions” law of the state and the norms and practices of mi- are susceptible of endangering the transparency and Private companies use them for transporting monitor- than their revolutionary neighbors, India and Pakistan. nority groups in a growing context of legal pluralism. openness of administrative procedures, the right to a ing surveying and surveillance of companies and other It is believed that the judiciary is often better suited due process, and the privatization of the public good. items. However, the drones may be used for attacking Eugenie Merieau: Illiberal Constitutionalism than the legislator to find reasonable accommoda- This paper draws on recent Dutch case-law and dis- someone etc. thus it is the subject of various special and the Post-Political Constitution in Thailand tions between the needs of minority groups and other cusses the role of courts in the outsourcing of public laws and regulations in the world including Japan. Authoritarian constitutions are usually defined as competing interests, on a case-by-case basis. On the law enforcement. Dutch courts have recently shed having “the form of a constitution, but without fully ar- other hand, it is acknowledged that there is a need light on the legal nature of public tasks, the admissibil- ticulated institutions of limited government” (Ginsburg to raise the judges’ awareness of potential cultural ity of anonymous reports, and the contractual relation- and Simpser 2005). In Thailand, however, institutions biases in their approach to minority claims and to ship between public bodies and private actors (e.g. “no of limited government lie at the very core of illiberal improve their sensitivity to diversity through training. cure, no pay” contracts). constitutionalism. Rather than empowering the ex- This presentation will address some of the many chal- ecutive, post-2007 semi-authoritarian constitutions lenges faced by domestic court judges when dealing Octaviano Padovese: Paul de Man and Constitu- have disempowered to the widest extent possible the with cultural diversity and legal pluralism. It will take tional Rhetoric executive and the legislature. Using modern consti- the case law of Portuguese higher courts as its case In a groundbreaking article, The Rise of World Con- tutional techniques, they recreated a regime in which study and compare it with trends from other domestic stitutional Constitutionalism, Bruce Ackerman spares elected representatives are hemmed in by appointed jurisdictions in Europe. no effort to describe a new global constitutional’s era. bureaucrats in the well-known “bureaucratic polity”

Concurring panels 216 Concurring panels 217 Cormac Mac Amhlaigh: Does Legal Theory have 128 democrACY AND HUMAN RIGHTS result dispute and Administration court will adjudicate consider IHRL claims in the light of each respective a Pluralism Problem? administration law dispute among the political parties constitution. I argue that constitutional design influ- Legal pluralism is hardly a new phenomenon. Be- and election organiser. This paper is argue that there ences on the frequency of human rights claims in ju- fore the paradigm case of law emerged in the state in Participants Michael Pal is great possibility to simplify the system. Regardless dicial cases but is not the single determinant as to the the early modern period, the world, we are conven- Fritz Edward Siregar the context and the size of Indonesia as archipelago extent to which courts apply IHRL domestically. This tionally told, was awash with legal pluralism. Even the Maureen Duffy country, but through merger process, it will able to research shows judicial claims of IHRL violation may centralisation of law and politics in the state failed to Michael Mohallem centralise election criminal violation and the idea to be divided in a) decisions applying IHRL, b) decisions stamp out legal pluralism and two ‘waves’ of legal plu- Deyana Marcheva and create an Election Court is a possibility. considering IHRL claims and finding no violation, and ralism prevail in the era of the state; one spear-headed Ekaterina Mihaylova c) decisions dismissing or rejecting the application of by legal anthropologists and sociologists, looking pri- Paul Scherer Maureen Duffy: Courts As the “Bedrock of Our IHRL. I propose to classify states as showing “moder- marily at non-European, often post-colonial states Moderator Michael Pal Democracy” ate resistance to IHRL”, “incipient openness to IHRL”, and conceptualised a pluralist universe of official and Room 8A-4-35 Courts traditionally check unconstrained govern- and “advanced integration of IHRL into domestic law”. unofficial legal orders and the other dominated by mental power, operating independently from politi- legal theorists, systems theorists, public and private cal branches of government. An alarming shift is oc- Deyana Marcheva and Ekaterina Mihaylova: international lawyers and comparative lawyers and Michael Pal: The Comparative Constitutional curring in some places, suggesting an unexpected The Lack of Public Law Concept of Authority in usually focuses on official legal systems. This paper Politics of Voter Suppression vulnerability of national courts to attack by extremist Bulgaria (Why Does Bulgarian Judicial System will focus on one issue in this explosion of interest in I argue that voter suppression should be under- governments. In Poland, a crisis has left the Constitu- Reform Continues To Fail) legal pluralism: the ability of conventional legal theo- stood as a comparative phenomenon and trace the tional Tribunal seriously wounded in its constitutional Bulgarian judges have recently participated in a retical accounts of law to account for legal pluralism. constitutional politics of the practice. Voter suppres- functioning. Poland’s elected Government has sys- number of protests to defend their independence Legal pluralists generally assume that the classic sion involves deliberate attempts to craft electoral laws tematically obstructed the Tribunal in its mandate to against political interventions in the justice system. accounts of law and legal systems such as those of so as to dissuade or prevent citizens from casting bal- review laws for constitutional compliance, changing Judicial activism is stigmatized as illegal, but turned Kelsen Hart and their acolytes fail to account for nor- lots in elections. Voter suppression stands as a staple the membership of the Tribunal, changing the funda- out to be the only instrument for the judges to raise mative orders which do not conform to their models. of political and legal contestation in the United States mental way that cases are decided, and enacting laws their voice against the continuing failure of the judicial As such, they argue, standard theoretical accounts of centering particularly in recent years around restrictive otherwise undermining the Tribunal’s ability to issue reform in post-communist Bulgaria. In this paper we law are not fit for purpose in a legally pluralist world. voter identification rules and the Voting Rights Act. constitutional rulings. These measures have made it shall discuss the communist legacy in the construc- This paper will interrogate this assumption. Arguing Election law scholar Richard Hasen has labeled these impossible for the Tribunal to meet its constitutional tion and functioning of the judicial power under the that the issue is necessarily one of degree, it will shows disputes over the ground rules of electoral politics the obligations and allow the Government to violate the new democratic constitution of Republic Bulgaria that conventional legal theory has more resources for “Voting Wars”. Despite attempts at voter suppression Constitution with impunity. In the U.S., Trump began his of 1991, and especially the hierarchically organized legal pluralism than its critics allow. by governments in other democracies, the practice presidency with multiple orders affecting human rights. and extremely centralized Prosecutor’s office that has received little scholarly attention outside of the One such order was the “Muslim Ban” under which participates in the decisions for recruitment and ca- Flavia Piovesan: Power of Law vs. Power Of United States. Examples of the “Voting Wars” can be Trump blocked people from seven Muslim countries reer development of judges. The constitution of 1991 Force: Fighting Terrorism Or Human Rights? found in Canada, Australia, the United Kingdom, South from entering the U.S., including those legally allowed proclaims the separation of powers and the indepen- This reflection aims the challenges and pros- Africa, and India, among others. I argue that voter sup- to enter. Court orders were issued within hours of his dence of the judiciary. However, the development of pects for confronting the religious-based terrorism pression must be understood as a problem plaguing order, which set people free from detention and oth- Bulgarian justice system in the last 25 years goes from the perspective of international human rights democracies generally and consider the implications erwise helped them to enter the U.S. This is just one hand in hand with corruption practices and political law. The contemporarily of the theme is undeniable for democratic practice constitutional design, and ju- example of the important role that courts can play to pressure over judges that call into questioning the stamped on adverse events that take contemporary dicial review of election laws. Constitutional design protect the rule of law from unconstitutional political constitutional principles. We suggest that the very scene. Based on this assumption two central issues must antiicpate voter suppression and take steps to whims. This paper argues that the attack on the Tribu- lack of an adequate public law concept of authority in arises: the first on the impact of terrorist attacks on ensure fair election administration is protected by the nal in Poland represents a threat that echoes beyond post-communist Bulgarian law has led to systematic contemporary human rights agenda, and the second constitution. Courts have struggled to respond to voter Poland’s borders. deficiencies in both public law and the justice system. about the main challenges and prospects for confront- suppression, and judicial review of democracy must The new democratic constitutional framework is insuf- ing the religious-based terrorism from the perspective also be recast to account for partisan-minded interfer- Michael Mohallem: Constitutional design or ficient in itself to produce an independent judiciary in of the integration of International Law of Human rights ence with electoral integrity. apex courts? The gatekeepers of international Bulgaria without reforming the public law discourse by (here also comprised international Courts rulings) and human rights law in South American states clearing up the communist legacy and substantiating the constitutional systems and Courts. Fritz Edward Siregar: Elections Supervisory International lawyers commonly claim that the the concepts of rule of law and law’s authority. Board vs Election Court : Finding the Right Ad- most effective way of implementing international law is judication System by internalising treaties and allowing domestic courts Paul Scherer: The impact of the German Con- The duty of care and enhance the quality of an elec- to enforce them. In line with this view, recent consti- stitutional Court in the context of civil partner- tion shall not bound by one parties. Political parties, tutional developments in South America produced ships government, civic society and public shall be partici- remarkable permeability to international human rights The impact of the German Constitutional Court in pate to increase the quality of election to make sure law by not only allowing direct judicial enforcement as the context of civil partnerships Since the introduction quality of democracy that we intend to achieve. In order also giving preeminence to international over domes- of the legal institution of the registered civil partner- to create a better election, many actors has been es- tic law. The practices of courts, however, reveal differ- ship for same-sex couples in 2001 the German Fed- tablished in Indonesia. Election Commission had been ent methods of dealing with domestic judicial claims eral Constitutional Court decided several cases in this created to organise the election. Election Supervisory of international human rights law (IHRL) violations. field of law. Many unequal treatments of (same-sex) Board will supervise and reporting violation of election Courts’ responses to concrete cases ultimately give registered civil partnerships and marriage were de- criminal law in which Election Ethic Council will adjudi- distinct meanings to equivalent constitutional norms clared unconstitutional. In applying the strict standard cate ethical violation of election organiser. Indonesia in different countries. Thus, the purpose of this paper of the review in connection with discrimination based Constitutional Court has the authority to settle election is to analyse how ten South American apex courts on sexual orientation, exclusions of registered civil

Concurring panels 218 Concurring panels 219 partners violated the general principle of equality be- 129 eNVIRONMENTAL LAW an essential part of the preservation of water supplies. and for Congress has evidenced the shortcomings fore the law (Art. 3 sec. 1 GG). Some have argued, that IN LAW AND POLITICS In the context of the European Union, one of the main of the Paris Agreement model when there is no politi- in field of “Lebenspartnerschaft” the Court has already pieces of secondary legislation on this matter – the cal will at the executive and legislative levels. Part III replaced the legislator. This socio-legal research proj- so-called Water Framework Directive (WFD) – adopts considers the role American courts may play in prod- ect aims to analyse the German Federal Constitutional Participants Helga Haflidadottir an equally mixed notion of water. The WFD states in ding executive and legislative climate action in this Court’s decisions on Lebenspartnerschaft to explore Fulvia Staiano its Preamble that “water is not a commercial product context, and highlights the obstacles presented by the the interdependence between law, jurisprudence and Rowie Stolk like any other but, rather, a heritage which must be “political question doctrine” and redressability. Part IV social transformation. What is the role of the Court Patricia Galvao Ferreira protected, defended and treated as such”. To fulfil the argues that the case of Urgenda v. the Netherlands within the transformation of social realities? Does it Anne Dienelt environmental objective of protecting and restoring offers valuable lessons for how American courts can accelerate social change or does it only legitimize Veronika Tomoszkova all bodies of surface water and groundwater, Art. 9 of use international environmental law to help address already existing social postulates, or both? In what Moderator Anne Dienelt the WFD requires Member States to take into account these two challenges. way is the Court configured in the legal discourse and Room 8A-4-47 the principle of recovery of costs of water services in how does it (re)act in each specific actor field? What accordance with the polluter pays principle. National Anne Dienelt: Human Rights Courts and the En- is the influence of transnational interactions between water-pricing policies should then ensure a complete vironment courts of different levels? To answer these research Helga Haflidadottir: Climate Change and Judi- recovery of the costs associated with the extraction International human rights law has faced an unique questions qualitative social research methods, such cial Enforcement and provision of water. evolution over the past decades, mainly based on the as discourse analysis, will be used. With 2016 having been the hottest year on record extensive jurisprudence produced by its courts. In this the actuality of Climate Change intensifies the need Rowie Stolk: Global climate litigation as 21st paper, I analyse human rights that protect the environ- for global action. Simultaneously, the issue of Climate century public law litigation ment. I will first show that based on courts’ case law Change highlights the potentials and limitation of in- In 2015 a group of Dutch citizens, united in the the interpretation of some human rights has evolved ternational law. This paper is concerned with the power platform Urgenda, became the first in the world to win to protect the environment. Second, despite the dif- of international law to mitigating climate change. It ex- a lawsuit, arguing that the climate policy of the Dutch ferences in legal bases, the courts have referred to amines the impact that international judicial enforce- government failed to protect its citizens. The case of each other’s case law in this regard, thus demonstrat- ment can have on state compliance with environmen- Urgenda paved the way for similar legal strategies ing a dialogue of courts to provide for environmental tal obligations. In doing so, the study focuses on the throughout the world. This form of public law litigation, protection. The starting point for both observations is ICJ and its rules on standing. In particular, it analyses as Abram Chayes called it in a seminal article in the case law regarding the protection of the environment the potential for individual states to bring a violation 1970’s, poses considerable challenges to several legal as such and/or of components of the environment via of environmental obligations before the court. The systems that traditionally feature a clear constitutional human rights. While some human rights treaties con- paper will demonstrate that in line with developments preference for individual dispute settlement, typified tain an express human right to the environment, other in international law environmental obligations can be by the absence of a constitutional court, limited ju- treaties are silent on the issue. Nevertheless, under the classified as erga omnes obligations, which provides dicial review of legislation and a general hostility to auspices of almost all human rights treaties there ex- all States with the right to instigate proceedings before public interest litigation. Climate litigation tends to be ist a protection of the environment or its components. the ICJ. Furthermore based on State compliance with at odds with this paradigm because its focus is not on This paper aims at analyzing the various approaches the ICJ judgements the paper suggests that the Court the individual application of norms, but rather on the of courts considering environmental protection via has considerable power to induce compliance with in- enforcement of constitutional or transnational envi- human rights. In addition, the dialogue of courts in ternational obligations. However, the court’s decisions ronmental values. In this paper, I discuss the inherent this context will be assessed as well. (this being especially true of provisional measures and tension between individual and collective justice. I also other interim orders) have not necessarily induced question the legitimacy of climate litigation by interest Veronika Tomoszkova: Substantive Content of compliance with international obligations in the past. groups or individuals and its implications for the role the Individual Right to Healthy Environment The paper argues that characterising environmen- of the courts seen from the perspective of both the Recent changes in climate and global environment tal obligations as erga omnes obligations, however, separation of powers and effective legal protection. show that the environmental protection is one of the enhances the likelihood of compliance with judicial most important positive obligations of the states. The enforcement. Patricia Galvao Ferreira: Judicial Review of Ex- constitutions can reflect this obligation in two ways – ecutive Climate Action: Can International Envi- by making environmental protection one of the state Fulvia Staiano: The Judicial Construction of the ronmental Law Play a Role? goals and/or by giving individuals the right to healthy Right to Water in the European Union “A wait-and-see policy may mean waiting until it is environment. Such right can serve as powerful tool, In international and European law, water has been too late.” (Climate Research Board Carbon Dioxide by which individuals can force the states to fulfil their framed in a multiplicity of ways: economic good, com- and Climate: A Scientific Assessment 1979). This paper positive obligation to protect the environment. How- mon good, environmental resource and human right. analyzes the role of international environmental law ever, at least in Central and Eastern Europe there is a However, the most common approach towards this in overcoming some of the obstacles for American significant obstacle to effective use of this tool – the essential element for human life is a mixed one. The courts providing judicial review of executive and legis- absence of clear definition of the substantive content majority of supranational and domestic legal sources lative decisions to promote or to refrain from promot- of the right to healthy environment. This means that consider water as both an economic good and an ing climate policies. Part I describes the shortcomings individuals do not know, when to complain about the environmental resource, as well as to some extent a of the voluntary nature of state commitments under violation of this right, and when they do the courts have right to be guaranteed to everyone in conditions of the 2015 Paris Climate Agreement, which resulted difficulties to assess, whether the violation has really equality and non-discrimination. While a human right from a great compromise by the group of developed occurred. So far, most of the environmental litigation to water appears to be progressively emerging as a countries and emerging economies with the largest is based on procedural environmental rights or right to norm of customary international law, environmental shares of global greenhouse gas emissions. Part II environmental information, but not on the substantive and economic consideration are also being seen as argues that the 2016 American election for President part. The goal of this paper is to present the structure

Concurring panels 220 Concurring panels 221 of the substantive right to healthy environment and to 130 coNSTITUTIONAL REVIEW I to ultimately protect the core of national constitutions, 131 coNSTITUTIONAL COURTS I discuss possible approaches to defining its content. such as fundamental rights, national competences, To what extent shall the content depend on statutory which not transferable to the EU, or national constitu- legislation? If environment is global, is there a universal Participants Hannele Isola-Miettinen tional identity. This competence to review EU l Participants Nasia Hadjigeorgiou standard for its substantive content? And what if other Leopoldo Gama Susana Ruiz-Tarrias fundamental rights are violated through deteriorated Darinka Piqani Agnieszka Frąckowiak-Adamska: National Renata Deskoska environment (right to health property privacy)? Agnieszka Frąckowiak-Adamska Courts as Guardians of the Charter in the EU Alina Cherviatsova Monika Polzin Area of Freedom Security and Justice? The Younsik Kim Moderator Darinka Piqani Obligation to Assess whether other Member Moderator Nasia Hadjigeorgiou Room 8B-4-03 States Protect Fundamental Rights Room 8B-4-09 Recent case law of the Court of Justice of the EU – N.S. opinion 2/13 on the accession of the EU to Hannele Isola-Miettinen: Judicial Review of the ECHR and Căldăraru – shows that the principle of Nasia Hadjigeorgiou: Conflict resolution in Legislation mutual trust, even if of utmost importance for creating transitional societies: Some guidance for the The paper concerns the judicial review of legis- the AFSJ, is not an absolute one. Courts of Member judiciary lation in European Union, the methodology to study States are empowered and at the same time obliged The paper is concerned with a worldwide phenom- legislation and the Courts’ reasoning where the factual to not transfer a person if there is an evidence that enon that is particularly prevalent in transitional societ- aspects play a role. The paper asks, is the Court of Jus- the other Member State does not ensure an adequate ies, whereby divisive conflicts that should have been tice improving the quality of legislation. The paper an- protection of fundamental rights, especially those pro- resolved in the political arena, are in fact adjudicated swers through the example to this question, the Courts’ tected by the Charter of Fundamental Rights of the EU. by the judiciary. This tendency is encouraged by the judicial review is effect and improving the quality. The paper will try to answer the question whether the political situation that prevails in transitional societies, courts are ready to bear this burden – do they have the the changing perceptions among the judiciary and the Leopoldo Gama: Judicial activism and the Rule means of assessment and of collecting the evidence, adoption of new constitutional documents that, either of Law on whom the burden of proof should be placed. It will explicitly or implicitly, push courts to play a more active The paper concerns the judicial review of legislation also analyse this new obligation as a shift of the power role in the resolution of political dilemmas. Further, the in European Union, the methodology to study legislation from the executive authorities (before in the extradi- paper argues that when judges are faced with this task, and the Courts’ reasoning where the factual aspects tion procedure done by the Ministries) to the judiciary. they tend to exclusively base their reasoning on hu- play a role. The paper asks, is the Court of Justice im- man rights arguments. While convenient, using human proveing the quality of legislation. The paper answers Monika Polzin: The Legitimacy of International rights as proxies for more complex political arguments through the example to this question, the Courts’ judi- Judicial Review in a State of Emergency can undermine the quality of both the judgment and cial review is effect and improving the quality. Human Rights and their relevance in a state of remedies provided by the court. Thus, when courts emergency have become (once again) an important adjudicate such conflicts they should rely on constitu- Darinka Piqani: National Constitutional Review topic in Europe. Currently, France, Ukraine and Turkey tional guiding principles. The main advantage of these of EU Acts: Limits, Dilemmas and Constitutional have derogated from the European Convention on Hu- principles which should be used either instead of hu- Dialogue man Rights (“ECHR”) due to a state of emergency in man rights or as complementary to them, is that they National courts play an important role in the pro- accordance with article 15 of the ECHR. The purpose expressly acknowledge the political and controversial cess of European integration and more specifically of my paper is therefore to focus on the question: What nature of the conflicts at hand, thus result in a more in the application of European Union law in the EU is the legitimacy of international judicial review in a transparent reasoning. Additionally, their more flexible Member States. Ordinary courts have fully embraced state of emergency? The question is of theoretical and nature makes them applicable to a broader range of the European mandate given to them by the Court of normative importance as the legitimacy requirements conflicts and can result in more appropriate remedies Justice of the EU (CJEU) (Claes 2006) on the basis of of international judicial review in a state of emergency upon their adjudication. which they are empowered and obliged to set aside na- help to answer the disputed question what should be tional law that is in conflict with EU law. At the same time, the appropriate standard of review of the European Susana Ruiz-Tarrias: The Constitutional Court national constitutional court as protectors of national Court of Human Rights while applying Article 15 ECHR. of Hungary’s Position After the Last Constitu- constitutional frameworks have been challenged by the The paper is divided in the following parts: 1. Firstly, I tional Amendments various doctrines of the CJEU. primacy of EU law being will briefly analyze the current case law of the European The fall of the Berlin Wall and the collapse of the the major contributor to such challenges. According Court of Human Rights regarding article 15 ECHR. 2. Iron Curtain, led to the reunification of Europe under to CJEU’s vision on primacy of EU law, EU law takes Secondly, I will focus on the discussion on the legiti- the principles of democracy, rule of law and respect precedence over any provision of national law includ- macy of judicial review beyond the state. 3. Thirdly, I for human rights and fundamental freedoms. Proceed- ing national constitutions (Case 11/70 Internationale will enquire whether there exist special legitimacy re- ings for review of the constitutionality of laws are one Handelsgesellschaft). Some constitutional courts have quirements for international judicial review in a state of of the primary strengthening instruments in support claimed competence to set aside EU law on constitu- emergency. The key aspect of my analysis will be the the rule of law and all the countries in Central and tional grounds in reaction (Kumm 2005). The reason is determination of the appropriate standard of review of Eastern Europe have made provision for a Consti- their view on the locus of primacy of EU law: for some the European Court of Human Rights while applying tutional Court. In the Constitution of the Republic of constitutional courts the basis for primacy of EU law is article 15 ECHR: Should there be a broad or a limited Hungary adopted on 20 August 1949 and reformed the national constitution itself and, as a result, primacy margin of appreciation? 4. Finally, I will examine whether by Act XXI of 23 October 1989, the central role of the is or can be limited by the national constitution itself the current case-law of the European Court of Human Constitutional Court upholding the constitutionality (Claes 2016). Many constitutional courts have eventu- Rights meet these legitimacy requirements. of laws is a fundamental innovative element of the ally claimed a competence to review EU law in order parliamentary system. Nevertheless, as a result of a

Concurring panels 222 Concurring panels 223 constitutional amendment in November 2010, a seri- of state with an ineffective constitution and constitu- 132 fAMILY AND DISABILITY RIGHTS apart from being Anti-UNCRPD is overly influenced by ous limitation of the competences of the Constitutional tional review threatening democracy. In this context, Medical model of Disability thereby seriously deviating Court was introduced. The curtailment of the Court’s the paper will analyze the roots and effects of the lack from International human rights standards of right to powers was confirmed both by Act (CLI of 2011) on of independence of the Constitutional Court of Ukraine Participants Sara Benvenuti access to justice of PWDS. the Constitutional Court of Hungary and the new Con- during its short history (from 1996). In order to advance Sanjay Jain stitution of Hungary enacted on January 2012. Since this study the paper will consist of three parts: the Delia Ferri Delia Ferri: The Italian Constitutional Court and then, the Constitution has already been amended in first one will give a comprehensive analysis of some Janine Silga the UN Convention on the Rights of Persons four times. As the Venice Commission states in its contentious decisions of the Constitutional Court of Moderator Sara Benvenuti with Disabilities: Approach with Caution Opinion CDL-AD (2013)012, the Fourth Amendment to Ukraine, which were based on changeable political in- Room 8B-4-19 Italy was among the first countries to sign the UN the Fundamental Law seriously affects the role of the terests instead of constitutional principles; the second Convention on the Rights of Persons with Disabili- Constitutional Court of Hungary in a number of ways. one will consider relations between the Constitutional ties (CRPD) in 2007, and ratified it by Law 18/2009. This paper aims to analyze the constitutional position Court and executive power focusing on the situations Sara Benvenuti: Solidarity and disability at the So far, the Convention has displayed significant influ- of the Constitutional Court of Hungary as a result of where executive power directly interfered in the sphere times of crisis. What Courts do. The case of the ence on case law. This paper focuses on how and to the latest constitutional amendments. of constitutional justice; the last part will address the Italian Constitutional Court what extent the Italian Constitutional Court (ICC) has question of public power in Ukraine by answering the The 2008 economic crisis forced several EU gov- “used” the Convention to advance the protection of Renata Deskoska: The Constitutional Court And question of how and under what conditions the Con- ernments to implement retrenchment policies which the rights of persons with disabilities. It identifies two Political Power: Case Study of The Republic Of stitutional Court of Ukraine could enjoy legitimacy and seriously impacted their welfare systems. The more main (somewhat contradictory) patterns within the ICC Macedonia independence? fragile segments of societies, as it is the case of peo- decisions. On the one hand, the ICC has appeared The constitutional courts should be guardians of ple with disability, were the most severely hit. These quite reluctant in granting the CRPD a groundbreak- the “constitutional idealism” in contrast to the “prag- crisis-driven legislation and policies generated high ing value. It has affirmed that the CRPD is program- matism” of other state authorities and in particular to Younsik Kim: The Role of the Constitutional levels of contentiousness. A large number of austerity matic in nature and indicates goals to be achieved by set limits to the abuses of the bodies representing Court on the Front Line between Law and Poli- measures have been challenged in the courts invok- State parties, while leaving to them the task to identify political power. Defending the constitution from the tics: Lessons from Two Impeachment Cases in ing the respect of fundamental rights, equality and concrete ways to implement these objectives. On the powerful state branches is not easy task, especially Korea solidarity, especially in jurisdictions where solidarity other hand, the ICC has used the CRPD to substan- in the “highly politicized” cases. The Constitutional This paper will articulate how the constitutional is explicitly mentioned in the constitution. The paper tially advance the protection of rights of people with Court of the Republic of Macedonia since 1991 has court in Korean impeachment cases handled a crisis inquires into the role of the courts in mitigating or up- disabilities, in particular the right to education. The faced many challenges to limit legislative and execu- that occurred on the frontline between the law and holding crisis-driven legislation invoking the principle CRPD has been cited a fortiori to support the view that tive power. Some compositions of the Constitutional politics. In contrast to many countries the Korean of solidarity with the purpose of unveiling on the one a formal recognition of a right is not sufficient, if the Court showed courage to stand behind the Constitu- Constitution requires the constitutional court to con- hand the values underpinning the courts’ decisions right is not guaranteed in practice. The ICC has also tion and to defend it. But the “unpleasant experiences” duct a constitutional review of the constitutionality of and, on the other, their profound meaning and con- clearly affirmed that the lack of financial resources of the political power with “judicialization of politics” the impeachment bill passed by the legislature. The crete implications through the analysis of the courts’ cannot justify undermining the very essence of rights leaded to the efforts for “politicization of the Court”. Constitutional Court of Korea played a pivotal role in legal reasoning. The paper focuses on the Italian case, of disable people. All in all, the paper argues that the This article will analyze the relations between the politi- managing the political crisis caused by two presiden- as a paradigmatic example of a country dramatically approach of the ICC has been progressive in terms of cal power and the Constitutional courts with special tial impeachment cases. In both cases, this addition- affected by the crisis, where solidarity, equality, fun- promoting the rights of persons with disabilities, but emphasis on the situation in Macedonia. The article al constitutional judicial review was and will avail in damental rights and human dignity are explicitly and cautious with regards to the value of the CRPD in the will argue that the political crisis in the Republic of making a political system sustainable in a democratic strongly entrenched in the Constitution, and whose Italian legal system. Macedonia in the past two years emphasized politi- representative system. The constitutional review on courts, especially the Constitutional Court, have been cized behavior of the Constitutional Court. The paper the impeachment can tame the uncontrollable revo- active in protecting and promoting social rights against Janine Silga: Emerging Similarities in the Re- will analyze the cases in which the Constitutional Court lutionary energy of the people into a constitutional austerity legislation. The analysis will be focused on cent Cases of the European Court of Justice refused to restrict political power through analysis of frame by providing a last and independent resort. In litigation in the field of disability as the limitus test for and the European Court of Human Rights on the the argumentation in the Court’s decisions, as well as addition, this process can allow the people to have the the CC’s attitude as regards the balancing between Right to Family Reunification: Convergence or the political circumstances in the time in which these benefit of a reasoned deliberation exactly in according fundamental rights and fiscal containment. Coincidence? decisions were issued. Also, the paper will analyze with the constitutional value by filtering demagogical In the EU, the right to family reunification stems the factors that determine the success or failure of politics. The constitutional proceedings in the court Sanjay Jain: Appointing Persons with disabil- from the right to family life as set out in article 7 of the the Macedonian Constitutional court in performing inspired reasoned constitutional debates in the public ity as Judges: critique of Abelist Judicial ap- Charter of Fundamental Rights, which itself restates its duties. sphere outside of the courtroom. This constitutional proaches in India article 8 of the ECHR. Besides this overarching human deliberation made the consequence of the impeach- Although India has signed and ratified UNCRPD as rights framework, the actual access to family reunifica- Alina Cherviatsova: (Un)Constitutional Justice: ment acceptable to both polarised groups. Thus, the soon as it is adopted by United Nations, courts have tion for Third-Country Nationals falls under different Case-Study from Ukraine constitutional court in the impeachment cases plays not made any considerable progress in recognizing legal regimes depending on their level of “proximity” Constitutional review can strength and protect a cardinal role in restoring the undermined legitimacy and enforcing right to access to justice of Persons with EU law. While the common regime is provided democracy, but, at the same time, it presents some of the representative democracy. with disability (PWDs) . This right is multidimensional, by Directive 2003/86/EC, important exceptions ex- democratic risks. These risks are not connected with however, in this paper, Author would critique judicial ist. The most notable regard family members of EU a danger of ‘wrong decisions’ (any political institute approaches in respect of appointment of PWDs as citizens and the preferential treatment stemming from may be wrong); but rather, with the lack of indepen- judges from the lens of Abelism. He would demon- international agreements. Beyond the EU legal order dence and democratic control. This is the case when strate that Court is not open to diversified judiciary stricto sensu, the European Court of Human Rights constitutional courts are so closely linked to the execu- and instead of emphasizing on enabling environment ultimately protects family life in accordance with article tive branch that they are unwilling or unable invalidate to the PWDs to work efficiently as ‘judges’, it has con- 8 of the ECHR. The coexistence of these different legal unconstitutional acts. Ukraine, which does not have a stantly focused on the limitations of impairment in regimes reveals a fragmentation of the right to family stable democratic tradition, seems to be an example judging. Author would conclude that such an approach reunification in the EU. However, the recent caselaw

Concurring panels 224 Concurring panels 225 of both the Court of Justice of the European Union 133 Intellectual Foundations Guy Fiti Sinclair: C. Wilfred Jenks and the Devel- 134 Theor ies of Discrimination and the European Court of Human Rights shows an of International opment of ‘Functional’ International Organiza- increasing convergence in their reasoning, as both Organizations Law tions This panel looks at four forms of discrimination recog- Courts appear to put more emphasis on fundamental As an international lawyer working in the Interna- nized by courts – disrespect for persons, indirect dis- rights and interpret more strictly the possibility to limit The panel takes as its starting point the increasingly tional Labour Organization (ILO) for over four decades, crimination, pregnancy discrimination, and affirmative the right to family reunification, especially when con- apparent limitations of international organizations Wilfred Jenks had an intimate knowledge of the devel- action – to engage the philosophical accounts of the sidering the best interest of the child. The objective (IOs) law, particularly in dealing with questions con- opment of the law of international organizations. This conceptual features of discrimination and what makes of this paper is to highlight this paradoxical situation cerning the legal responsibility of IOs. The panel paper will argue that Jenks was a pivotal figure in the discrimination wrong. Papers will also reflect on how between a fragmented legal regime for family reuni- seeks to explore this theme through a re-examination systematization of that law, and that his experiences in theories of discrimination have been shaped trans- fication and the emerging similarities of the Courts’ of the intellectual origins of IOs law, through a se- the ILO gave him a particular perspective on the mean- formed by courts’ attempts to design enforcement reasoning by looking at selected recent cases. ries of papers focussed on particular scholars who ing of ‘functionalism’ which may be worth recovering frameworks compatible with the evolving demands worked to construct the field. Among other things, for international organizations law today. of equality in a democratic polity. the panel aims to examine the central place of func- tionalist approaches in IOs law, and whether it may Emilia Korkea-Aho: Discussant Participants Kasper Lippert-Rasmussen be possible to recover heterodox threads in the early Tarunabh Khaitan scholarship that could be used to rethink IOs law Julie Suk today. More broadly, the panel will explore the effort Reva Siegel to apply broad public law concepts of accountabil- Moderator Ruth Rubio Marin ity and responsibility to this nascent field in public Room 8B-4-43 international law.

Participants Jan Klabbers Kasper Lippert-Rasmussen: Discrimination and Jochen von Bernstorff Respect Guy Fiti Sinclair Some claim that discrimination is wrongful, when Emilia Korkea-Aho it is because of the disrespect it involves. This claim Moderator Nehal Bhuta is plausible in part because, say, racist and sexist dis- Room 8B-4-33 crimination appear wrong even if by sheer coincidence they harm no one. I discuss two different disrespect- based accounts of the wrongfulness of discrimination: Jan Klabbers: The World According to Schermers one offered by Larry Alexander in a seminal 1992 ar- H.G. Schermers is, without a doubt, the central ticle which focuses on beliefs about moral worth, and figure in the post-war development of functionalist one by Benjamin Eidelson, which focuses on giving thought about international organizations. And yet, appropriate weight to the equal moral worth and au- much of his functionalism has remained implicit, tonomy of discriminatees in the discriminating agent’s unspoken, to be picked up between the lines. The deliberations. At the end of the day, both are vulner- purpose of this paper is threefold. It is first, to distill able to the same sort of counterexamples. Moreover Schermers’ functionalism; second, to flesh out how it Eidelson’s account oscillates between a fact- and an developed the earlier functionalist thought of pioneers evidence-relative account of disrespect in a way that such as Paul Reinsch and Frank Sayre; and third, to is problematic. In accordance with Alexander’s more investigate whether Schermers’ functionalism is ca- recent views I conclude that we are yet to see a satis- pable of being further developed to accommodate factory disrespect-based account of the wrongness concerns that have more recently surfaced such as of discrimination. concerns about accountability. Tarunabh Khaitan: Wrongs Group Disadvantage Jochen von Bernstorff: A Viennese Concept of and the Legitimacy of Indirect Discrimination Law International Organizations: Hans Kelsen and Is indirect discrimination liability more like an af- the German Debate on the Juridical Nature of firmative action programme or like the tort of negli- International Institutions gence? Is it a redistributive measure or a corrective Hans Kelsen and Josef L. Kunz developed a so- one? Is it best characterized as ‘public law’ or law phisticated theory of international organizations in the ‘private law’? Does it seek to protect groups or indi- Interwar period. They attempted to construct interna- viduals? In this paper, we will argue that liability for tional institutions as particular legal orders which could indirect discrimination occupies a middle ground be used for any given purpose irrespective of what between these supposedly settled legal categories they conceived of as ideological notions of sovereignty combining features of both items in each dichotomy. and domaine réservé. This integration-friendly theory It is this seemingly unstable and somewhat unfamiliar collided with critical approaches to the idea of a world middle position that partially explains the persisting organization and international institutions in general, doubts expressed regarding the legitimacy of indi- such as the one developed by Carl Schmitt. rect discrimination liability. In section I, we will identify the two distinct duties – one general and the other

Concurring panels 226 Concurring panels 227 particular – that underpin indirect discrimination. In A concluding section of the paper will discuss obvi- 135 human Dignity in East Asian human rights principle when interpreting constitutional section II, we will provide a conceptual restatement ous limitations of the America’s anti- discrimination Courts rights in the Hong Kong context. While dignity is not a of British indirect discrimination law and identify the approach to the accommodation of pregnancy in the constitutional “right” on its own, a review of relevant general and particular dimensions of this liability. This workplace, as well as its distinctive contributions. What In the current literature on human dignity, the pres- judicial decisions suggests the concept has been rec- section will outline how the particular duty in indirect if anything can discrimination law add to social welfare ence of East Asia is relatively weak. This panel is our ognized as a constitutional value that grounds other discrimination diverges from traditional causation- frameworks that mandate leave to accommodate new attempt to fill in the gap. We cover Hong Kong, Japan, explicitly articulated rights. This paper will examine demanding private law liability for the tort of negli- mothers and mothers-to-be in the workplace. and Taiwan. These papers offer general introductions how the courts have understood the meaning of dig- gence and how these divergences are justified given to the constitutional status of the idea of human dignity nity in cases involving the right to equality and non- social realities and the general/distributive dimension and how it functions in constitutional jurisprudence of discrimination (especially on the grounds of sexual of indirect discrimination liability. Section III will show these jurisdictions. Specifically, we ask the following orientation gender identity and disability), the right to that despite the indirect discrimination liability being questions: 1) What is the legal and constitutional sta- work and other socio-economic rights, the rights of technically strict it is to some degree avoidable and tus of human dignity? Is it found in the constitutional prisoners, and the rights of people who fear torture at any rate not unfair. text? If it is a legal concept transplanted from other or other forms of serious human rights violations if jurisdictions, where is it transplanted from? 2) Is it used returned to their countries of origin. Examining the Julie Suk: Affirmative Action and Discrimination as a constitutional right, or only as a constitutional development of the notion of dignity in Hong Kong There are at least two quite different understand- value that ground other rights? 3) If it is a right, is it constitutional jurisprudence provides a helpful com- ings of the relationship of affirmative action to the idea absolutely protected, as in German Basic Law, or is parative study. It sheds light on the potential impact of discrimination. On one view, affirmative action has it relative and subject to balancing? 4) What are its of international human rights law – and the principle been called “positive discrimination”, “affirmative dis- relations with other constitutional rights? 5) What are of dignity in particular – on the interpretation of con- crimination”, and “reverse discrimination”, revealing the important judicial decisions that features human stitutional rights. the baseline understanding that affirmative action is dignity? What issues do they involve? The conference a form of discrimination, and shares with discrimina- theme is “Courts, Power & Public Law”. Understanding Keigo Obayashi: Human Dignity in Japanese tion some significant feature that has moral salience. the workings of human dignity is an indispensable part Constitutional Cases: The Hybrid Approach as On another view, affirmative action is in the DNA of of understanding judicial power. By investigating the “Individual Dignity” the norm against discrimination. On the latter con- constitutional roles and functions of human dignity This paper concerns human dignity in Japan. ception, affirmative action shares with the concept of in this region, this panel helps to understanding how Particularly, it examines how does judiciary consider nondiscrimination a significant feature that has moral judicial power function in East Asia. human dignity in constitutional cases. Although the salience. This chapter lays out these two conceptions Constitution of Japan doesn’t mention “human dig- and explores how the law of many legal orders treats Participants Kelley Loper nity”, the courts sometimes refer to “individual dignity” affirmative action as discrimination which may or may Keigo Obayashi which resembles to “human dignity”. I think it as hybrid not be justified. This chapter challenges this concep- Jimmy Chai-Shin Hsu approach with considering both individual autonomy tual framework, and argues that it fundamentally mis- Moderator Albert H.Y. Chen and intrinsic humanity. I will explore the meaning of apprehends the essential features of discrimination. Room 8B-4-49 the approach through outlining the constitutional case. There are two provisions which relate to human dig- Reva Siegel: “On the Basis of Sex”: Antidiscrim- nity in Japanese Constitution. The one is article 13 ination Approaches to Pregancy Accommoda- Kelley Loper: The Concept of Dignity as a Con- that protects individual life, liberty and the pursuit of tion in the Workplace stitutional Value in Hong Kong happiness. Article 13 provides “All of the people shall When, and why, is discrimination on the basis of This paper considers the development of “dignity” be respected as individuals”. The other is article 24 pregnancy discrimination on the basis of sex? This as a constitutional value in Hong Kong, a special ad- that protects right to marriage. Article 24 provides question has been answered differently over time in ministrative region of the People’s Republic of China (marriage) “laws shall be enacted from the standpoint the United States and in Europe. In 2015, the United that has maintained a separate legal system since its of individual dignity and the essential equality of the States Supreme Court announced a new reading of reversion to Chinese sovereignty in 1997. Although sexes”. These provisions command government to federal employment discrimination law in Young v. the term “dignity” does not appear anywhere in Hong respect both individual and dignity. The courts have United Parcel Service. In this paper I discuss dispa- Kong’s constitutional document, the Basic Law, the referred to “individual dignity” with relation to these rate treatment and disparate impact claims of preg- courts have referred to and highlighted the concept’s provisions in constitutional cases. There are some nancy discrimination under Young, and the many state significance when interpreting a number of constitu- areas of individual dignity which the court refers to statutes in the United States that mandate that an tional rights. Article 39 of the Basic Law guarantees it. Recently, the Supreme Court refers to individual employer reasonably accommodate pregnancy in the the continued application and implementation of core dignity in equal protection and right to marriage case. workplace. The paper builds from the simple premise international human rights instruments including the The one of them is illegitimate child case (Hichaku that one needs to focus on questions of social roles as International Covenant on Civil and Political Rights (IC- case). In 2013, the Supreme Court struck down ar- well as physiological traits in order to understand what CPR) and the International Covenant on Economic So- ticle 900-4 of civil law which provided discriminate pregnancy discrimination is and why we should care cial and Cultural Rights (ICESCR). The Hong Kong Bill inheritance against child out of wedlock. The law pro- about it. When we locate the pregnancy discrimination of Rights Ordinance – domestic legislation duplicating vided inheritance of child out of wedlock shall be one inquiry in an account of evolving social roles, we have most of the text of the ICCPR – has achieved consti- half of the share in inheritance of a child in wedlock. a basis for probing the forms of rationality that guide tutional status. Although Hong Kong is a dualist, com- The Court decided that whether the law is reasonable business judgments about pregnant workers. The pa- mon law system, these provisions have established or not must be judged in accordance with Constitu- per draws on examples outside the pregnancy context a direct link between domestic law and international tion providing individual dignity and equal protection. to illustrate how anti discrimination law can promote human rights law. This has allowed the courts to de- Therefore, the Court held that the provision was un- the integration of pregnant workers in the workplace. liberate the applicability of dignity as an international constitutional because it didn’t respect illegitimate

Concurring panels 228 Concurring panels 229 child as individual with considering recent various duty as the public interest. I survey individual dignity situations. In this case the Court considers that the in constitutional cases in Japan and the meaning of friday Panel child can’t choose the position of legitimate or ille- hybrid approach. First, I confirm the constitutional gitimate. It is important that the decision weighs both text about individual dignity and examine the mean- child’s autonomy and human intrinsic of child. The ing. Second, I survey the constitutional cases which 7 july 2017 session other case is about married couple with the same fam- referred to human dignity. Then I consider the meaning ily name (Fufubessei case). The article 750 of civil law of hybrid approach. 09:00 – 10:30 5 provides “A husband and wife shall adopt the surname of the husband or wife in accordance with that which Jimmy Chai-Shin Hsu: Human Dignity in Tai- is decided at the time of marriage”. Some women wan’s Constitutional Jurisprudence think it as unconstitutional because it compels many The important role played by the Constitutional married couples to choose husband’s family name. In Court in Taiwan’s democratization is widely acknowl- fact, married couples of about 90% choose husband’s edged. Less documented is the rise to prominence family name. The plaintiffs sued the government as it of the idea of human dignity in Taiwan’s constitutional against constitutional right not to compel the family jurisprudence. The concept of human dignity is not name, right to marriage and equal protection. In 2015 contained in the constitutional text. Still under the in- the Supreme Court held that it was constitutional be- fluence of German constitutional law and international cause it didn’t violate personal right under article 13 human rights discourse this concept made its first and equal protection under article 14. However, when entry into Taiwan Constitutional Court decision in the the Court judged the constitutionality about marriage mid-90s. In the following decade its presence quickly system, it considered reasonableness in accordance proliferated in the Court’s decisions. It has been rec- with individual dignity and the essential equality of the ognized as a central constitutional value. There are sexes under article 24. The Court held that the system mainly two functions of the Court’s use of this concept. was reasonable because it didn’t compel women to The first is to buttress the enumerated rights by adding use husband’s family name, while it might inflict slight weight to the infringed right in proportionality analy- disadvantage. This case was considered individual sis. The Court has used it to strengthen protection of dignity because it examined individual choice about freedom of expression right to subsistence right to family name and discrimination based on the position property and right of equality. The second is to use it of woman. There are other inferior court cases about as a foundation for un-enumerated rights such as right individual dignity. For example, the first privacy case to privacy right to reputation and right of personality. referred to individual dignity (Utagenoato case). In 1964 These rights are deemed “closely related” to human Tokyo district court approved right to privacy deduced dignity and hence enjoy the status of fundamental from individual dignity which needed to respect each rights. Still another less-developed function is to treat personal right and protect from improper invasion. human dignity as a constitutional inviolable right sub- The compensation case for the vaccine also referred ject to no balancing. In an Interpretation involving free- to individual dignity (Vaccine case). In 1984, Tokyo dis- dom of thoughts the Court declared unconstitutional trict court held that the governmental decision not to a statutory remnant from the authoritarian era which compensate for the victims who were inflicted damage prescribed forced labor and “thought reeducation” of caused by vaccine was against constitutional principle “communist spy”. This paper analyzes how the Court which derived from individual dignity. There are some understands the concept of human dignity and how cases with relation to individual dignity without refer- the Court uses it to establish an increasingly intricate ring to “individual dignity” directly. For example, the right analysis structure. euthanasia case in 1995 – physician assisted suicide case – concerns like human dignity (Tokai University Hospital case). When the Yokohama district court ap- proved the euthanasia under certain conditions, the court indicated that it derived from self determination to stop medical treatment and to receive natural death with keeping human dignity. There are two approach about human dignity in the world. They are individual autonomy and intrinsic humanity. The former relates to self determination and the latter relates to moral right (duty). Although the Supreme Court of the United States tend to refer to the former, western countries courts toward to use the latter. The Japanese courts takes the third approach; hybrid approach. It weighs individual determination and moral right. Although the courts usually think individual dignity as the context of individual autonomy, it has potential to consider moral

Concurring panels 230 Concurring panels 231 136 courts & Weak v Strong cally enacted legislation. By the same token, influential powers ex ante- ie powers that allow them to over- 137 referenda, Democracy and Judicial Review comparative law taxonomies classify constitutional come legislative inertia by disrupting an existing legal Constitutional Litigation: systems as ‘strong-form’ or ‘weak-form’, largely on equilibrium. This paper explores this issue through a avoiding the next Brexit Constitutional scholars around the world now analyse the basis of whether courts have ‘normative finality’ focus on judicial remedies. It considers both formally through Courts? systems of judicial review as more or less ‘strong’ or on questions of rights and, in particula, whether they weak declaratory remedies, such as those in the HK, ‘weak’ in nature. The distinction, however, is clearly one have the coercive power to invalidate or strike-down and de facto weakened remedies, such as delayed or Last year has seen more than its share of constitutional of degree, and the actual strength of judicial review legislation. This paper argues that in order to capture suspended declarations of invalidity, and their track- referenda, or referenda with broad constitutional impli- in various contexts depends on a range of contex- accurately the nature and dynamics of constitutional record in countering various political blockages. It also cations, preceded by public debates and arguments tual factors including the approach of constitutional review, we need to situate the strike-down power in the suggests ways in which courts could adopt a more of disputable quality. Each legal system has its own courts. This panel will examine these questions about broader landscape of judicial practice under Bills of intermediate – or weak-strong – approach to consti- discipline aimed at ensuring that these crucial pro- the classification of different models of judicial review Rights. So situated it can be seen that far from being tutional remedies, which splits the difference between cedures are fully compatible with the democratic prin- as more or less strong or weak in nature, as well as the the favoured tool that does all the work, judges often concerns about judicial legitimacy and effectiveness. ciple: parliaments have a role in this, and courts may role of different judicial remedies – including the ‘strike hold back from striking down, treating it as a measure The article makes these arguments by reference to as well including supreme and constitutional courts; down’ power, and delayed or suspended declarations of last resort. Even when judges decide to wield the case studies of LGBT rights in Colombia, Hong Kong, moreover, the relevant issues may find their way to of invalidity – in creating stronger versus weaker forms guillotine of judicial nullification, they find myriad ways India, South Africa, the UK, New Zealand, and Australia. the judiciary, even when there is no specific legal or of review. of narrowing its effects and softening its blow. Indeed, constitutional provision to that effect. [...] In Italy, the although the strike-down is often portrayed as an- constitutional referendum of 4.12.2016 has been ac- Participants Stephen Gardbaum nihilating the will of the legislature, in fact the legisla- companied by a fierce litigation on the wording of the Aileen Kavanagh ture often has considerable leeway on how to remedy electoral question and the heterogeneity of its object. Rosalind Dixon rights-violations in future legislation. This contextual Which quality requirements does democracy demand Moderator Mark Tushnet study of the strike-down has two significant implica- for the decision-making process through popular con- Room 4B-2-22 tions. The first is that it complicates and challenges sultations? How should their outcomes and effects the tendency within the theoretical and comparative be legally weighed? Should some issues be exempt law scholarship to rivet on the strike-down as a key from such consultations? Are courts the right forum Stephen Gardbaum: What makes for stronger marker of ‘strong-form review’. Second, it suggests for discussing and answering these issues? and weaker constitutional courts? that many accounts of constitutional review overstate The distinction between “weak-form” and “strong- the significance of the strike-down, whilst overlook- Participants Michele Massa form” judicial review turns on whether or not legisla- ing other crucial facets of the judicial power to review Justin Orlando Frosini tures are empowered to respond to particular con- legislation for compliance with rights. Kriszta Kovács stitutional court decisions by ordinary majority. This Maya Hertig Randall single-factor constitutional design issue does not Rosalind Dixon: Responsive Judicial Remedies Sergio Gerotto purport to take into account the many other ways in A major focus of comparative constitutional schol- Tomás de la Quadra-Salcedo which courts might more generally be thought of as ars in recent years has been the development of a Janini strong or weak in an all-things-considered or Gestalt distinctly ‘weakened’ model of judicial review, accord- Moderator Sabino Cassese and sense. This different and broader topic is the basis ing to which legislatures enjoy formal authority to over- Carlo Fusaro for a conception of judicial supremacy commonly ride court decisions simply by way of ordinary majority Room 4B-2-34 employed by political scientists, albeit often to reject vote. The aim of this model is also to address long- such a claim: courts are the most powerful branch of standing concerns about the relationship between government on constitutional issues and are able to stronger forms of judicial review and democracy: in Michele Massa: Juridical Controversies on Con- impose their will on other recalcitrant political actors a world of reasonable disagreement about the scope stitutional Referenda: The Italian case of 2016 and institutions. In attempting to address this broader and meaning of constitutional provisions, particularly See general description question, this paper argues that the relative political rights-based provisions, there are obvious democratic power or overall “strength” or “weakness” of a given difficulties with giving non-elected the final say over Justin Orlando Frosini: Parliamentary Sover- constitutional court is a function or mix of (1) legal pow- the scope and meaning of such provisions; whereas eignty and Referendums: An Indigestible Cock- ers, (2) institutional practices and culture, and (3) politi- even the most committed political constitutionalists tail? The Case of United Kingdom and Brexit cal context and contingency. In addition to raising and acknowledge that there is generally little difficulty with See general description discussing these various factors, the paper illustrates giving courts a penultimate or non-final role in decid- their impact through a comparison of the Indian and ing such questions. In responding to concerns about Kriszta Kovács: International Standards for Na- Japanese supreme courts, among others. the democratic legitimacy of judicial review however, tional Referendums: The Hungarian case proponents of weakened judicial review have often Both democratic elections and referendums are Aileen Kavanagh: Situating the Strike-Down downplayed the dangers this model poses to the ef- expressions of the sovereignty of the people. Election Power fectiveness of judicial review. A key function of weak principles are enshrined in international human rights The idea that constitutional judicial review is epit- judicial review is the ability of courts to overcome documents and international election observations omised by the judicial power to strike down legisla- blindspots and burdens of inertia in the legislative are regularly conducted to ensure that the basic prin- tion is a common assumption underpinning both the process: such a role does not depend on court deci- ciples are fulfilled. Although the effects of a referen- theoretical and comparative law scholarship on rights sions having any truly final status, and it yet responds dum might be as critical as the effects of a general review. Thus, leading theorists pose the question about to widespread blockages in modern legislative pro- election, there are no internationally recognised le- the legitimacy of judicial review in terms of whether it is cesses. For courts to play this role effectively, however, gal standards and mechanisms concerning national justified for unelected courts to strike down democrati- they will often need to have quite broad and strong referendums. Recently, the use of referendums has

Concurring panels 232 Concurring panels 233 become increasingly common in Europe. Apparently 138 The Role of the CJEU in terpretation of EU law. Since distribution is, in the end, least one essential question: by which institutions and the referendum is there for ensuring the participatory Articulating Social Justice a matter of value-choices, it is defended that the case processes of decision-making do we want to consti- rights of the citizens. But in practice referendum not al- law of the Court can be associated to different theories tute justice among Member States and its citizens? ways serves democratic purposes, they are very often This panel tackles the different ways in which the Court of distributive justice. This paper addresses this question drawing on the manipulative and populist. The 2016 Hungarian Ref- of Justice of the European Union (CJEU) contributes work of Waldron, Christiano, and Bellamy. The paper erendum on rejection of asylum-seekers might be an towards the articulation of social justice in the EU. Betül Kas: The role of judge-made collective proceeds in three stages. In the first part, I explain example. In September 2015 an EU Council Decision These range from the definition of what justice is, to the remedies for the enforcement of European so- that what Waldron coined the ‘circumstances of poli- 2015/1601 was adopted on the temporary relocation way these ideals of justice are applied (be it through cial regulation tics’ also affects EU governance. We need to agree scheme for the distribution of asylum-seekers. This private law public policies or the creation of new col- The paper will demonstrate the role of collective on a common set of rules within the EU, but there is EU Council Decision was challenged by the Hungarian lective remedies at the national level). In addition, the remedies developed by the interaction between the reasonable disagreement about which principles of State before the CJEU. Soon afterwards, the Euro- panel looks into the institutional question of whether European and the national level, particularly the na- justice the EU must implement and the conception of pean Commission opened an infringement procedure it should be the CJEU’s responsibility to constitute tional courts and the CJEU in the framework of the rights its policies must embody. Recent discussions of against Hungary concerning its asylum legislation. In justice within the EU. The panel is particularly relevant preliminary reference procedure, in order to enforce justice within the EU do not sufficiently acknowledge response to that, the Hungarian Government called in times of economic struggles, rising equalities, and European socially-oriented regulation for the building our conflicts and disagreements about justice. Prob- for a referendum that allowed the electorate to vote increasing concerns about the EU deciding on the of a more balanced European legal order, which is lematically, the fact of disagreement is either circum- on the following question: “Do you want the European redistribution of wealth and welfare. able to gradually counter its perceived internal market vented or dismissed based on the assumption that Union without the consent of Parliament to order the bias. Collective remedies are understood not in purely we can converge around a shared understanding of compulsory settlement of non-Hungarian citizens in Participants Leticia Díez Sánchez procedural or substantive terms, but as constituting what justice entails. Once we acknowledge that our Hungary?” Notwithstanding the constitutional con- Betül Kas a hybrid of procedural and substantive elements. The visions are incommensurable, the need for collective cerns, the referendum was approved by the National Martijn van den Brink collective remedies examined in the paper stem from decision-making procedures that allow us to resolve Election Committee, the Supreme Court, and the Con- Irina Domurath the fields of environmental law particularly air quality our debates and decide on a common course of action stitutional Court. The 2016 referendum has already Moderator Hans Micklitz regulation, anti-discrimination law, particularly race becomes evident. Part 2 focuses on the implication, had wide-ranging implications. The presentation ad- Room 4B-2-58 equality regulation, and consumer law, particularly which is that we need to complement our accounts of dresses the following questions: Does international unfair terms regulation. In that regard, the shift from justice with a theory of legitimate decision-making. In soft law, e.g. the Venice Commission’s Code of Good political discourse and legal regulation at national lev- other words, we must decide on which institution we Practice on Referendums, provide a sufficient legal Leticia Díez Sánchez: The Court of Justice of el to legal re-regulation at EU level will be illustrated. want to establish justice within the EU. For this, we basis for evaluating national referendums? How inter- the European Union as a Distributive Actor The EU is following its own objectives and logic in the need an account of legitimate decision-making that national guidelines might become standards of hold- This paper analyses the way in which the Court of three legal field, the internal market logic, which is does not depend on the substantive results we want ing national referendums? Can domestic courts apply Justice of the European Union (CJEU) resolves con- distinct but complementary to the national ambitions. to achieve. Part 3 returns to recent contributions to the newly emerged international standards or a novel flicts that entail redistribution of wealth and income Although the CJEU is perceived as counterbalanc- the debate on justice within the EU to highlight that international institutional mechanism is required? between different groups of society. It argues that (a) ing the EU internal market bias by relying increasingly they ignore the elephant in the room. Scholars tend the case law of the Court can be seen as a manifesta- on constitutional values and EU citizenship to further to conflate their account of justice with an account of Maya Hertig Randall: Taming the Demons tion of the social conflicts at the core of EU law, and protection, the status-based notion of individual rights legitimate institutions and, implicitly or explicitly, favour Through Courts? The example of Swiss Depor- that (b) the manner in which the Court resolves such does not take into account the collective dimension of the European Court of Justice (ECJ) as the institu- tation Initiative conflicts can be seen as an expression of different social conflicts. It will be argued that instead, national tion responsible for establishing justice among the theories of distributive justice. The social conflicts collective remedies, which aim to protect vulnerable Member States and its citizens even if that means Sergio Gerotto: Direct Democracy and Liberal- generated by EU law – First, this paper unveils the societal interests, have the potential to gradually de- ignoring or overriding the authority of the EU legisla- ism: Can illiberal elements be introduced via redistributive nature of EU law from the very origins velop the European legal order from an internal mar- ture. I will question the assumption in favour of judicial referendum? of the European project. Policies with a specifically ket-driven legal order into a legal order with a social decision-making and argue that it risks undermining See general description redistributive aim (CAP Cohesion Policy) as well as outlook. However, the substance of such a European the legitimacy of EU law. The literature of justice in the internal market provisions generate clear winners and legal order will not replace the national legal orders EU cannot remain silent on this institutional question. Tomás de la Quadra-Salcedo Janini: Juridical losers. The resulting cleavages are much richer than with their competence to establish a social welfare Controversies on Referenda: The Spanish con- often assumed confronting not only Member States paradigm but supplement them. It will be argued how Irina Domurath: The Social Function of Contract stitutional system but also collectives like consumers taxpayers farmers the legitimacy-gap of that judge-made European legal Law Before the CJEU See general description or regions. The Court as a forum to challenge distribu- order built via the preliminary reference procedure The article analyses the role of contract law and tive schemes – Litigation is an instrument for policy could be closed by the CJEU acknowledging the politi- adjudication embedded in a larger regulatory envi- change. The case law of the Court is not only a place cal struggles underlying the collective disputes before ronment. Specifically it elicits the social function of where abstract legal concepts are elucidated, but also it and by engaging in an open balancing of the various contract law to provide welfare to individuals in the one where social groups fight for that they consider interests at stake. political economy of the credit-welfare trade-off. The their due. These struggles, the ‘demand side’ of judicial field under study is mortgage law. First, it is described decisions, help us better understand the development Martijn van den Brink: EU Law and Justice: The how contract law is taking on a social function through of EU law. ‘Integration through law’ aimed at unity, but Institutional Elephant in the Room the retreat of the welfare state and the expansion of it was born from social conflict. Case law as distribu- EU lawyers are increasingly turning their focus to the marketization of public policies, such as access tive justice – The third aim of this paper is to offer an the ideals of justice. In recent years, several books to housing. In order to enable consumers to partici- alternative analysis of the impact of the Court’s case have been published, exploring the EU from this per- pate in this ‘market for personal welfare’ in the field law. Instead of focusing on the position of the Mem- spective and arguing which political ends it should of housing access to mortgage credit is significantly ber State or the European citizen vis-á-vis European pursue. These studies are valuable and introduce eased (credit-welfare trade-off). Second, the article integration, it analyses what particular countries and an approach in EU legal scholarship that was long sheds light on the role of the CJEU in the adjudica- social groups have been benefitted by the judicial in- overdue. Yet, they all ignore or try to circumvent at tion of cases in which consumers were not able to

Concurring panels 234 Concurring panels 235 service their debt burdens any longer. It is shown how 139 The ECTHR’s Changing The paper thus provides for an analytical framework Despite current setbacks by certain Convention states’ the CJEU uses the control of unfair contractual provi- Remedial Practice – that can be used for analysing the significance of unwillingness to follow the Court’s individual measures sions to give guidance to the national courts and to Implications for Legitimacy the international input to domestic implementation (cf. Volkov and Salov), I suggest that the Court has em- formulate own rules for balanced contractual provi- and Effectiveness mechanisms. barked on the right path and managed to tread a fine sions. It highlights the role of the CJEU to act as the line between judicial activism and restraint, whereby it final arbitrator to remedy social deficiencies of the During the last two decades, the ECtHR’s tradition- Øyvind Stiansen: Directing Compliance? Reme- also manages to rebut concerns of democratic legiti- national and European legal order, which are brought ally restrictive attitude to remedies has undergone dial Approach and Compliance with European macy that have been raised by domestic actors. For about by the opening up of markets for low-income important changes, and notably a shift toward a more Court of Human Rights Judgments the Court, individual measures serve the purpose to consumers without establishing safeguards against prescriptive approach. Initially, the Strasbourg Court International and domestic courts that rule against bolster the individual’s position vis-á-vis state power the risks. At the same time, doubts are expressed as started specifying, in a limited number of cases, the state authorities face implementation problems. An by enhancing the effectiveness and the efficiency of to the competence basis for and the ability of judicial individual measures to be taken by a respondent State. important question is whether courts can design rul- the domestic execution of its judgments. Concerns of activism to solve social problems, which also endows In 2004, the ECtHR introduced the pilot judgment ings in ways that facilitate timely compliance. This pa- democratic legitimacy are weakened by the fact that private law conflicts with a constitutional dimension. procedure, which sought to direct States in rectifying per analyzes recent attempts by the European Court the Court has used stricter measures, not in opposition In the end, it is concluded that the embeddedness structural sources of human rights violations. Since of Human Rights (ECtHR) to influence implementation to domestic institutions, but instead to strengthen and of consumer debt contracts in the political economy then, the ECtHR has issued dozens of pilot judgments, by engaging more directly with expectations about reinforce their functioning, especially that of courts of the credit-welfare trade-off reflects the need for and also started indicating general measures to be implementation in its judgments. On the one hand, this (e.g. in Volkov). Overall, the development should be further protective mechanisms beyond the ones that taken by States in the ordinary (non-pilot) cases. Al- strategy has the benefit of increasing the transparency seen within the wider context of the Court’s endeav- can be included in the contractual agreements and though these shifts in the ECtHR’s remedial practice of the implementation process and in this way increase our to establish a complementary and cooperative their judicial control. have been analysed in the existing scholarship, their the reputational costs of prolonged non-compliance. relationship with the domestic level and not as a sign broader consequences, inter alia in terms of effec- On the other hand, judicialization of the implementa- of the Court’s intention to establish a hierarchy within tiveness and legitimacy of the ECtHR, still remain un- tion process reduces the flexibility of the responding the Convention system. For this purpose, interlocking der-researched. In order to shed more light on these state in identifying efficient remedies that are accept- the domestic and the international level, the Court has issues, this panel takes a closer look at the conse- able to domestic veto-players. To assess empirically employed the guiding structural principles of shared quences of the ECtHR’s changing remedial practice how the ECtHR’s remedial approach influences com- responsibility and of subsidiarity. As opposed to the for the effectiveness and legitimacy of the ECtHR and pliance with its rulings, I use matching to adjust for Inter-American Court of Human Rights, the ECtHR of the entire ECHR system. The panel provides for an differences on observable country- and judgment- has interpreted individual measures as an exceptional interdisciplinary dialogue and methodological diver- level indicators of the compliance environment. Cox remedial power that requires a high standard of judi- sity as it encompasses both theoretical and empirical regression models estimated on the matched data cial justification, applying particularly in cases of seri- papers authored by lawyers and political scientists. suggest that indications of measures aimed towards ous human rights violations, where only one specific remedying the situation of individual applicants have measure was held to redeem the unlawfulness or in Participants Jan Petrov contributed to quicker compliance with the judgments cases where systemic and structural deficiencies in Øyvind Stiansen where they have been offered. However, indications of the respective domestic institutional setting prevented Jannika Jahn broader policy changes have not been consequential an effective domestic implementation process. Anne-Katrin Speck for implementation. Nino Tsereteli Anne-Katrin Speck: The impact of the ECtHR’s Moderator Andreas Føllesdal Jannika Jahn: Playing the Two-Level Game Ef- increasingly directive approach to remedies on Room 7C-2-24 fectively: Enforcing Domestic Execution of Eu- the supervision of the execution of judgments ropean Court of Human Rights Judgments with This paper will present emerging findings from the Specific Individual Measures Human Rights Law Implementation Project, an ESRC- Jan Petrov: International Input to Domestic Im- The ECtHR has developed new remedial powers funded research involving four academic institutions plementation Mechanisms in the ECHR System that considerably change the architecture of the Eu- (Bristol, Essex, Middlesex and Pretoria) and the Open The existing scholarship on the implementation ropean Convention on Human Rights (ECHR) system Society Justice Initiative. Focusing on nine states in of the ECtHR’s case law stresses the role of the do- regarding the implementation of the Court’s judg- Europe, Africa and the Americas, the project is using mestic level of the ECHR system and of the domestic ments. While attention focused on the introduction of qualitative research methods to trace states’ respons- politics. This paper concurs that the domestic political general measures since Broniowski v. Poland, it has es to (i) selected judgments from the three regional processes are crucial for compliance with the ECtHR nearly gone unnoticed that the Court developed fur- human rights systems and (ii) selected decisions de- judgments, however argues that they cannot be anal- ther remedial powers: specific individual measures. In riving from individual complaints to UN treaty bodies ysed in isolation from their international input, i.e. from Volkov v. Ukraine (2013), the ECtHR for the first time in order to identify and elucidate the factors which the ECtHR’s ruling. I concentrate on particular features ordered the respondent state to reinstate a dismissed impact on implementation. The project starts from the of the Strasbourg Court judgments and conceptualize Supreme Court judge at the earliest possible date premise that human rights regimes are a complex web how they can affect the course length and outcome of in the operative part of its judgment, because the of interdependence between domestic and suprana- domestic implementation mechanism. More specifi- Ukrainian judicial disciplinary system suffered from tional institutional actors, none of which can secure cally I discuss the clarity, persuasiveness and the level such systemic deficiencies that the Court saw no the objectives of the regime alone, but only through of minimalism/maximalism of the ECtHR’s reasoning, other means to redeem the violation in fair trial terms. their interrelationships. Implementation is seen as and the remedial strategy employed in a given case by This case is the result of an incremental change in depending on a multitude of variables pertaining to the the Strasbourg Court. A combination of these features the Court’s interpretation of Art. 46 ECHR since 2004 ruling itself, the oversight of its implementation, and implies the level of constraints imposed on the State by which it has substantially reduced the Convention external factors. Within this framework the paper will party by the Strasbourg Court and sets the starting states’ executory discretion. This development will present early findings from research conducted in Bel- point for the domestic implementation mechanisms. be analyzed with reference to the Court’s case law. gium, the Czech Republic, Georgia and Strasbourg on

Concurring panels 236 Concurring panels 237 the implementation of pilot ‘quasi-pilot’ and other EC- 140 european and national forced retirement of over 270 judges, one tenth of the either directly by the corporations or, by the State, with tHR judgments requiring complex general measures courts in the promotion of EU total including many Presidents of Courts of Appeal the cooperation of corporations or, in more extreme concerned with inter alia the system of internment policies: Judicial review and and Supreme Court judges. The ECJ considered the cases, because corporations impose the violations to of high-risk individuals (Belgium), racial segregation its shortcomings measure as an unjustified age discrimination and a the State. The paper will, first, analyse the role of courts in schools (Czech Republic), and compensation for violation of the EU equal treatment directive 2000/78/ in shaping accountability of corporations for violations Soviet-era repression (Georgia). It will discuss how The aim of the panel is to explore the increasingly cen- EC, forcing the country to take a step back and with- human rights, by exploring the existing case law in the specificity of the remedies indicated impacted tral role that courts play in the promotion of policies draw the measure. The second part focuses on the United States and South America. Eventual obstacles, on the response to these judgments and notably on set by the European Union and, at the same time, to ECtHR Grand Chamber case Baka v. Hungary of June even of a procedural nature, on finding corporations the process of supervision of their implementation. In discuss the shortcomings and weaknesses that ju- 2016. In this case the Court decided on constitutional accountable for violations of human rights will be iden- so doing, focus will be set on the implications of the dicial intervention has nonetheless shown in some amendments and legal measures that determined the tified. The analysis will, then, focus on Europe and, in adoption, by the ECtHR, of a more directive approach instances. European courts have proved to be crucial early termination of the mandate of the President of particular, on the case law of the European Court of to remedies for the interplay between the ECtHR, the in ensuring not only the implementation of EU policies the Hungarian Supreme Court Andrés Baka. Through Human Rights. The final part of the paper will explore Committee of Ministers, the Department for the Ex- but also in expanding the scope of such policies and such reforms the country violated both the right of how judicial doctrines, developed in other branches of ecution of Judgments, and national jurisdictions – and promote them even beyond the original objectives. access to a court (Art. 6.1 ECHR) and the freedom of law, such as for example antitrust law and administra- whether such an approach creates potential for mutual This pivotal role has entailed the recognition of indi- expression (Art. 10 ECHR) of the applicant, who vocally tive law, could be used to find corporations liable for reinforcement or the risk of duplication of efforts and vidual and collective rights, as well as of corresponding criticized the government when he held the highest violations of human rights. An example in this direction conflicting directions. duties on national public administrations and private position in the judiciary. In investigating individual could be the as if approach which is at the basis of the businesses. In several cases, however, this policy-pro- human rights violations, the ECtHR strengthens its in house providing doctrine or of the Italian judicial Nino Tsereteli: Evolution of Remedial Powers moting role of European courts is jeopardized when judicial role and the process of ‘constitutionalization’ doctrine, mainly developed by the Italian Court of Audi- and Legitimacy Management by the ECtHR it comes to the implementation of EU legislation by of the European Convention on Human Rights ,tying tors, of service relationship between corporations and I apply the insights from organizational theory and national courts and administrations or when the imple- the supranational guarantee of individual rights to the public administration. In both these examples the aim social psychology to explain the evolution of remedial mentation finds procedural obstacles at the national defence of the rule of law at the state level. In the con- of the doctrine is establishing criteria in light of which powers of the ECtHR and more specifically, its involve- level. In order to explore the policy-promoting role of clusions, comparing the content and impact of the the behaviour of the corporation could be considered ment in matters of implementation through indication courts and the connected shortcomings, the panel rulings, the paper elaborates on the role that European as if it was part of the public administration and hence of general measures. This development might have choses a multi-sectoral approach which mirrors the Courts can play in cases of systemic violations of the of the State. A last and more extreme example could been necessary to reduce the backlog of repetitive variety of EU policies and objectives: democracy and rule of law at the state level. It suggests that a multi- be made if the level of capture of the State by corpora- applications resulting from the failure of states to solve the rule of law, human rights promotion, environmen- level Pan-European system of dialogue and reaction, tions does not justify anymore the distinction between systemic and structural problems. However, it exposed tal protection, banking supervision. It also provides a although imperfect and yet unformalized, is emerg- the State and the corporation. In this last and extreme, the ECtHR to the risk of backlash and loss of legitimacy view on the powers of EU institutions to pursue these ing on the continent. Multiple actors (domestic and case a reverse reasoning to what is the State Action in the eyes of its audiences – governments as well policies. European courts, regional organizations, civil society, Defence doctrine in antitrust law could be used for as actual and potential applicants. It is not surprising the Venice Commission) increasingly have a voice in holding corporates liable for violation of human rights, that in order to minimize resistance, the ECtHR devel- Participants Valentina Volpe the defence of constitutional shared values and in even by means of State action. oped its approach carefully. It engaged in what I label Kostantin Peci “judging” national democracies. as legitimacy management. It means that the ECtHR Elisabetta Morlino Elisabetta Morlino: Environmental Protection sought to secure legitimacy through communication Giulia Bertezzolo Kostantin Peci: Judicial Protection and Cor- under Judicial Scrutiny: The difficult intersec- with its various audiences, in the context of specific Maurizia De Bellis porate Accountability for Violation of Human tion between administrative procedures and proceedings as well as in the course of reform-related Moderator Elisabetta Morlino Rights criminal law enforcement discussions. This process is bi-directional with the EC- Room 7C-2-14 The paper will focus on the role of the judiciary The paper explores the issue of effectiveness of tHR influencing (albeit not conclusively controlling) the power on granting effective protection against the environmental protection with a special focus on the audiences’ attitudes and at the same time, displaying violations of human rights by corporations. Account- interaction between the administrative procedures set some responsiveness to their concerns. Having care- Valentina Volpe: Judging Democracy The Role ability of corporations for violations of human rights by European and national rules, and judicial review of fully assessed 129 judgments, adopted between 2004 of European Courts in Protecting the Indepen- questions the paradigm that judicial protection should environmental cases at the national level. The last forty and 2016 and other related documents, I observe that dence of the Hungarian Judiciary be given to individuals only against violations of those years have witnessed the growth of the environmental the strategies for legitimacy management vary, de- Is it possible for European Courts to play a role rights by the State. The rationale behind this para- protection through a variety of means: the rise of global pending on whether the ECtHR seeks to gain main- in case of systemic violations of the rule of law at the digm is a double-sided one: the State is the only ac- and national rules on environmental protection; the tain or repair legitimacy. This can be discerned from state level? How and by what means may the European countable entity for use of force and (hence) the State development of appropriate administrative authorities the language used in the judgments as well as overall Court of Justice (ECJ) and the European Court of Hu- has, also, the obligation to protect its citizens against with the mandate of implementing the rules; the multi- dynamic of evolution (namely, speed of development, man Rights (ECtHR) intervene in the event of domestic the use of force by other entities. However, there is plication of administrative procedures to compose and timing and case selection both as regards selection democratic backlashes? What is the impact of interna- a constantly growing awareness that corporations combine the various interests at stake; the emergence of states and of issues). The types of legitimacy (legal, tional adjudication on national illiberal developments? rank among those entities that, at least, influence, if of complex civil, administrative, and criminal litigation. jurisdictional, procedural, consequential, etc) sought Over the past years, both the ECJ and the ECtHR have not contend the exercise of power and authority by The interests that come into play with regard to the en- by the ECtHR also vary, inter alia, depending on the decided on cases related to the independence of the the State. There are different ways in which the issue vironment revolve around a core conflict: that between preferences of audiences, as anticipated by the ECtHR judiciary in Hungary. The paper investigates the trans- of corporation accountability for violation of human environmental protection and economic development or expressly voiced by them. formative potential and the limits of “judging democ- rights could be faced. From a decisional perspective, and between those who bear the respective interests, racy” in the Hungarian experience. In the first part, the the violation of human rights could be the result of being local communities and businesses, developed paper analyses the ECJ case C-286/12. The judgment an autonomous decision of the corporation, or the and developing countries, future and present genera- had at its core the reform of the mandatory retirement corporate action that has violated human rights could tions. European environmental rules as well as their age for judges and prosecutors promoted by the Or- have been imposed or influenced by the State. From a interpretation by the CJEU set ex ante the point of ban government in 2011. The measure entailed the behaviour perspective, the violation could be caused equilibrium between these interests. Yet national ad-

Concurring panels 238 Concurring panels 239 ministrative authorities weight and balance the inter- the information and data that entities under scrutiny on the legitimate use of force. Do private parties enjoy 141 Work ing Parents and Free ests case by case and make assessments that often should make available and on the basis of which the the same level of protection of fundamental rights, vis Movement: The European involve economic political and social considerations. European Court of Auditors perform its assessment. á vis EU authorities, that are guaranteed in the con- Transformation of the Family Administrative procedures, thus, are necessary to Article 287 of the TFEU only prescribes that bodies text of national proceedings? What is the role of the collect the interests that the administrative decision and institutions shall forward to the European Court judiciary, and in particular, does the current division of Through the logic of free movement of services and will combine. With regard to environmental issues, of Auditors any document or information relevant for labour between national Courts and the Court of Jus- labor, the European Union is transforming the fam- however the administrative ability to effectively com- discharging the tasks entrusted to the Court, without tice provide for adequate protection of private parties, ily. From abortion to assisted reproduction, the free pose such interests and generate stable administra- providing any additional clarification. The type and given the growing spread of this model of enforce- circulation of services is disrupting national efforts tive decisions is questioned. National courts, namely granularity of information to which the Court may or ment of EU law? And are these legal safeguards, and to regulate surrogate motherhood, post mortem in- criminal courts, often intervene ex post to dismantle may not have access determines of course the deep- in particular the limits of judicial control, compatible semination, and same-sex parenting. The CJEU has the balance of interests set in the administrative deci- ness of the scrutiny that the European Court of Audi- with standards set by the European Court of Human developed a robust jurisprudence of gender equality, sions. European rules and rulings on environmental tors can undertake and is intertwined with the scope Rights for the protection of fundamental rights such anchored in the EU’s competence over the economic protection aim primarily at preventing environmental of its auditing powers in relation to a certain body. as the inviolability of home? The paper conducts a enlargement of the market. This body of EU law has damage (eg.: precautionary principle). Risk factors are With regards to the ECB or the SSM, the Statue of cross sector analysis. It moves from practices in the changed the way national legal orders can approach identified, and based on these rules prescribe admin- the European System of Central Banks provides that area of competition, where inspection powers have gender roles in the workplace which inevitably puts istrative procedures and decisions to be taken to avoid the European Court of Auditors shall only assess the been used for a long time, and lead to a rich case law transformative pressure on gender roles within the environmental damage. Public administrations are the operational efficiency of the management of the ECB. of the Court of Justice, defining the limits of the pow- family. What are the tensions and convergences with guardians of this system. In this context, ex post crimi- The Statute is however silent on the supervisory tasks ers of national Courts when authorizing inspections. the evolution of national constitutional traditions with nal sanctions, which are imposed once the damage conferred on the ECB via the SSM Founding Regula- The paper then analyses the scope and depth of the regard to working mothers? This panel explores how occurs should have a marginal role. In practice, more tion. There can be thus different interpretations con- investigatory powers given to the Olaf, the ECB, and the logic of free movement is disrupting the traditional and more national criminal courts define the contours cerning the powers of the European Court of Auditors the ESMA, showing how the model at first elaborated family in Europe. The backlash against such disruption of environmental protection: the very cumbersome and the obligation of the SSM to provide information in competition law has been adapted. Through the will also be discussed. and layered character of environmental legislation, in relation to such supervisory tasks. These interpreta- exam of recent cases that already emerged in the combined with the inefficiency and the malfunctions tions have to take into account the independent role area of financial inspections, the paper challenges the Participants Julie Suk of public administrations, moves the focus of envi- of the SSM in performing the supervision of banks as existing model of judicial review in providing adequate Stéphanie Hennette-Vauchez ronmental protection from prevention to reparation well as the delicate sector in which it operates. Market legal safeguards against the exercise of authority by Ivana Isailovic of the damage occurred. The final outcome is a no- reactions to the publication of information concerning EU administrations, and questions its compatibility Moderator Mathilde Cohen win situation: on one hand companies are found to financial institutions or their supervision may affect with the standards set by the European Court of Hu- Room 7C-2-12 follow cumbersome administrative procedures and financial stability. The issue has emerged recently in man Rights. yet have to face criminal liability and, eventually, are the framework of an own initiative special report of the compelled to suspend or shut down their industrial European Court of Auditors on the Single Supervisory Julie Suk: The Twenty-First Century Working activity; on the other hand, the community as a whole Mechanism and gave rise to a debate that involved Mother in European Constitutions suffers environmental damage, which is sometimes other European Institutions. The paper starts from This paper engages the working mother as a irreversible. In order to explore the problem, the paper this case to discuss on the right balance between the subject engaged by the national constitutions in Eu- will be divided into three parts: the first will outline the legitimate need for the SSM to be accountable and rope that emerged after World War II. Drawing on the European legislative and judicial framework setting the necessity to ensure its independence, as well as Weimar Constitution of 1919 postwar constitutions the principles and regulating the main administrative its ability to manage sensitive and confidential infor- endeavored to guarantee equality between men and procedures instrumental to environmental protection; mation provided by the supervised banks in order to women by extending special protections to mothers. the second will provide an empirical analysis, compar- perform its supervisory tasks. The paper also reflects, The family was also given special constitutional status, ing three environmental cases in which administrative more generally, on the impact that a more or less in- and children born out of marriage were also protected. procedures and decisions have clashed with criminal trusive scrutiny of the European Court of Auditors may This paper examines how war affected the constitu- courts rulings; the third will identify the main problems have on the banking sector and on financial stability. tional treatment of women work, and family, and how emerging from the interaction between administrative constitutional courts are adapting these provisions decisions and criminal courts’ rulings and will assess Maurizia De Bellis: Administrative Inspections for twenty-first century working parents. The relation- their impact on the effectiveness of environmental in EU Law and Judicial Control ship of this evolution to EU interventions on pregnancy, protection. An increasing number of EU institutions and maternity, and gender equality will also be explored. agencies conduct administrative inspections. This is Giulia Bertezzolo: Access to information and au- not only the case of the Commission in antitrust pro- Stéphanie Hennette-Vauchez: Gender Repro- diting powers of the European Court of Auditors ceeding, but also of the European Anti-Fraud Office duction and Freedom of Circulation on banking issues (OLAF), investigating fraud against the EU budget, of This paper illustrates the ways in which biomedical The general powers of the European Court of Audi- the European Central Bank (ECB), inspecting credit law (and laws relating to ARTs in particular) increas- tors’ are laid down in Article 287 of the Treaty on the institutions, and the European Securities and Markets ingly appears to be circumvented and thus potentially Functioning of the European Union (TFEU). The article Authority (ESMA), inspecting the premises of credit challenged by the impact of EU-grounded freedoms sets out an obligation for the European Court of Audi- rating agencies. The fact that EU administrations do of circulation. National legislative prohibitions (such as tors to examine all revenue and expenditure of the not simply requests national authorities to conduct bans on surrogacy or on post mortem insemination in Union and of other bodies, offices or agencies set up investigations in a given field, but have the power to France) are indeed increasingly and successfully cir- by the Union. The article however does not specifically carry out inspections within the territory of the member cumvented through the exercise of the free of move- refer to the European Central Bank (ECB) or the Single States, breaks with the paradigm, dating back to Max ment of persons, even though explicit references to EU Supervisory Mechanism (SSM). This is the case also for Weber, according to which States retain the monopoly law-grounded fundamental economic freedoms re-

Concurring panels 240 Concurring panels 241 main very rare, as if inappropriate or taboo. The paper 142 The European Court of Human actors involved in these cases (claimants, defendants, underlines the role played by activist jurists and law- then seeks to draw attention to forms of backlash that Rights at the Grassroots lawyers and human-rights activists) the paper traces yers in ‘importing’ ECtHR case-law in court proceed- this increased practice of circumvention through circu- Level: exploring the Court’s the relevance of ECtHR case law in triggering such ings. The paper highlights the increasing attention lation triggers. In particular, it looks at the increasingly role in governing religious mobilizations in the actual process of litigation and paid to the Court by activists from the religious sector naturalist and principled approach of legal regulations pluralism on the ground finally in shaping the actors’ arguments. The paper of civil society and points out that social mobilizations of biomedicine that takes place in reaction to what is thus demonstrates the different usages and interpre- are key to understanding the ‘indirect effects’ of the framed as excessive and uncontrolled commodifica- This panel speaks to the question of ‘to what extent tations of ECtHR case law in national courts, exposing ECtHR in present-day Romania, both within and out- tion of human material. Legal evolutions might ensue, do courts succeed in achieving their goals and un- at the same time the ways in which developments in side the courts of law. as some recent cases (involving surrogacy and post der what conditions?’. The European Court of Human Strasbourg directly influence national actors’ motiva- mortem insemination but also same sex parenting) Rights (ECtHR) is an arena where some of the most tion to mobilize and even shape the very outcome of Ceren Ozgul: “Genuine Belief” in the Inter- have led to legislative proposals that aim at creating challenging questions around European religious plu- religion-related cases in national courts in Greece. national and National Courts: The ECtHR and legal sanctions for French citizens who travel abroad ralism are deliberated, and its case law has centrally Grassroots Mobilization around Conscientious in order to access forms of reproductive care that are contributed to European efforts to govern tensions Pasquale Annicchino and Alberta Giorgi: A two Objection to Military Service in Turkey prohibited in France. between secular and religious worldviews. In light of speeds impact? Italy religiously motivated One challenging question the European Court of scholarly debates questioning the direct effects of claims and the European Court of Human Rights Human Rights is facing regarding the Article 9 of the Ivana Isailovic: European economic governance courts, this panel reflects research focused on devel- Italy, as other countries, has recently developed a European Convention of Human Rights is its defini- family law and gender opments that take place ‘in the shadow’ of the ECtHR. complicated relationship with the European Court of tion of belief in the area of conscientious objection to Debates about European Union economic gover- It engages especially with the extent to which ECtHR Human Rights. This is part the result of recent decision military service. The Court’s Grand Chamber decision nance often remain silent on the role family and family decisions define the ‘political opportunity structures’ by the Italian Constitutional Court but also the out- of Bayatyan v. Armenian (2011) recognized the right laws and policies are playing in the EU context. This and the discursive frameworks within which citizens come of a complex system of enforcement according to conscientious objection to military service under paper considers the interplay between EU economic act. What do we learn about the relevance and mobiliz- to which even claimants that win cases in Strasbourg Article 9 when based on a “person’s conscience or his project – including its ‘social’ dimensions – and family ing potential (or lack thereof) of the ECtHR’s case law have to resort to the Constitutional Court to have a deeply and genuinely held religious or other beliefs”, laws and policies. It argues that EU legislation de- when examining its uses (or lack thereof) in national/ declaration of unconstitutionality of the law found to whilst in Ercep v. Turkey, only months later, the ECtHR signed to bolster the common market and increase local level case law? The proposed panel explores this be in breach of the Convention. Besides these tech- extended the right only on grounds of religious belief. economic growth, has in fact also shaped the interac- question by drawing on empirical research conducted nical aspects, the decisions of the Strasbourg Court The definition(s) of the right by the ECtHR both contrib- tions within the family, have influenced family law and in four country contexts by lawyers, political scientists, provide also an environment for discursive narratives uted to and limited the struggle against compulsory policies and social norms. In order to substantiate this anthropologists and sociologists, under the auspices and political opportunity structures. This is particularly military service among religious and non-religious ac- claim, the paper looks at the EU legislation concern- of the European Research Council-funded research true in the cases involving clashes between secular tors in the field. This paper examines the relevance ing gender equality and work/family balance. While project on the impact of the ECtHR religion-related and religious worldviews. In this paper, through an and mobilizing potential of the ECtHR’s case law on these measures aim primarily at regulating the labour case law at the grassroots level (Grassrootsmobilise). analysis of national case studies and key-witnesses conscientious objection to military service as well as market in order to increase women’s participation and interviews, we assess how and to which extent claims the obstacles it presents for grassroots actors in Tur- foster gender equality (including in time of financial Participants Margarita Markoviti based on provisions of the Convention and decisions key. Specifically focusing on Court’s decision Ercep v. and political crisis) they also transform the family and Pasquale Annicchino and of the Court have contributed to mobilization and out- Turkey in relation to Bayatyan, this paper follows legal its regulation in a way that embeds the family in the Alberta Giorgi comes in national courts. We find that secular actors mobilization on conscientious objection to compulsory broader EU economic project. Mihai Popa have been more willing to mobilize on the basis of military service in Turkish national courts on two tracks: Ceren Ozgul arguments based on the use of supranational and pacifist anti militarist action and religiously based con- Moderator Effie Fokas European norms. scientious objection. Room 7C-2-02 Mihai Popa: Who cares about Strasbourg? The role of activists in foregrounding the case-law Margarita Markoviti: Religious pluralism and of the European Court of Human Rights in reli- Grassroots Mobilizations in Greece: The dif- gion-related litigations in Romania ferent uses of European Court of Human Right The European Court of Human Rights (‘ECtHR’ or religion-related jurisprudence in national and ‘the Court’) has recently become arguably the most local courts visible international court in Romania, its legitimacy This paper examines the different ways in which hard to contest. The use of ECtHR jurisprudence European Court of Human Rights (ECtHR) decisions as a professional evaluation criterion for Romanian around religion provide the “political opportunity struc- magistrates has surely played a role in increasing tures” and the discursive frameworks within which citi- the frequency of references to the Strasburg Court in zens in Greece mobilize. It focuses on two cases – one domestic proceedings. But in religion-related cases, adjudicated at the Council of State and another at a additional dynamics must be taken into account for local administrative court in Chania – that touch upon understanding the ECtHR’s visibility. This paper inves- core recurrent questions around the governance of tigates in-depth two of the most prominent domestic religious pluralism and the prevalence of the Chris- litigations on matters related to religion in Romania tian Orthodox Church in the country: the presence of in the last decade: the display of religious symbols in religious icons on courtroom walls on the one hand public schools and the legal recognition of same-sex and the rules governing exemption from religious couples. Based on the analysis of court files (judg- education in public high schools on the other. Draw- ments written submissions) and on interviews with the ing on extensive fieldwork conducted with a range of main actors involved in these litigations, the analysis

Concurring panels 242 Concurring panels 243 143 The impact of individual 144 The Relationship between from this jurisprudence. In particular, it asks whether 145 The institutional environ­ complaint mechanism in the EU Courts and Other the Court has adopted an appropriate standard of re- ment and the communicative Turkey: Recent findings on Actors in Data Protection view in its assessment of measures in this field. tools of Supreme Court the Constitutional Court Governance as benchmarks of their Orla Lynskey: The role of collective actors in independence The panel aims at sharing the interim findings of an While substantive data protection law has attracted data protection governance ongoing research project on the Turkish Constitutional much attention in recent years, the institutional as- Article 8 of the EU Charter of Fundamental Rights Is the “uncontrolled” and “growing power” of Su- Court which is fully funded by the Turkish National Sci- pects of data protection governance remain largely specifies that compliance with data protection rules preme Courts and Constitutional Courts so obvious? ence Foundation (TUBITAK). The Project focuses on overlooked. This panel examines the role of courts, shall be subject to control by an independent authority. Are there not elements which show that the power of the impacts of individual complaint mechanism before in particular the CJEU, in data protection governance. While these authorities have played a positive role in courts is not so absolute as their detractors present the Constitutional Court as adopted by September More specifically, the three papers seek to shed light the adoption of advisory guidance on the data protec- it? When we look at the concrete institutional envi- 2012. Following issues fall within scope of the Project: on the relationship between the CJEU and other enti- tion rules, their track record for litigating to enforce the ronment and the political dynamics embedding Su- The interpretive shifts in constitutional case law, sys- ties. It shall therefore consider, firstly, the role of the data protection rules is less enviable. Many of the key preme Courts and Constitutional Courts, how can we tematic weaknesses of Turkey’s human rights protec- Court vis-á-vis third countries in the context of so- protections offered by data protection law, for instance describe the real “Independence” of the Courts and tion, judicial dialogue between the Constitutional Court called ‘adequacy’ assessments. It then analyses how the prohibition on purely automated decision-making, what real margin of autonomy in their organisation and other apex courts, implementation of international the CJE’s data protection jurisprudence, and the stan- have therefore not yet been applied by Courts. In con- and communication can the Courts derive from it? human rights treaties as reference norms other than dard of review it has endorsed, influences the fragile trast, the private enforcement of data protection law The purpose of the panel is to move beyond a static ECHR, and the possible empowerment of both the balance of powers between Member States and the by collective actors has been instrumental in shaping analysis of the power of Supreme Courts and Con- individuals and the Court. In the proposed panel, an EU. Finally, it will consider the role litigation by collec- this body of law. This is likely to increase given the stitutional Courts as a disembodied power. It aims overview of the project and interim outputs will be in- tive actors has played in developing data protection provisions in new General Data Protection Regula- at qualifying the assumed strong normative power of troduced by Bertil Emrah Oder, the principal investiga- law and the institutional implications of this private tion permitting representative (or group) actions. This these Courts and thereby at putting into perspective tor of the Project, who serves as the panel chair. The enforcement. paper examines the role of collective actors in data the “counter majoritarian difficulty” by contextual- Project researchers will deliver their papers on specific protection governance and considers its implications ising it in a particular institutional environment and topics representing fragilities of judicial protection of Participants Christopher Kuner for the future development of data protection law. dynamics. It aims at portraying the independence of human rights in Turkey such as freedom of press (Betül David Fennelly Supreme Courts and Constitutional Courts by taking Durmuş), right to elect and to be elected (Mehmet Orla Lynskey into account their specific institutional context and by Utku,) criminal law issues (Levent Emre Özgüç), and Moderator Michele Finck looking at their communicative tools to see how they impact of rights-based approach of the Constitutional Room 8A-2-27 self-portray their position in the balance of powers. Court on Court of Cassation (Sümeyye Elif Biber). The speakers – guided by a preliminary questionnaire – will, first, analyse institutional procedures and re- Participants Betül Durmuş Christopher Kuner: Third-country’ legal re- sources of Supreme Courts and Constitutional Courts. Utku Öztürk gimes and the CJEU Second, they will concentrate on tools and techniques Levent Emre Özgüç Recent case law has given the CJEU an unprec- of communication of courts, e.g. annual reports, press Sümeyye Elif Biber edented role in ruling on the adequacy of data protec- releases, annual case law collections, et cetera. The Moderator Bertil Emrah Oder tion standards in third countries. The CJEU is the ulti- hypothesis here is that those techniques are of spe- Room 8A-2-17 mate authority for deciding questions concerning the cial importance as they reveal which margin of au- interpretation and validity of EU law, and traditionally it tonomy Supreme Courts and Constitutional Courts has not passed judgment on the law of third countries, have for portraying themselves and their interactions Betül Durmuş: Does the Turkish Constitutional but this situation is changing. This paper suggests that with the other powers. Court Guard Freedom of the Press? An Assess- the Schrems judgment, which allowed the CJEU to ment of the Individual Complaint Case Law determine whether the level of data protection offered Participants Sophie Weerts in a third country is ‘essentially equivalent’ to that in Elaine Mak Utku Öztürk: Critical Issues from the Individual the EU, is at odds with the Court’s traditional judicial Céline Romainville Complaint Case Law of Turkish Constitutional restraint in this area. It analyses the consequences Moderator Patricia Popelier Court Regarding Political Sphere of this judgment for future cases and examines the Room 8B-2-03 broader implications of this changed – and more ac- Levent Emre Özgüç: The Turkish Constitutional tive – role of the CJEU in determinations of ‘adequacy’. Court’s Individual Complaint Mechanism as a Sophie Weerts: Annual reports as indicator of Pathway to the Right to Liberty in Cases of De- David Fennelly: The CJEU and the Political Or- the Independence of the Swiss Federal Su- tention and Arrest gans in Data Protection Governance: Striking preme Court and the Supreme Court of Canada the Right Balance? Dr. Sophie Weerts (University of Neuchâtel/Uclou- Sümeyye Elif Biber: The Impact of the Individual With the shift of data protection from legislative vain) will discuss the impact of Parliament and Govern- Complaint Case Law of the Constitutional Court creature to fundamental right in EU law, the landscape ment in the administration of Supreme Courts in light on the Judgments of the Court of Cassation: of data protection governance has radically altered. of the implementation of tools of New Public Manage- Learning Experiences Through its jurisprudence under the Charter, consti- ment on the Swiss Federal Supreme Court and the tutionalizing core principles of data protection law, the Supreme Court of Canada. CJEU has played a central role in shaping the new landscape. This paper explores the relationship be- tween the CJEU and the political organs as it emerges

Concurring panels 244 Concurring panels 245 Elaine Mak: The Independence of the Supreme 146 The Judiciary: Views from question of the legitimizing role of international courts development of transnational law, but also transna- Court of the Netherlands (Hoge Raad) a Chang- Political Theory and tribunals: Do such courts and tribunals ensure tional law’s evocative and transformative character – ing Institutional and Communicative Context the necessary encounter between law and non-law? always already intimating the manifold possibilities Prof. Elaine Mak (Utrecht University) will assess The reservations that traditional legal perspectives And is there in fact a need for international courts and disclosed by alternative visions of the Real. Courts are the Independence of the Supreme Court of the Neth- have harboured about politics in the courtroom have tribunals to have such a legitimizing function? thus always called upon to stand as the gatekeepers erlands (Hoge Raad) in a Changing Institutional and also curbed the more general discussions about the of parallel worlds, and the choice among these worlds Communicative Context. She will focus on the Court’s functions of the judiciary in democracies. The judi- Julen Etxabe: Courts and the Authority of the ought not to be necessarily predetermined. approach of recent reforms regarding case selection ciary’s deferent submission to the elected branches Dialogical and external communication as indicative of its self- is all too often seen as the only criterion considered. The twofold challenges of the countermajoritarian Panu Minkkinen: The Whirlwind of Rights’: portrayal in the balance of powers. This may seem particularly relevant in civil law juris- difficulty and the judicialization of politics worldwide Claude Lefort’s Radical Phenomenology of Hu- dictions, but as recent confrontations between the make the legitimation of courts ever more necessary, man Rights and Judicial Politics Céline Romainville: The independence of the executive branch and the judiciary in the US indicate, albeit no less complicated. In this presentation I focus Unlike their Anglophone counterparts, French rep- Cour de cassation and of the Constitutional it has a broader appeal as a research question as well. on the phenomena of “judicial dialogues” (i.e. cross- resentatives of the so-called ‘post-Marxist’ or ‘radical Court of Belgium in context: Institutional envi- The panel addresses these questions finding the tra- fertilization, judicial borrowin, uses of comparative and democratic’ movement have often entertained a more ronment and communication tools ditional limited view both objectively untenable and foreign sources), which has come to the forefront in re- optimistic view of the revolutionary potential of hu- Prof. Céline Romainville (Uclouvain) will focus on theoretically weak. Not only do courts factually play cent years. Departing from authors who have analyzed man rights. Whereas in the English-speaking world hu- the question of the independence of the Belgian Cour a more proactive role in democracies than traditional this phenomenon in an international context (Slaughter, man rights are often seen as (yet) another neo-liberal de cassation and Constitutional Court of Belgium. Her accounts would suggest, but this role can also be Jackson, Tushnet, Choudry, Bobek), I rely on a rather ploy, the French have considered human rights more contribution analyses the institutional embedment of theoretically defended. Drawing on these presuppo- specific notion of dialogue borrowed from philosopher as a challenge to the very same neo-liberal regime. those two Courts and sketches the constraints that sitions, the panel will explore the democratic dimen- and literary theorist Mikhail Bakhtin. Whereas Bakhtin After decades of Marxist human rights critique, the flow from this institutional embedment, among other sions of the judiciary with special reference to insights famously presented the dialogical against a monologi- discussion in France took this decisive turn in 1980 a strong dependence to the executive and to the leg- provided by contemporary political theory which, we cal style of discourse – in the arts, sciences, religion, with Claude Lefort’s seminal article ‘Politics and Hu- islative regarding the administrative and budgetary claim, remains an underused resource in research philosophy and the law – I adopt a narrower definition man Rights’. This paper attempts to, first clarify the questions, security, management, and nominations. on the courts. The scope of analysis is not limited to of dialogism as the kind of utterance internally consti- position of human rights in Lefort’s unique blend of The reports of the Belgian constitutional Court and of traditional jurisdictions, but also includes the interac- tuted by many and opposing voices. Dialogism is thus phenomenologically and psychoanalytically inspired the Belgian Cour de cassation reveal complex interac- tion between the judiciary and other institutions, as a form of authority that opens itself up to the other as political theory. Human rights, and by extension rights tions between powers and highlight the influence of well as between different courts beyond state borders. constitutive of the self. In the talk I will elaborate on more generally, are an integral element in the ‘savage Public Management principles on those interactions. examples from the European Court of Human Rights, democracy’ that Lefort envisioned as the only plau- Participants Søren Stig Andersen where the dialogical ushers new forms of authority and sible challenge to neo-liberal totalitarianism. From this Julen Etxabe legitimacy. Unlike the principle of deference, based starting point, the paper will then continue to discuss Massimo Fichera on the idea of autonomous and clearly demarcated the position of the judiciary in contemporary democ- Panu Minkkinen spheres of action the dialogical is profoundly inter- racies. Standard accounts of the separation of pow- Moderator Panu Minkkinen (as well as intra-) penetrated. Most importantly, and ers reduce the courts’ constitutional functions to the Room 8B-2-09 contrary to the communicative ideal of dialogue, dialo- application and interpretation of laws passed by an gism is characteristically confrontational and polemic, elected legislator. But as the relationship between the which is to say political. legislative branch and the executive has changed, so Søren Stig Andersen: The Legitimizing Role of too has the relative position of the judiciary. A strong the Courts Massimo Fichera: Transnational Courts and the executive as the engine of legislative initiatives sup- In this paper, focus is shifted from the prevalent Image of Conflict ported by a weak ‘rubber-stamp’ legislature has high- question of the legitimacy of the judiciary to the no The relationship between transnational courts lighted the democratic functions of the judiciary that less important question of the courts’ legitimizing role is often portrayed as a conflict relationship either in go beyond the ‘deferential’ role of standard accounts. with regard to the law and the state. To analyze this terms of conflict of laws (private international law), or The paper will try to provide a theoretical framework for question, a concept of the subjectification of the law in terms of cross-border dialogue, or in terms of con- this more political role through Lefort’s understanding will be developed on the basis of Levinas’ phenom- stitutional tensions between organs claiming ultimate of human rights. enologically sustained philosophy according to which authority according to the criteria and paradigms be- subjectification is the result of an encounter with the longing to their own legal system. While cross-refer- entirely other, the Other. It is argued that the subjec- ences and mutual influence are very much a part of tification of the law and of the state raison likewise transnational law today, endurance and self-assertion depends on an encounter with non-law without which are also increasingly detected. Yet, conflict is mostly law would remain for-itself. Then, not only the law but seen as an integral part of law, entirely manageable also the state would be at risk of becoming totalitarian. through legal rationality. This paper seeks to redefine Whereas such encounters between law and non-law the image of conflict as not only an essential aspect of are only poorly facilitated within administrative law, transnational law, but also one of the key indications of courts offer a more adequate scene for the law and the the “return of the political” within the broader phenom- state represented by the judge to encounter the Other enon of transnational integration. It will focus on the in the shape of the unique and concrete case and its interplay between the Court of Justice of the European parties. Without the judicial process the law therefore Union (CJEU) and national constitutional courts as an would be at risk of remaining for-itself and thereby lose emblematic example. The aim is not merely to show its legitimacy. This realization opens up towards the the pitfalls of the liberal paradigm expressed in the

Concurring panels 246 Concurring panels 247 147 The Limits of Constitutional amendment power, a constituted power overriding tent of the amendment to the constitution in question common temporal limitation on constitutional amend- Change the constituent power that is the author of the ‘spirit and the substantive standard taken, in some cases ment powers. At first look, one would expect that of the constitution’. Through Carl Schmitt’s distinction courts face similar challenges which are related to constitutional amendments could be a useful tool for Limitations on constitutional amendment powers have of the constitution and constitutional laws, and the the circumstances of the case. Alongside other ele- overcoming various crises. On the other hand, there become a growing trend in global constitutionalism French distinction of pouvoir constituant originaire and ments, (a) the time that passed since the enactment is a fear that during emergency times, amendments and with it judicial review of constitutional amend- pouvoir constituant dérivé, this paper explains how of the amendment and the time of the examination would be used for suspending constitutional rights ments. This panel will focus on some of the most burn- the organic justification rests on the understanding by the court, (b) the fact that people previously have and freedoms or in other ways which might lead to ing dilemmas of limits of constitutional change. Can a of ‘democratic decisionism’ which fervently favours expressed their opinion on the amendment by means desolation of the entire democratic regime. Indeed, normative justification be offered to justify some types the constituent decision over constituted politics and of direct democracy, or (c) the repeated modification of the amalgamation of the two extraordinary powers of limitations on constitutional amendments? Should thus sees the doctrine of unconstitutional constitu- the challenged provision by the constitution-amending (amendment and emergency), has proved to be a the framework of interpretation offered by doctrines of tional amendments as the protection of the higher power are all contextual elements which should be common instrument of ostensible ‘legal revolutions’. unconstitutional constitutional amendments include democratic decision from the contingent and tempo- taken into consideration by the courts. However, the Therefore, this temporal unamendability concerns a contextual element? Can a constitutional change rary democratic majorities. By definition, the organic substantive standards of examination in most of the the delicate balance between constitutional preser- through courts be considered “unconstitutional”? And justification focusses on the underlying principles of cases are not sensitive to these questions. The paper vation and constitutional adaptation, tilling it towards in which manner should we regulate constitutional constitutions, yet is hardly interested in what these aims at theorizing the problem of contextual elements the former. This limitation raises fascinating theoreti- changes during emergencies? These issues will be principles should be. Consequently, it serves to justify in the judicial review process of constitutional amend- cal, practical and institutional questions, which are examined from both theoretical and comparative jurisdiction-specific constitutional cores which may ments. For that purpose I will test the idea of including conspicuously absent from the literature. In particu- perspectives. consist of some particular values that amount to a tool the examination of contextual elements in the clas- lar, this limitation might be considered dangerous as of exclusion of certain parts of society that did not have sic frameworks of interpretation offered by doctrines it may lead to the use of extra-constitutional means. Participants Tarik Olcay a chance to be part of ‘we the people’. There is no value of unconstitutionality of constitutional amendments. This research would review the historical origins of Zoltán Pozsár-Szentmiklósy test for the substance of unamendability, as long as it Alongside analysing the supporting theoretical argu- this prohibition, its philosophical-theoretical founda- Mikolaj Barczentewicz forms the democratic decision that founded the con- ments and counterarguments, I will also restructure tions and practical challenges, in order to propose a Yaniv Roznai stitutional order. This paper seeks to explore whether the reasoning of selected court decisions to test in more suitable constitutional design for constitutional Rehan Abeyratne a normative justification can be offered to justify some practice the compatibility of this new approach with amendments in emergencies. Moderator Ioanna Tourkochoriti types of limitations on constitutional amendments. the classic doctrines. Room 8B-2-19 Taking issue with the organic justification which serves Rehan Abeyratne: Discussant to justify fundamental features of jurisdiction-specific Mikolaj Barczentewicz: Constitutional change constitutionalism, the normative justification aims to through courts: when is it really unconstitu- Tarik Olcay: The ‘Constitutional’ Constitution: uphold the very idea of constitutionalism, by selectively tional? Towards a Normative Justification for Constitu- and minimally justifying only the limitations on the con- From the perspective of social science, there tional Unamendability stitutional amendment power that are aimed at limiting is nothing surprising in a statement that courts are The debates as to the relationship between the arbitrary exercise of governmental power. Offering a among the major agents of constitutional change constituent power and the constituted powers and value test for the constitutionality of a polity, rather and that, in some circumstances, they are the main to what extent the former contains the latter have than defining the constitution as the embodiment of agent. However, this conflicts with widely held intu- been reignited by the proliferation of the constitu- the democratic will at the founding moment, it argues itions among lawyers of many jurisdictions that their tional trend of the judicially enforced limitations to that there are normative requirements for the justifica- courts either lack legal power to make law in general the constitutional amendment power over the past tion of constitutional unamendability. The normative or, at least, that they lack legal power to make law of few decades. This tension between the constitu- justification does not seek to protect the identity of the such great significance as constitutional law. And ent and constituted has manifested itself as crises constitution, but the very characteristic that makes a when some courts clearly take part in constitutional of constitutional amendment before courts across polity constitutional. It therefore rejects the arguments change, those intuitions held by lawyers give rise to several jurisdictions. Courts have managed to strike coming from democratic decisionism and rests on claims of ‘unlawfulness’ or ‘unconstitutionality’ of the down constitutional amendments they regarded to liberal constitutionalism offering a justification for a courts’ actions. There is considerable conceptual con- have violated the fundamentals of the constitution. minimal set of values limited to the securing of the fusion over when constitutional change through courts Yet, while there are numerous countries in which this ‘constitutionality’ of a constitution. is unconstitutional (or unlawful) and when it is not. For- doctrine of unconstitutional constitutional amend- tunately, this confusion may be dispelled by extend- ments is now established it remains a controversial Zoltán Pozsár-Szentmiklósy: Contextual ele- ing the jurisprudential framework of HLA Hart, aided subject for constitutional theorists: how can courts ments in the judicial review of constitutional by modern social scientific approach to the study of be justified to have the final say in a question appar- amendments normative change. I argue that social practices that ently for the constituent power? The most common The possibility of reviewing constitutional amend- are at the foundation of every legal system may make justification offered both in constitutional theory and ments by judicial organs has a considerable practice the courts a constitutional (lawful) agent of constitu- judicial practice for the judicial oversight of constitu- worldwide and it is also well theorized. The substan- tional change even when no deliberately designed tional amendments is the organic justification. The tive standards used by courts when examining the constitutional rule grants the courts such legal power. organic justification asserts that every constitution conformity of constitutional amendments with the has an unamendable core, through which it protects original text of the constitution can be considered as Yaniv Roznai: Limitations on Constitutional its spirit and identity regardless of whether it contains frameworks of interpretation and reasoning. One can Amendment in Emergencies explicit limitations on the constitutional amendment also note that these methods of examination have Various constitutions limit the power to amend power in its text. Unless these intrinsic limits on con- no such generalized and clarified structure as the the constitution during times of emergency, such as stitutional amendments are acknowledged, the ar- principle of proportionality; however, the functions of times of war, application of martial law, state of siege gument goes, there is the risk of the constitutional these seem to be rather similar. Regardless of the con- or extra-ordinary measures. Actually, this is the most

Concurring panels 248 Concurring panels 249 148 Tr ansitional Justice and Latin America, but an unintended consequence of Katarína Šipulová: Externalities in Transitional the addressing of structural issues in other ways, are Democratization: this focus is to preclude other approaches to TJ that Justice Decisions: The European Union and useful and salient in this context. Can human rights Does International Law may highlight harmony over retribution. On the other Transitional Justice Processes in Post-Commu- watchdogs play any role in turning the tide of reverse Make a Difference? hand, the ECtHR has focused on a much broader set nist Countries transitions? of measures, including for instance lustrations, me- The paper aims to show what factors were in- Transitional decisions were typically seen as process- morials, and property rights, among others. As such volved in the varying dynamics of transitional justice Martin Krygier: Transitional Justice Internation- es governed by domestic law and politics. Although it has seen TJ as a much more nuanced spectrum, of processes in the post-communist countries, particu- al Law and Reverse Transitions in the last two decades, international law embraced which prosecutions are just one fairly small part. An larly the Czech Republic, Poland, and Slovakia, with a The last discussion paper addresses previous par- transitional justice (TJ) topics with international HR unintended consequence of this approach is to look special emphasis being put on “externalities” influ- ticipants’ presentations and sums up current chal- courts deciding on questions of accountability, mem- at TJ as disruptive of the achievements of democracy encing the transitional justice decisions: i.e. factors lenges posed by the international law for the concept ory, and new institutional settings, often overruling and rule of law rather than conducive to them. There- externally constraining domestic political elites and of transitional justice and transitional rule of law. Dis- the choices of domestic decision makers, we still fore, across the Atlantic, different understandings of limiting the scope of potential decisions they could cussant challenges the actual problem of reverse lack a deeper empirical understanding of the inter- TJ inform different visions of “international justice” take to implement particular models of transitional transitions and institutional problems of young de- action between domestic and international actors. as part of the mandate of these courts. It oscillates justice. In my understanding, such externalities are mocracies (both in democracies transited from com- This panel therefore aims to address the impact of between international justice as a stabilizing force especially (1) the influence of the European Union munist regimes and Latin America non-democratic international human rights bodies on democratiza- (ECtHR), to international justice as transformative and its pressure to comply with international human regimes) in the light of transitional rule of law and asks tion and transitional justice processes. First, we look (IACtHR). TJ can thus be perceived either as a proxy rights commitments, and (2) the constitutional courts what role international law and selected form of tran- at general trends in the ECtHR and IAmCtHR case for the rule of law, or an obstacle to it, depending on acting as a proxy for international organisations and sitional justice play in emerging reverse transitions. law. Papers presented in the panel address both nor- which court one relies upon. This paper attempts to human rights bodies. This paper therefore sets out to The discussion paper concludes with a question how mative issues and empirical evidence of their im- reconcile these two conceptions by exploring the address two core aims: first, it offers a comprehensive to re-design a new framework of transitional justice pact, discussing different aims pursued within the case law of the two courts, and comparing them with analysis of the EU’s position on transitional justice, in order to prevent the emergence of current crises? TJ framework. Then we move the attention to other broader issues of engagement of these two courts and compares it with the new 2015 Transitional Jus- international actors, such as the EU and the role of with the rule of law, and narratives of international tice Framework. Second, it shows how significantly TJ in the accession process and accession condi- justice. transitional justice differed in relatively similar states tionality. Panelists address also the current problem with identical minimally sufficient conditions. The case of reversed transitions: democratic backsliding of Ximena Soley: Democratization and Transition- study compares transitional justice decisions made in unconsolidated young democracies, the reactions al Justice as Identity-Forging Moment in the the Czech Republic, Slovakia, and Poland, suggesting of different international actors and their ability to Inter-American System possible fundamental causes of these differences. stay these processes. We ask what framework these This paper offers an alternative narrative of the Special emphasis was put on the “externalization” of actors use and what options they have to stay the Inter-American Court of Human Rights (IACtHR) and transitional justice through international actors such democratic backsliding. transitional justice. Instead of describing how the as the European Union and the Council of Europe, act- IACtHR shaped domestic transitional processes the ing through accession conditionality and other political Participants David Kosar focus shall be on the influence of transitions in the criteria and forms of pressure. Ximena Soley workings of the Inter-American human rights system. Katarína Šipulová First this paper will show why the return to democ- Antoine Buyse: Reverse Transitions and Euro- Antoine Buyse racy set off a virtuous cycle that is key to understand pean Human Rights Law Martin Krygier the dynamics between the IACtHR State organs and This paper delves into the current trend of ‘reverse Moderator David Kosar civil society. In this virtuous cycle States made human transitions’. Transitions are usually assumed to occur Room 8B-2-33 rights and their protection by the IACtHR an important from authoritarian rule to democracy, safeguarded pillar of the transition substantially changing the rela- and secured by integration into international human tionship between domestic and international human regimes. The weakening of democracy, the rule of law David Kosar: Transitional Justice in Regional rights law. Often these changes were cemented in the and human rights in a number of European countries Human Rights Courts and the Paradoxes of In- constitution. For their part civil society organizations puts the assumption of these regimes as anchors ternational Justice made extensive use of the regional mechanisms of against backsliding into authoritarian rule to the test. This paper explores the ways in which transitional human rights protection. These organizations kept Reverse transitions (or the threat thereof) affect the justice (TJ) has been articulated and adjudicated by the human rights agenda front and center and made middle ground between the state and citizens. The two regional human rights courts: the European Court international human rights law become more tightly paper will focus on this shrinking civic space by looking of Human Rights (ECtHR) and the Inter-American enmeshed with the domestic order. In a second step at how state authorities regulate and sometimes truly Court of Human Rights (IACtHR). Both courts have this paper will shed light on the factors that converged endanger the position of the media of civil society or- extensive case law dealing with the matter, but seem for this ‘constitutional moment’ to take place. The ac- ganisations (e.g. through anti-NGO laws) and the free- to approach the goals of TJ justice quite differently. cent will be set on the consensus forged between the dom of public assembly and protest. The question is On the one hand, the TJ cases are the very core of Left and the Right regarding the centrality of human not just to what extent substantive (European) human IACtHR’s jurisprudence. The IACtHR seems to be rights set in the broader context of the global human rights are affected by this, but also how the European very much focused on transitional justice as a triad: rights revolution and the rise of civil society. Finally Convention of Human Rights system, with its Court can investigate-prosecute-punish. This push for more the significance of transitions for the institutional self- and should cope with these trends. Amongst others, it accountability, and for TJ as criminalization, is part understanding of this regional human rights tribunal will investigate whether the tools developed in dealing of what Karen Engle calls “the turn to criminal law will be explored. with the (aftermath of) traditional transitions – from in international human rights”. This approach has dictatorship to democracy and from armed conflict successfully led to a reduction of impunity across to peace – such as the pilot judgment procedure and

Concurring panels 250 Concurring panels 251 149 T HE COURT OF JUSTICE OF THE tial cases. We will see how great impact the CJEU has courts. This will ultimately push the CJEU to rethink 150 The Role of Facts in EUROPEAN UNION: HISTORY AND had on the new rules on fields of choosing the winner, a new subject of governance. The paper explores a Constitutional Adjudication EVOLUTION I the modification of the contract and on the procedural topic of utmost relevance given its fundamental rights regulations. The study also examines the new rules and philosophical – feminist and Foucauldian – im- Apex courts are increasingly grappling with questions based on environmentally sustainability, socially re- plications. about the proper approach to fact-finding in consti- Participants Magdalena Jozwiak sponsibility and innovative goods, services and works. tutional cases. The assessment of social or legisla- Judit Glavanits Thomas Streinz: Advocates of EU Law: The Ad- tive facts raises particular theoretical and practical William Phelan William Phelan: Robert Lecourt as Judge and vocates-General at the Court of Justice of the challenges, since these types of facts cannot eas- Stefano Osella Writer European Union ily be evaluated using ordinary fact-finding methods. Thomas Streinz Of all the appointments to the European Court of The Advocates-General (AGs) at the Court of Jus- Litigation involving social or legislative facts can draw Moderator William Phelan Justice by the Member States, perhaps the most sig- tice of the European Union (CJEU) are a unique feature courts into complex policy debates and render them Room 8B-2-43 nificant was the appointment of Robert Lecourt, for- of the supranational judicial system. They assist the vulnerable to the criticism that their decisions are mer French Minister of Justice, by the government of Court “with complete impartiality and independence” more political than legal in nature. There is therefore Charles de Gaulle in 1962. Lecourt was, we now know, by providing individual and reasoned Opinions which some urgency to the project of theorizing about how Magdalena Jozwiak: Balancing according to essential to the European Court’s 1963 Van Gend en influence the EU law discourse both within and outside judges should approach facts in constitutional cases Google: on the rise of private actors as adju- Loos decision to create European law’s ‘direct ef- the CJEU. To shed light on the role of the AGs, I ad- and understanding the practical implications of these dicators in conflicts between the speech and fect’ doctrine. As President of the Court from 1967 to vance three distinct yet interrelated claims. The first is approaches. Comparative law has much to contribute privacy in the EU 1976, Lecourt was a powerful influence on the Court institutional: While it is true that the AGs were modeled to this endeavour. This panel delves into some of the The aim of this paper is to discuss how the technol- throughout its foundational period which ECJ judge after their French counterparts at the Conseil d’Etat, issues raised by the evolving methods courts employ ogy development brings to the fore the role of private Pescatore described as the ‘Lecourt years’. Lecourt, their role at the CJEU is markedly different because to compile, investigate, and adjudicate facts in consti- actors in shaping and adjudicating on the appropriate however, was not just a judge, but also a writer, author- of the specific character of EU case law production tutional cases. Drawing on the experiences of courts privacy-speech balance. The example on which the ing a stream of publications on legal topics, including in Luxembourg. The second is theoretical: The Opin- in Mexico, Brazil, the United States and Canada, the paper is drawing derives from the CJEU case law and European law, over a period of many years, including ions of the AG, while non-binding, are an important panellists will discuss a range of topics, including the the forthcoming reform of the EU data protection law. books, scholarly publications, and journalism in ven- legal resource whose authority depends entirely on role of social facts in proportionality determinations, The EU’s data privacy system has been undergoing ues such as Le Monde and France-Forum. This paper their persuasiveness. The third is descriptive and the rise of “faux facts” or “alternative facts” and the some tectonic shifts. On the one hand, the proposed sets out, for the first time, a long term assessment challenges the most persistent myth about the rela- role of historical narratives in constitutional litigation. reform aims at strengthening the internet users’ con- of Robert Lecourt as a writer and thinker about the tionship between the Court’s judgments and the AG’s trol of their data by providing for so called right to be challenges of ‘Europe’ and ‘the law’, demonstrating Opinions. It is a misconception to think that the Court Participants Vanessa MacDonnell forgotten and the very broad scope of the right to data continuities in Lecourt’s thought over the decades and follows the AGs. Attempts to gauge their influence via Jamal Greene protection in general. On the other hand, the power thus helping our understanding of the intellectual roots this metric are misguided. Only a careful, contextual Allison Orr Larsen to make decisions on how the right to data protec- of the doctrines of the European legal order. analysis of the legal discourse between AGs, judges, Francisca Pou Giménez tion is to be interpreted and executed is attributed to and academia, reveals how the AGs have shaped EU Thomaz Pereira private actors, most notably search engines. Although Stefano Osella: The gendered subject: gover- law as “Advocates of EU Law”. Moderator Vanessa MacDonnell and such developments seem purely functional in their nance and fundamental rights before the Court Jamal Greene effort to enhance the efficacy of the data protection of Justice of the European Union Room 8B-2-49 system, their impact is much more pronounced as it The paper presents the jurisprudence of the Court marks the shift from the judicial decision making on of Justice of the European Union (CJEU) on trans indi- the scope of the privacy right to the decision making viduals. Firstly, it singles out the narrative of the “gen- Vanessa MacDonnell: Social Science Evidence by private actors. Thus it is the latter that becomes a dered subject” and its functional role to EU law and and Quasi-Concrete/Quasi-Abstract Constitu- norm entrepreneur and enters the normative loop of governance. Since the mid 1990s, the CJEU had to tional Review intermediating between social and legal norms when define the gender status (male/female) of trans indi- Scholars tend to characterize constitutional cases assessing what privacy and speech limits are deemed viduals. This assignment is necessary for many legal as involving either abstract or concrete review. Howev- acceptable. The paper scrutinizes the EU data protec- purposes, for instance in administrative or equality er, the rise of social science evidence in constitutional tion reform from this perspective of power attribution law, where the legal positions of male and female indi- adjudication has resulted in a large number of cases to the private actors and their role and legitimacy in viduals differ. The CJEU performed this task by relying that are best characterized as falling somewhere in shaping the balance between the privacy and speech. objective physical and psychological characteristics of between. Constitutional litigation increasingly requires femaleness and maleness to be acquired as a neces- courts to make decisions about notional constitutional Judit Glavanits: Effect of the CJEU on public sary precondition for legal (re)assignment. In so do- plaintiffs who may or may not be before the courts, or procurement regulation ing, the Court developed a narrative which shaped a who are there in different capacities – as interveners The case law and jurisdiction of the CJEU has “gendered subject”, designed to fit within the legal and as opposed to as named parties, for example. What significant effect on the new directives of the EU on administrative framework of EU governance, ultimately are the implications of these changes in the mode public procurement. During the last two years hun- affecting the very body of trans individuals. Secondly, of constitutional adjudication? Can courts success- dreds of new national rules appeared on public pro- the paper discusses how the evolving understanding fully navigate the complex dynamics of constitutional curement harmonizing national law with 24/2014/EU of the right to gender identity may impact the gendered cases that involve differently situated notional plain- directive (and two other connected directives). The narrative of the CJEU. Indeed, the medical precondi- tiffs, or do these modes of analysis result in errors paper presented at the Conference is collecting the tions required by national legislations and relied on and/or unfairness? Can they be said to expand access most significant parts of the new national – basically by the CJEU have increasingly been deemed at odds to courts for equality-seeking groups or are they a Hungarian – and EU regulation that has been the direct with individual fundamental rights, and ruled out as poor substitute for better-coordinated legislative law consequences of the CJEU’s decisions and preceden- illegitimate by an increasing number of constitutional reform efforts? I examine some of these questions in

Concurring panels 252 Concurring panels 253 the context of the Supreme Court of Canada’s recent this factual narrative. This working paper explores why 151 Te nsions between the Theory specific requirements and standards it has defined in decisions in Canada (Attorney General) v Bedford and the US judiciary has become so dependent on facts and Practice of Global previous case-law. In this light, this paper firstly aims Carter v Canada (Attorney General), which involved in its constitutional decisions, and then warns about Proportionality Analysis to provide a brief typology of the different modalities constitutional challenges to the criminal prohibitions the consequences of such a “fact-y” turn in an envi- and functions of proportionality review by the European on aspects of sex work and physician assisted death ronment where information is so easy to manipulate. Proportionality analysis is the dominant model for hu- Court of Human Rights. Secondly, it will try to explain respectively. man rights adjudication around the world. However, if the specificities of the Court’s proportionality review Francisca Pou Giménez: Fact-Finding and Pro- the broad role and structure of proportionality enjoys by connecting them to the particular context in which Jamal Greene: A Private Law Court in a Public portionality Adjudication in Mexico wide support, the normative content of the steps and this Court has to do its work. In combination the typol- Law System This paper will focus on proportionality adjudica- its precise relation to legality and legitimacy is subject ogy and its contextual explanation will highlight the This paper argues that proportionality analysis is tion in Mexican Supreme Court. Mexico superimposes to harsh disagreement. In response to developments contingency of this Court’s proportionality review, and, essential to the transparent adjudication of modern three systems of judicial review – centralized, semi- in the practice, the theoretical literature on propor- thereby, confirm that in reality there is no such thing as rights conflicts within mature constitutional cultures. centralized and decentralized – being amparo – the tionality has recently offered various accounts of the a uniform or generic set of standards for proportionality. But the context sensitivity that features prominently in semi-centralized channel – the most important for the substance and principles that should govern the ap- proportionality analysis must be accompanied by an protection of rights. I will track the Supreme Court ap- plication of the test. Yet theorizing runs the risk of de- Alain Zysset: Freedom of Expression the Right approach that effectively supports adjudication of so- proach to the acquisition and use of empirical/social/ taching conceptual refinements to the proportionality to Vote and Proportionality at the European cial or legislative facts. Social facts are not historical or expert knowledge necessary to adjudicate on propor- test from the contexts within which they have emerged Court of Human Rights: An Internal Critique personal in nature and therefore are not typically mat- tionality grounds by two different means: one by ana- which may result in a contextual fault line between This article offers an internal critique of the Euro- ters of witness credibility and are not likely to be within lyzing what the Plenary Chamber explicitly said about theory and practice. pean Court of Human Rights’s deferential approach to the special knowledge of the parties. They also need this matter in resolving the 2009 HIV amparos (where the content and limits of the right to vote (under the not be scientific or technical the usual subject of ex- the Court stroke down the Mexican Army regulations Participants Mattias Kumm right to free and fair elections, Article 3 of Protocol 1 pert witness testimony. The usual assumptions the U.S. ordering the expulsion of HIV-positive personnel). And Janneke Gerards ECHR). Rather than imposing an independent theory Supreme Court makes about facts -- that they are best second, by analyzing what the Court has actually done – Alain Zysset of democratic rights, my critique is internal as it relies developed through party presentation; that narrow without never again theorizing specifically about the Matthew Saul on the Court’s own conception of democracy devel- standing or conservative intervention rules support matter – in recent high- profile proportionality cases Moderator Matthew Saul and oped under Article 10 (freedom of expression) and 11 rather than detract from their effective adjudication; such as the one on the recreational use of marihuana. Alain Zysset (freedom of reunion and assembly). I use democratic that appellate courts should not review them de novo The analysis will provide then a first description of what Room 8A-3-17 theory to show that the Court’s conception reveals or should hear legal arguments rather than evidence the project’s core concerns look in an “intermediate” an utmost concern for political inclusion and that -- do not hold with respect to social or legislative facts. system and set the grounds for future comparison of this conception is systematically used by the Court And yet assessments of such facts regularly form the adjudication exercises on the same issues in Colom- Mattias Kumm: Legitimate and illegitimate to balance alleged interferences with Articles 10-11. I basis for constitutional rulings in the United States bia, Argentina, and Brazil. ways of avoiding proportionality in rights then argue that this concern has implications for the and elsewhere. Drawing on comparative experience Even though it has been claimed that the idea of Court’s review of P1-3. While the Court proclaims the this paper discusses the options available to consti- Thomaz Pereira: The Relationship between His- rights is analytically connected to proportionality and complementarity between expression and vote, under tutional and apex courts facing the need to develop torical Facts and Culturally Dominant Historical proportionality analysis has become the dominant P1-3, the Court refrains from balancing interferences and adjudicate social or legislative facts. Narratives in Constitutional Adjudication paradigm used by courts, there are contexts in which and limits its review to proportionality stricto sensu. I proportionality analysis is avoided in practice. The pa- argue that it should do so based on its own cherished Allison Orr Larsen: Constitutional Law in a World per presents examples of legitimate and illegitimate and substantive democratic principles. of Alternative Facts ways and situations in which courts avoid proportion- Oxford Dictionary’s 2016 word of the year was ality analysis. Matthew Saul: Proportionality: a theory for “post-truth”ù and Americans are now familiar with the courts and legislators? phrases “fake news”ù and “alternative facts.”ù Some Janneke Gerards: The specificities of propor- The theory of proportionality analysis targets the combination of technological speed infinite access tionality review by the European Court of Hu- judicial context. Should more theoretical attention be to information, and a diluted notion of expertise has man Rights given to proportionality analysis in the legislative con- led to a very central role in our political discourse for The test of justification applied by the European text? This paper examines how varying the structure factual claims about the way the world works. But – Court of Human Rights (ECtHR) is often mentioned as and content of judicial proportionality analysis informs as we are learning – facts are not always what they one of the most significant and representative exam- the intensity of subsequent legislative processes. The appear to be. And we are naïve to think this will not ples of proportionality review. It is far from clear, how- main focus is on process tracing of three adverse judg- affect the judiciary. Modern constitutional cases in ever, what the ECtHR’s balancing and proportionality ments from the ECtHR against Norway: Folgero, TV the United States often turn on questions of fact: Do rhetoric really entails. Not only does the ECtHR use Vest, and Lindheim. To the extent that the ECtHR is violent video games harm child brain development? a number of proportionality tests which do not have influencing the intensity of legislative processes, it Does money corrupt politics? Is voter fraud a common any clear and well-established meaning – such as the is potentially spreading its model of proportionality occurrence? The factual narrative that accompanies ‘pressing social need test’ or the ‘relevance and suf- across the legislators of Europe. Norway’s centripetal, American constitutional law is not inevitable and is ficient test’ – but also it appears to apply such tests democratic model and high compliance rate make it a not costless. Legal systems outside the United States rather randomly and inconsistently. Moreover, when most likely case study for finding evidence of judicial often answer tough questions about human rights and a closer look is taken at the ECtHR’s reasoning, argu- impact on legislative processes and for illuminating governmental power without citing secondary sources ments of proportionality often appear to play a limited the causal mechanisms. The findings provide a basis or purporting to be an authority on complex questions role. Equally important may be arguments related to the for reflection on the need for theorists of proportion- of fact. There are virtues, certainly, to anchoring legal quality of the process of decision-making underlying an ality to turn attention to legislators and whether this rules in concrete observations about the way the world interference with a Convention right, or the ECtHR may should be as part of a general global theory of pro- works. Less obviously, however, there is also a price to simply review the compatibility of a measure against portionality or a legislative theory of proportionality.

Concurring panels 254 Concurring panels 255 152 you, the people: the political 153 T HE SEPARATION OF CIVIL AND of examining the legitimacy of judicial intervention in joins the executive to refrain or stop – think of criminal dimension of constitutional RELIGIOUS POWERS matters of religion this paper explore the claims on procedure (Makwanyane 1995). On the other, the judge adjudication on electoral religious practice that are facilitated by constitutional orders the executive to act in a particular way, the obli- systems design and judicial intervention. Accordingly it will be gation being one of result like a release (Mhlongo and Participants Hans-Martien ten Napel argued that epistemic frames that Indian courts em- Nkosi 2015), or close to it – think of the antiretroviral The panel aims to explore the relationship between Mathew John ploy to characterise religion results in a misrecognition drug case (Treatment Action Campaign 2002). In ex- Constitutional/Supreme Courts and Parliaments as far Elena Griglio that transforms religion understood as traditions of treme cases, she even acts herself – think of substitu- as electoral laws (in the broad sense) are concerned. Toon Moonen practice and ethical striving into practices founded in tion orders (Trencon 2015). In between, there is a grey Especially in Europe the crisis of political systems Paolo Bonini dogma and doctrine. Thus through the Indian case the area. A court may order the executive to act, leaving seems to determine as side effect an increase of con- Moderator Elena Griglio paper foregrounds the extent to which contemporary discretion about what exactly has to happen or how – stitutional litigation over electoral laws. The impact of Room 8A-3-45 debates on religious freedom are framed by constitu- think of housing rights (Grootboom 2001). In some those controversies on Constitutional and Supreme tional design and the epistemic frames through which cases, an order may look like an obligation to obtain Courts’ role is worthy of investigation also in light of judiciaries manage the challenges raised by religious a result, but in reality be more of an obligation to make the more general political tensions that are moving Hans-Martien ten Napel: In Defense of the Clas- freedom rather than a simple commitment to the norm an effort. In SAPS v SALC (2015), the Constitutional the European scenario. The five papers will address sical Liberal Conception Regarding Religious of non interference. Court forced the police to investigate alleged human how constitutional and/or supreme courts engage in Freedom rights abuses in Zimbabwe. How should future courts the regulation of elections, from both a descriptive Leading U.S. scholar of constitutional interpreta- Elena Griglio: Judicial interpretation of the enforce such an order? How detailed should such an and a normative perspective. The papers will cover tion Michael Paulsen has developed an interesting executive-legislative balance of powers in in- order be for it to be enforceable at all? Does separa- selected European jurisdictions (namely Italy, Ger- theory of religious freedom called ‘The Priority of God’. ternational affairs and its limits tion of powers doctrine impose limits? And how do many, Hungary), which have been chosen because Paulsen distinguishes, first of all, a liberal conception The R (Miller) v Secretary of State for Exiting the enforceability issues impact court authority? they represent examples of courts’ intervention in the of religious freedom, according to which it is widely European Union judgement by the UK Supreme Court dynamics of political competition in times of highly assumed that religious truth exists in a society and offers a significant case of judicial interpretation of the Paolo Bonini: A case about the connection be- adversarial parliamentary debates. In those cases the state is tolerant towards the various faith and other relationship between the Parliament and the Govern- tween the legislation by omission and the judi- Courts counterbalance the lack of ordinary solution traditions. The U.S. however, has developed in the di- ment. The case deals with the question of how to set cial decision in Italy of political conflicts thus positioning themselves in rection of a modern conception of religious freedom, the executive-legislative balance of powers in core The paper will observe what happens when the a somehow extraordinary position (from the point of which no longer recognises religious truth although areas of public policy-making; the question rests on Parliament choose intentionally to not establish some- view of the pure Kelsenian model of constitutional the state remains tolerant. Moreover, still according a major theoretical issue affecting the relationship thing about an issue, because of a huge political de- adjudication) as ultimate guardians of the democracy. to Paulsen, several European countries have adopted between constitutional law and politics. A part from bate, and then the Court has the opportunity to decide The European examples are coupled with the analysis a postmodern conception of religious freedom. This the Miller case, the proposed paper intends to discuss a case about the same matter. Observing how the of the US Supreme Court case law. conception does not just no longer recognise religious the idea that the interpretation and implementation of judge decides the case on the subject and about the truth, but also implies a considerably less tolerant state fundamental criteria defining the executive-legislative method, it could be recognized an institutional (and Participants Francesca Rosa as secularism becomes the established ‘religion’. This balance of powers, as set in legal provisions of binding political) dynamic in advantage of the Judges. In Italy, Jens Woelk view paradoxically resembles the pre-liberal stance of force (usually at constitutional level), is open to politics as a civil-law system, the law making process is split in Ines Ciolli religious intolerance out of the conviction that religious and to the political reconciliation of disagreements. two separated periods. The first, needed and sufficient Graziella Romeo truth exists. In response to such developments and It specifically intends to assess the executive-leg- to set the political will of the People: the legislative one. Francesco Palermo in light of the meeting’s general theme with special islative interaction in international affairs, approach- The other, eventual and however residual: the judicial Moderator Gabor Halmai attention to the role of courts in achieving this, the pro- ing it as an intrinsically political dimension shaped by one. Within the statute about the “civil unions”, the Room 8A-3-27 posed paper will make a case for the classical liberal relational notions that struggle to be defined legally: Parliament chose to delete the disposition that gave position with respect to religious freedom. In light of influence, scrutiny, oversight, accountability. The politi- the right to set the stepchild adoption, after a huge the current religious diversity in society, this position cal salience of the executive-legislative relationship debate. Four days after, the Court of Cassation decide Francesca Rosa: The right to vote according to still appears to be most conducive to safeguarding in international affairs raises a major question on the a case giving the right to adopt. What happened? Dur- the European Court on Human Rights the position of religious minorities in public life in the feasibility of judicial interpretations, as in Miller. Two ing the debate, the president of the Senate recognized increasingly secular, majoritarian contexts of Western arguments, respectively dealing with the constitutional that the statute was a declination of the constitutional Jens Woelk: No Political Question? The Bundes- liberal democracies. significance of the confidence relationship and with principles of the article 2 of the Constitution. This pa- verfassungsgericht and the German (and Euro- the risk that a judicial interpretation may fall short of per will analyze the case, the parliamentary period, pean) Electoral System Mathew John: Framing Religion in Constitution- expected outcomes, are specifically taken into con- the method used by the Court and the impact of the al Power: A View from Indian Constitutional Law sideration. decision on the institutional framework of a kelsenian- Ines Ciolli: The constitutional adjudication on Modern constitutions are texts of power that civil-law system as Italian one. Maybe the judges’ in- equal vote: Italy as a case study framed to make explicit claims on vast swathes of Toon Moonen: Ordering the executive what to terpretation could stop itself in front of an omission of social and cultural life, religion being no exception. do and how to do it: separation of powers in for- the Legislator about a politically and constitutionally Graziella Romeo: Intruding kindly? The US Su- Against this background the Indian Constitution grants eign policy essential matter for the Parliament, alone delegate of preme Court and electoral laws the state explicit power to regulate religion and even Across the globe, courts review executive branch the sovereign People. to reform ethically deformed aspects of religious prac- decisions in an increasing number of areas, even for- Francesco Palermo: When the Constitutional tice. These powers are justified on the grounds that eign relations. We know this as judicialisation of poli- Court writes electoral laws they are vital to shape the ethical horizons of consti- tics. Using South African case law as an example, I will tutional practice but more importantly for the present explore a complication of this phenomenon relating purpose it also opens up considerable room for judi- to the relief a court can grant. Depending on the case, cial intervention and management of religious ques- courts engaging in concrete review have a variety of tions. Therefore Instead of taking the traditional route options. On one end of the spectrum, the judge en-

Concurring panels 256 Concurring panels 257 154 INT ERNATIONAL LAW AND in terms of ensuring equality and legal certainty in the 155 chALLENGES UNDER THE theoretical framework to explain the doctrinal reality of INTERNATIONAL COURTS protection of human rights. ISRAELI’S CONSTITUTION Israeli constitutional law outside the borders of Israel, which views the Palestinian collective as threatening Cecilia Bailliet: Rejection of Requests for an Israel\’s Jewish nature.This also explains the consti- Participants Juan A. Mayoral Advisory Opinion as an Example of Strategic Participants Tamar Hostovsky-Brandes tutional/administrative law divergence. Constitutional Natalia Caicedo and Prudence by the Inter-American Court of Hu- Adam Shinar law sends a message of inclusivity to bearers of con- Andrea Romano man Rights Guy Lurie stitutional rights. Administrative law lacks the consti- Cecilia Bailliet Advisory opinions may be considered to chal- Masri Mazen tutive nature of constitutional law. Wherever there is Marlene Wind lenge sovereignty because they often address politi- Moderator Adam Shinar bureaucracy there is administrative law, which takes Moderator Marlene Wind cal issues which may be contentious at the national Room 8B-3-19 care that things administer themselves and is con- Room 8B-3-09 level. Nonetheless, within the Inter-American Human cerned more with the machineryof the state than with Rights System, the Court has actively utilized advi- individual rights. sory opinions to develop human rights law and nur- Tamar Hostovsky-Brandes: The Diminishing Juan A. Mayoral: Mapping the scholarship in In- ture democracy, in particular addressing the rights of Status of International Law in the Israeli’s Su- Guy Lurie: Diversity in the Israeli Judiciary and ternational Courts: An exploration of networks migrants children, indigenous people, and detainees. preme Court Rulings Concerning the Occupied Prosecution: The Case of the Arab Minority created in journals Human rights advocacy is closely tied to civil society Territories This paper inspects the diversity of the Israeli Ju- The paper explores the development of the inter- groups, organizations, and institutions, such as the This article examines the attitude of the Supreme diciary and Prosecution, focusing on appointments of disciplinary communities of knowledge devoted to Inter American Commission of Human Rights, which Court of Israel towards international law focusing on judges and prosecutors from the Arab minority. The the study of International Courts. For that purpose, pursue litigious strategies to strengthen recognition of the application of international law in the Occupied paper uses two methodologies. First, the paper exam- and following previous contributions in other social new rights by regional courts. This paper argues that Territories in the past decade. The article argues that ines changes in the past two decades in the diversity science fields, we have collected information about the Inter-American Court of Human Rights is currently while the international law of occupation still operates of the Israeli Judiciary and the Prosecution. As shown co-authorships up to 2016 from the core journals in under pressure to uphold its legitimacy and examines officially as the governing law in the territories, the em- in the paper, the prosecution did not include even a law, political science, history and international rela- whether the Court practices strategic prudence by phasis on compliance with the norms of international single Arab prosecutor as recently as about two de- tions. The papers aims to offer a general overview of rejecting certain requests for advisory opinions. In law in the Courts’ decision has weakened, leaving a cades ago. Through active policies of reaching out to the main links between actors and of the main scholars particular, it discusses four cases involving political void filled, among other thing, by Israeli constitutional the Arab minority, the prosecution is now increasing and journals leading the production of knowledge in issues: alleged incompatibility of national legislation law. The article suggests that this shift can be partially its diversity at a pace that has surpassed the Judiciary. the field. Moreover, the paper explores the different with the American Convention, the prohibition of cor- explained by changes in the Court’s self-perception. Second, the paper delves into the history of attempts sub-networks organized by type of court, discipline poral punishment of children, the availability of judi- The article argues that under former Chief Justice to increase judicial diversity in Israel. As shown through and academic institution to identify processes of cial remedies for persons sentenced to death penalty, Barak’s leadership, the Court perceived itself to be part archival sources, in the first 20 years of Israel’s exis- cross-fertilization between the scholarships in Inter- and due process rights relating to the impeachment of the “Global Community of Courts” and thus sought tence, between 1948 and 1968, it appointed only three national Courts. of the president of Brazil. The article highlights that legitimacy among the international community and, Arab judges. Then, within two years, between 1968 and the examples of restraint reveal a complex balance in particular, the international legal community. The 1969, Israel appointed three additional Arab judges. Natalia Caicedo and Andrea Romano: Interna- between the Court’s role in applying and interpreting current Court, on the other hand, perceives itself first Two interconnected changes account for this small tional Courts dealing with the concept of vul- human rights in relation to nurturing democracy while and foremost as a domestic institution, serving and increase in judicial diversity. First, in the 1960s the Arab nerability: the different approach of the IACtHR respecting sovereignty. This signals a possible tension addressing the Israeli public, and is concerned much legal elite began to exert pressure on Israeli officials and ECtHR between the conventi less about how its decisions are accepted abroad. to appoint Arab judges. Second, and perhaps partly Vulnerability as a criterion for allocating rights This difference translates, among other things, to due to this pressure, the Judges Appointment Com- is an emerging legal concept both in EU and Latin Marlene Wind: Who cares about international law? weaker reliance on international law both in practice mittee made the concern to have a diverse judiciary American experiences. It has been progressively used Although Scandinavians are often celebrated as and rhetorically. a top priority. This paper shows that without outside to enhance protection of groups with special needs the vanguards of human rights and international law, pressure, the Judges Appointment Committee does such as asylum seekers, minors or persons with dis- we know little about whether courts and judges in Adam Shinar: Israel’s External Constitution: not make diversity a top priority. The Judiciary should abilities. Both the IACtHR and the ECtHR have taken these countries have embraced those international Friends Enemies and the Constitutional/Admin- seek to adopt the relevant active employment policies into account vulnerability with the aim of identifying courts and conventions that they themselves helped istrative Law Distinction of the Prosecution. positive obligations for national institutions. However, establish after the Second World War. This article I examine the Israeli Supreme Court’s jurispru- whilst the ICtHR has made a broad use of this concept, presents original and comprehensive data on three dence regarding the application of constitutional law Masri Mazen: The Effectiveness of Litigating developing an objective interpretation of situation of Scandinavian courts’ citation practice. It demonstrates to the Occupied Palestinian Territories. The central Rights – The case of the Palestinians in Israel vulnerabilities so that this can be applied to a wide that not only do Scandinavian Supreme Courts engage puzzle the paper seeks to solve is what accounts for The role of the judiciary arises constantly in de- categories of persons (including irregular migrants, surprisingly little with international law, but also that the Court’s willingness to apply Israeli administrative bates on the nature of the Israeli state and its poli- political opponents or homeless) and taking particu- there is great variation in the degree to which they law to the Territories, whereas it remains ambivalent cies towards the Palestinians both in Israel, and the larly into account collective conditions of risk. On the have domesticated international law and courts by about the application of constitutional law. The answer, West Bank and Gaza Strip. Some authors hold the contrary, the ECtHR seems to have adopted a more citing their case law. Building on this author’s previous I argue, does not lie with legal doctrine, but with unar- legal system -and the Supreme Court in particular- as cautious attitude, identifying vulnerability in concrete research, it is argued that Norway sticks out as much ticulated sentiments about the nature of constitutional staunch defenders of human rights and democracy. and subjective situations of the individuals at stake, more engaged internationally due to a solid judicial law. Constitutional law demarcates the political com- Other scholars situate themselves in the comfortable avoiding identifying wide categories and applying vul- review tradition at the national level. It is also argued munity. Those within its scope are a part of the polity. area that combines praise to the Court’s ruling with nerability in circumscribed hypothesis. In this paper that Scandinavian legal positivism has influenced a Those outside it are viewed as potential threats. Thus mild criticism. More critical and less celebratory ac- we will compare the approaches of both Courts, try- much more reticent approach to international case the operative distinction when it comes to Israeli extra- counts paint a less rosy picture and highlight the ju- ing to understand their different use of this concept, law than would normally be expected from this region territorial constitutional application is the Schmittian diciary’s complicity and its role in providing the stamp asking whether this is a fructuous category or – on in the world. “friend/enemy” distinction, which is the only distinction of approval for discriminatory laws and policies and the contrary – it may entail counterproductive effects relevant to establishing political authority. I extend his other human rights violations. This paper will explore to

Concurring panels 258 Concurring panels 259 what extent legal challenges in Israeli courts could be 156 frAMING PROPORTIONALITY constitutional law. Deference refers not to judicial sub- 157 A Global Dialogue with effective in resisting discriminatory laws and policies mission or surrender to the legislature, but to giving Constitutional Judges: The against the Palestinians in Israel. The paper will focus weight to the judgment or opinion of government in I-CONnect 2016 Year-in-Review on cases brought within the last 15 years in three areas: Participants Zdenek Cervinek circumstances of normative or empirical uncertainty. citizenship and immigration, especially family reunifi- Caroline Henckels Many other jurisdictions take such an approach, wheth- In our present era of “global constitutionalism” reliable cation, land rights and restitution, and disqualification Jimmy Chai-Shin Hsu er for separation of powers reasons or for reasons of access to high court case law has become a necessity from participation in the elections for parliament. The Anne van Aaken subsidiarity or the right to regulate at international law. for scholars of comparative public law. Language bar- paper will examine to what extent these cases were Moderator Anne van Aaken An increased understanding of the rationales underpin- riers pose an obvious challenge but the sheer volume successful, and the different factors that explain suc- Room 8B-3-33 ning deference in the context of constitutional review of case law around the world also raises a challenge cess and failure. These factors include local questions would diminish concerns about the Court straying out- of time and resource management. In 2016 I-CON- related to the nature of the constitutional regime and side the domain of judicial power, thereby supporting nect inaugurated a series of year-in-review reports its legitimacy, and more global trends related to the Zdenek Cervinek: Proportionality and Judi- the continuing development of proportionality analysis on developments in the constitutional law of various role of the judiciary. cial Self-Empowerment: Empirical Analysis of as a method of constitutional review. jurisdictions, with a focus on the case law of Constitu- “Transplanting” Proportionality into Czech Con- tional and Supreme Courts. I-CONnect expanded the stitutional Court’s Case-Law Jimmy Chai-Shin Hsu: Dignity Proportionality project in 2017: all reports will be published in a book in This paper builds on an analysis of the German and Capital Punishment: An Analysis of Com- order to offer a first-of-its-kind resource for scholars of Federal Constitutional Court case-law made by Niels parative Constitutional Jurisprudence public law interested in an overview of the case law of Petersen. He challenges the critique of proportionality The abolition of capital punishment has gathered Supreme and Constitutional Courts (possibly) all over as an instrument of judicial self-empowerment. In his steam globally over the past three decades. However, the world. Edited by Richard Albert, Simon Drugda, view, proportionality does not create judicial power. On the controversy remains active in many countries. Where Pietro Faraguna, and David Landau this annual book the contrary proportionality presupposes its existence. effective judicial review is available, the death penalty is published under the auspices of the Clough Center This paper tests this hypothesis using empirical analysis. has often been one of the major constitutional issues for Constitutional Democracy at Boston College. In its It maps the rise of proportionality in the case-law of the faced by the judiciary. The fundamental issue in these first year, the Year-in-Review book will cover over 40 Czech Constitutional Court (hereinafter “the Court”). As cases is whether capital punishment violates human jurisdictions. This panel will feature some of the high preliminary data shows, the Court first introduced its dignity and right to life. In this paper, I cast spotlight on court judges involved in the Year-in-Review project at variation of proportionality in proceedings on constitu- the relatively neglected engagement dialogue, or debate I-CONnect in discussion on the latest developments tional review of legislation. It was meant to be a universal in this body of comparative constitutional jurisprudence. in constitutional law in their jurisdictions, and on the method to review constitutional rights infringements. In I will focus on the approaches of rights analysis with value of this project to the study of public law. the first decade of its existence, the Court was none- which the courts review the constitutionality of capital theless, very reluctant to base its decisions on propor- punishment in general. I will identify major approaches Participants Marta Cartabia tionality in proceedings on constitutional complaints. or patterns of rights analysis on this issue in prominent Dieter Grimm Later on, the Court also introduced a modified version comparative judicial decisions, among which propor- Luc Lavrysen of proportionality in this type of proceedings. But it took tionality review features prominently in recent decisions. Pedro Machete another decade for the Court to unite its constitutional Jurisdictions featured most prominently will be Japan, Jan Zobec review standards in both types of proceedings. In con- the US Hungary, South Africa, and South Korea. The Moderator Richard Albert and clusion, the paper reveals the reasons for the reluctance dialogue to be represented in this paper is not always Pietro Faraguna of the Court to apply proportionality in proceedings on self-consciously conducted by the courts. I critically re- Room 8B-3-39 constitutional complaints. And it compares them to the construct the dialogue by identifying the parts of legal developments of the proportionality in Germany, which reasoning that constitute meaningful debates. I adopt seems to be reverse. this method with an aim to address the following ques- Marta Cartabia: Developments in Italian Consti- tions: If any court is to engage these transnational judi- tutional Law: The Year 2016 in Review Caroline Henckels: An exotic jurisprudential cial decisions, what lessons can be drawn from them? pest? Building a path to proportionality review Are certain approaches more tenable than others? Dieter Grimm: Developments in German Consti- in Australian constitutional law tutional Law: The Year 2016 in Review The Australian High Court’s tentative moves toward Anne van Aaken: Framing Proportionality: Ratio- adopting a European-style proportionality test as a nality and Cognitive Biases Luc Lavrysen: Developments in Belgian Consti- method of constitutional review have been hampered Proportionality analysis (PA) is ever more widely tutional Law: The Year 2016 in Review by concerns the strict separation of judicial power un- used by national and international courts to balance der the Australian Constitution may prevent judges public goals and private rights or rights against rights. Pedro Machete: Developments in Portuguese from engaging in the evaluative tasks that proportional- Proportionality itself is a frame within which we often Constitutional Law: The Year 2016 in Review ity requires. The prospect of judges substituting their think as lawyers. Hitherto, it mostly seen as a rational views for those of legislators in relation to both ques- process of decision-making. But is it? How far does Jan Zobec: Developments in Slovenian Consti- tions of fact and evaluative judgments raise anxieties the frame of the PA itself frame the decision-making tutional Law: The Year 2016 in Review about the proper boundary of the judicial role. This of (judicial) actors? Do biases and heuristics influence paper argues that the manner in which a court under- the decision qua the way PA is set up? The paper aims takes proportionality analysis is crucial to the question to shed light on certain features of PA which might de- whether it is exercising judicial or non-judicial power. pending how the analysis is conducted, influence the In this respect, the concept of judicial deference plays outcome of the decision due to biases and heuristics a vital but thus far undertheorised role in Australian of the relevant decision-makers.

Concurring panels 260 Concurring panels 261 158 International Interaction protection under Article 6.1 ECHR or the preliminary time to the Administrative Court of Appeal of Stock- 159 coNSTITUTIONAL Between Courts: A Swedish rulings procedure by the CJEU, it still raises ques- holm, which requested a preliminary ruling from the INTERPRETATION I Perspective tion about the limits of diverging definitions, views Court. In its judgement of December 21, 2016 (Joined and concepts between European legal orders. The Cases C-203/15 and C-698/15) the Court stated that During the last decades it has become more common Swedish example indicates that even on basic issues, EU law precludes national legislation that prescribes Participants Emilia Justyna Powell and important for national courts to interact with for- important for any legal order and the rule of law in general and indiscriminate retention of data. However, Christina Lienen eign and international courts. These developments im- general, large discrepancies can prevail. The paper targeted retention of data for the purpose of fight- Stefan Schlegel ply challenges for the domestic legal systems. In many will attempt to frame the questions for the purposes ing serious crime may be imposed under certain cir- Michelle Miao States, the structure of the court system, the sources of future comparative studies implicated by this. cumstances. This paper analyses how the different Fulvio Costantino of law that a court may or shall take into account when courts have balanced the important societal interests Daniella Lock making decisions, and the status of court decisions, Vilhelm Persson: The Arlewin Case: Freedom of involved in the above cases. The paper also examines Moderator Christina Lienen are deeply rooted in the State’s constitutional tradi- the Press v. Right to a Fair Trial in Sweden the future of Swedish data retention legislation in light Room 8A-4-17 tions. International interaction between courts may Swedish law has a unique constitutional protection of the December 21, 2016 judgement of the Court. often disturb this traditional order in different ways. In of the freedom of the press. One part of this is signifi- this panel, certain aspects of this new landscape of cant restrictions on liability for expressions in certain Emilia Justyna Powell: Constitutions, Legal international interaction between courts will be dis- media types. A consequence of this is the situation Practice, and the Measurement of Sharia- cussed. The contributions in the panel have a Swedish of the European Court of Human Rights (ECtHR) case Based Institutions in the Islamic World perspective, but the problems discussed are to a large Arlewin v. Sweden (Application no. 22302/10). There, The Islamic legal tradition is more diverse than extent of a more general character. a man that considered himself a victim of defamation other legal traditions because the balance between because of allegations in a TV show, could not press religious and secular laws within domestic jurisdictions Participants Henrik Wenander charges in Sweden. In 2016 the ECtHR held that his is frequently renegotiated. However, many scholarly Tormod Otter Johansen right to a fair trial had been violated. This case illus- analyses of legal systems in the Muslim world rely Vilhelm Persson trates the potential conflict between the freedom of on constitutional instruments to detect sharia-based Joachim Åhman the press and the right to a fair trial. In Sweden, this institutions. Constitutions are, at best, first steps in Moderator Joachim Åhman conflict has for the most part been resolved to the creating a legal apparatus, and the legal system as a Room 8B-3-49 satisfaction of the press, in accordance with constitu- whole – beyond constitutions – determines the size tional traditions with roots in the 1766 Freedom of the of the gaps between constitutional aspirations and Press Act. The legacy of this act is even considered actual practice. An empirical shift towards Islamic le- Henrik Wenander: Endorsing the European Con- one of the basic principles by which Sweden is gov- gal practice, defined as the sharia-based regulations vention on Human Rights? Attitudes in Swedish erned. Thus, the Arlewin case also illustrates a clash and procedures that routinely affect actors within a Law and Politics between the European Convention and the Swedish legal system, can remedy the existing scholarship’s In difference to certain other European countries, protection of fundamental rights, potentially touching limitations by assessing the degree to which actors the European Court for Human Rights (ECtHR) is rarely upon core values of the constitution. This is also a within a state are actually governed by distinctively discussed in critical terms in Swedish media or in con- clash between different approaches to the protection Islamic institutions. Using factor analysis techniques temporary legal and political debate in Sweden. The of the freedom of the press. The European Court often on new data covering Muslim-majority countries’ con- presentation identifies examples of sporadic critical considers proportionality and reasonableness of the stitutions and legal practices, we demonstrate that appraisals of the ECtHR in case-law and in legal de- end result. In Sweden, the printed press and some constitutional and practical variables fall along two bate. Interestingly, no political parties represented in other selected media types enjoy a special constitu- distinct measurement dimensions that often produce the Riksdag have expressed scepticism to the ECHR tional protection, determined solely by technical crite- different conclusions regarding the implementation of system and the role of the ECtHR as such. Concerning ria, not by the content of an expression or by the result. sharia-based norms within a country. The main insight politics on a European level, Sweden has engaged in of this paper is that only measures that couple consti- the reform of the ECtHR in various ways. The presenta- Joachim Åhman: A New Chapter in the Swedish tutional language with measures of sub-constitutional tion discusses the limited criticism of the ECtHR in the Data Retention Saga legal practice are likely to yield accurate conclusions light of the development of constitutional protection of In its judgement of April 8, 2014 (Joined Cases regarding levels of sharia implementation throughout fundamental rights, the status of the convention, and C-293/12 and C-594/12), the Court of Justice (the the Muslim world. aspects of Swedish legal culture. Court) invalidated the Data Retention Directive 2006/24/EC. According to the Court, the obligations Christina Lienen: Two Waves: The Contempo- Tormod Otter Johansen: Depending on an Au- in the directive violated the Charter of Fundamental rary Development of Common Law Constitu- tonomous Concept of Court or Not? Compara- Rights of the European Union. In spite of this, the tional Rights tive Discrepancies in European Law Swedish law implementing the directive has remained This paper focuses on the contemporary devel- In European law, an autonomous concept of court in force. The view of the Swedish government has opment of common law constitutional rights, with a has been developed in the case law of the CJEU and been that the law is consistent with EU law. However, particular emphasis on three main phases. The first ECtHR. This concept has a functional and a structural Swedish telecom companies have not shared this view. wave, which peaked in the 1990s, occurred in the con- side, combining aspects of adjudicative function and Directly after the above judgement, several compa- text of the run-up to the Human Rights Act 1998 and autonomous organisation with the general principles nies – among them Tele2 – stopped retaining data. In against the backdrop of the liberalisation of judicial of the right to a fair trial. In the Swedish legal order a June 2014, the Swedish Post and Telecom Authority review in the 1960s. The succeeding ‘trough’ is roughly very restricted formal approach has prevailed con- ordered Tele2 to resume data retention. The company represented by the first ten or so years the Human cerning the definition of what constitutes a court. Even appealed to the Administrative Court of Stockholm, Rights Act 1998 was in force. During that time human though this discrepancy does not directly affect the which rejected the appeal. Tele2 appealed again, this rights protection at English common law developed

Concurring panels 262 Concurring panels 263 in the shadow of the Convention. The second wave, consolidating previously dispersed and fragmented 160 coNSTITUTIONAL COURTS II able loyalty towards their colleagues and the court the current resurgence of common law constitutional judicial power. 2) through this process of enhancing as an institution. My presentation will focus on the rights, commenced roughly around the same time UK due process and consistency, unshackling local courts perspective of the civil tradition and address the fol- Supreme Court was created, and its aftermath still from the chain of corruption and political interests. 3) Participants Sajeda Hedaraly lowing questions: Why is the publication of dissenting produces powerful judgments today. I identify the con- placing meaningful checks on the exercise of power by Katalin Kelemen opinions prevalently allowed in constitutional courts, tributing factors for each of these phases and discuss the police and procuratorates through its supervision Ladislav Vyhnánek while it is banned in most ordinary courts? How do their respective constitutional implications. of lower courts’ performance. Thus Chinese courts Joshua Segev and separate opinions affect a court’s legitimacy? How seized an opportunity of judicial empowerment without Ariel Bendor do they contribute to a dialogue between courts in Stefan Schlegel: The fluidity of constitutions as contravening the core interests of the authoritarian Max Steuer and different jurisdictions in particular between national a function for the rank that courts appoint to in- Party-state. The arguments in this article, admittedly, Erik Lastic and international courts? These questions are dis- ternational treaties: A comparison of Germany, is subject to an important qualification: they need to Inger-Johanne Sand cussed in my forthcoming book Judicial dissent in Austria, and Switzerland be understood against the central tension at the heart Ulas Karan European constitutional courts: A comparative and This paper looks at the interrelation between of the authoritarian governance – the need to maintain Moderator Katalin Kelemen legal perspective (Routledge 2017) which aims to offer courts, the fluidity or reformability of constitutions and tight control of the society and the sought of legitimacy. Room 8A-4-35 a background for a larger debate on the issue in the the rank of international law relative to constitutional European context. law. It states the hypothesis that courts have to assign Fulvio Costantino: Venom, crisis and legal tradi- a higher rank to international law the more often a con- tions. Lessons from Italian court cases Sajeda Hedaraly: For a Bilingual Supreme Court Ladislav Vyhnánek: Politics and ideology at the stitution is amended, the more details it contains, and A growing concern about the economic situation is of Canada Czech Constitutional Court: Methodological the more their own possibilities of constitutional review having a huge impact on the behaviour of institutions, In Canada, the constitutional status of official problems are restricted. This is substantiated by a comparison including national courts. Traditional principles such languages is currently paradoxical. While the country This paper reflects the author’s research of extra- of the relevant jurisprudence of the highest courts of as retroactivity or recent ones such as the protection prides itself on bilingualism, the judges of its highest legal influences (in this case ideology and politics) on Germany, Austria, and Switzerland. It demonstrates of legitimate expectations, seem to face difficulties court are not expected to understand both French judicial decision-making at the Czech Constitutional how the Constitutional Court of Germany due to the in being protected. The examination of some cases and English. This paper argues that Supreme Court Court. While this kind of research has gradually be- comparatively erratic character of the Grundgesetz can be useful to verify if, with the crisis, there are real of Canada (SCC) judges should be required to be come an important part of the American scholarship (and due to its own strong role) is able to maintain that risks of undermining the foundation of the rule of law. bilingual and examines various legal and normative on courts European (especially CEE) courts are much the Grundgesetz ranks higher than international trea- paths that could ground this requirement. Parts I and less studied in this regard. This paper discusses the ties, higher even than the ECHR. Its own jurisprudence Daniella Lock: Judicial Decision-Making on II examine unwritten sources of constitutional law’ substance of the problem, but perhaps even more mitigates conflicts between the two sets of rules in Issues of National Security: Where UK Judges underlying principles and constitutional conventions, importantly it analyzes the methodological problems all but theoretical cases. The Swiss Federal Court in Depart from the Executive respectively – to support a criteria of bilingualism for surrounding the research of extralegal influences in contrast, not authorized to assess the constitutional- When it comes to decision-making on national SCC judges. While these sources of law may not be the Czech Republic (and more generally in CEE coun- ity of treaties and dealing with a constitution that is security issues, no consensus has yet been reached sufficient to ground this requirement today, they evolve tries). Specifically, the paper explores the possibility amended almost on a yearly basis, had no other choice by public lawyers as to the extent that judges should be over time and could eventually be used as a founda- of employing qualitative and quantitative empirical than to state that (some) treaties rank higher than even involved. Nevertheless, in recent years UK judges have tion for judicial bilingualism. Parts III and IV concern methods and possibility of “replicating” some Ameri- younger constitutional law. Austria, where, after a long been increasingly ruling on such issues. It is therefore the relationship between law and language. Part III can studies in the Czech context. It comes to a conclu- struggle, the ECHR was granted constitutional rank, pressing for lawyers to analyse closely how UK judges argues that decision-makers who interpret bilingual sion that while some inspiration is certainly possible, is an interesting case to further substantiate that it have approached decision-making in national security laws should understand both French and English be- a researcher has to be extremely cautious and taek is the reformability of the constitution and the role cases. Particularly as the debate on what role judges cause of their equal normative force. Part IV contends into account the vastly different cultural and consti- of constitutional review rather than a specific legal should play with regards to security matters can often that the law-making function of judges requires them tutional context. tradition that shapes the relation of a constitution and turn on assumptions regarding their competency to to be bilingual, given the importance of language in international law. make decisions in this area. This paper provides an the common law tradition. In sum, despite objections Joshua Segev and Ariel Bendor: The Judicial analysis of the legal reasoning in those cases where to bilingualism at the SCC, this requirement can rest Babysitter Michelle Miao: The empowerment of courts in judges have refused to uphold part or all of the UK on many legal foundations. In recent years, the constitutional discourse re- an authoritarian context: A decade of death Government’s decisions on a national security issue, garding the judicial role of the United States Supreme penalty review in China as a case study due to disagreement about the level of existing threat Katalin Kelemen: Judicial dissent in constitu- Court was shaped around the minimalist versus the The power of courts is central to the understand- to security, or the best way to deal with it. The analysis tional courts maximalist decision-making paradigms. While the pre- ing of political and legal life in democratic as well as consists in identifying key themes as to the reasoning Dissent in courts has always existed. It is natural cepts of these two paradigms are put in opposition to non-democratic settings. This article explains that, judges provide when disagreeing with the executive and healthy that judges disagree on legal issues of a one another (wide and deep as opposed to narrow and contrary to the conventional wisdom that authoritar- and what implications such reasoning may have for certain importance and difficulty. The question is if it shallow legal reasoning), they share a common domi- ian regimes normally curtail or even eradicate judicial the broader debate on the role of judges with respect is reasonable to conceal dissent. Judges undoubt- nator. Both the paradigms are decision-oriented: they power to strengthen their exclusive control over the to national security. This analysis is of relevance for edly discuss the cases among each other and influ- are focused on the features, elements and qualities society, the expansion of judicial autonomy and power the ICON conference as it will shed light on what kind ence one another’s opinion. These discussions are of the Courts’ decisions in constitutional cases i.e. the could be permitted or encouraged in non-democratic of contribution, if any, courts can make to decision- fundamental for reaching the right solution (if one right Justices’ use of reasons, rules, principles, precedents jurisdictions. Bureaucratic reconfiguration may permit making in an area which has not only long stood as solution exists). Even so, not every legal system allows and analogies. courts to acquire more autonomy and authority. A sa- a thorny issue for public lawyers, but is increasingly judges to explain their disagreement to the public in lient example is the recentralization of review power urgent to engage with as more and more controversial a separate opinion attached to the judgment of the Max Steuer and Erik Lastic: The Third Legisla- over capital trials in China in the past decade. Through laws are passed globally in the name of security: the court. Most constitutional courts do. Still, European tor? The Relationship between the Slovak Con- strengthened hierarchical judicial control, China’s recent U.S travel ban being just one example of many. constitutional judges are much more reluctant to write stitutional Court and the Slovak Parliament Supreme People’s Court (the SPC) has been able to separately than common law judges. Even when they The Slovak Constitutional Court (SCC) is commonly expand its power and strengthen its authority by 1) have the possibility to do so, they show consider- known as one of the Central European ‘guardians of

Concurring panels 264 Concurring panels 265 constitutionalism’ which successfully helped establish judgments delivered by the TCC (circa 1270) finding 161 legality and legitimate personnel and the technologies by which those acts democratic standards through the division of power at least one violation of rights and freedoms that set authority and representations are communicated. In observing and guarantees of fundamental rights. Yet there is a forth in the Constitution until the end of September backlash through a discursive prism and its media lack of research on its decision making since the ac- 2016 will be analysed. Following the analysis, along technologies, I will interrogate the scope of hegemonic cession of Slovakia to the European Union, and the dif- with the results of interviews with the applicants or their Participants Nimer Sultany strategies at play in legal practices and the represen- ferences between the ‘three CCs’ divided based on its attorneys, the approach of the relevant bodies, such Gordon Geoff tations of those practices, as well as the constitutive three presidents so far. This paper uses the analytical as administrative bodies, courts of first instances or Nico Krisch possibilities opened up by the confrontation between framework of the ‘negative’ and ‘positive’ legislator to appeal courts in relation to judgments will be dwelled Ayelet Berman exercises of authority representations of those exer- answer whether and why the SCC acted as a legislator upon. Lastly issues regarding the execution of the Fred Felix Zaumseil cises and reactions against either or both. Hegemonic during the three court terms. For this purpose, it uses judgments will put forth and propose a new policy and Zhai Xiaobo strategies here include aims to consolidate legal re- a new dataset (generated within the JUDICON project) legal framework. The overall objective of the paper is Tania Atilano gimes around particular values or in line with particular that allows to identify how the SCC has positioned to set forth the compliance concerning the judgments Moderator Nico Krisch value systems, often by recourse to universalistic or itself vis-á-vis changing legislative majorities between of TCC and propose an improvement for the existing Room 8A-4-47 naturalistic legal vocabularies. Constitutive possibili- 1993-2015 and whether there has been a period in framework. After conducting a research on judgments ties here include the constructive potential of backlash which it used its legislating capacities beyond the aver- and an assessment of the current organizational struc- as a form of productive contestation. Hegemonic and age standard. The analysis offers new findings about ture of the TCC, the results will be summarized in order Nimer Sultany: Revolution and legality in the constitutive possibilities may sometimes appear at each of the ‘three CCs’. During the latter, the SCC’s to identify de jure and de facto limitations concerning Arab Spring odds, and sometimes consonant with one another. decisions gradually shifted towards ones favorable the execution of judgments of the TCC, together with What is the effect of revolutions on the legal sys- to the parliamentary majority (2006-2010) and the providing a new policy and legal framework to enhance tem? Unlike Kelsenian emphasis on the rupture in Nico Krisch: Liquid Authority – Accountability head of state, with a few exceptions. Moreover, the monitoring of the execution of judgments to empower rules, and Dwokrinian emphasis on the continuity in and Law in Global Governance recent emptying out of the bench due to the conflict the effectiveness of the Court. the scheme of principles, this paper argues that the Most accounts of the law of international organiza- on the president’s competences in the appointment relation between legality and revolution can not be tions and of global governance are based on an idea procedures further exacerbated the resignation of the represented in a systematic way. The choice between of authority that follows an image of domestic ‘govern- majority on the legislating function of the SCC, and legal continuity and revolutionary rupture is a false ment’ but can hardly capture the particularities and gave rise to some arguably unconstitutional decision- binary because the law is not a coherent gapless sys- complexity of authority in the global sphere. This paper making practices. tem and thus there are enough resources in the law reconstructs this idea of ‘solid’ authority and juxta- for different parties to play it both ways. Taking the poses it with a notion of ‘liquid’ authority opening up a Inger-Johanne Sand: Constitutionalism and case of Egypt and Tunisian in the aftermath of the Arab continuum of different degrees of viscosity in between. Nordic Exceptionalism: The Function of the Spring, I argue that the law is incoherent and cannot The paper argues that the analysis of liquid authority, Norwegian Supreme Court when negotiating be reduced to a singular voice. I examine three lines which is often driven by informality and a multiplicity of public policies and constitutional rights of cases that seem to re-enact the binary opposition actors in the authority structure on a given issue, can Constitutions in an international context: The Func- between continuity and rupture as a choice between help us to better understand the specific challenges tion of the Norwegian Supreme Court when negotiat- judicial independence and judicial purification/ reform, for accountability, legitimacy, and the construction of ing public policies and constitutional rights and between criminality and exceptionality/ extra-le- legality we face in the global order. gality. My case study will the Egyptian and Tunisians Ulas Karan: Constitutional Complaint Proce- debates about reforming the judiciary after the Arab Ayelet Berman: Participation in Internationalm dure in Turkey: An Empirical Research on Suc- Spring, the trials of former regime officials and rulers Governance 2.0 cess and Failure (like Mubarak and Ben Ali), and the restitution of prop- Of ways to improve the democratic legitimacy Since 23 September 2012, individual applications erty from corrupt officials and crony capitalists that of international governance, opening-up the state- to the Turkish Constitutional Court (TCC) represent were associated with the regime or ruling families. In based international system to the participation of an additional remedy for the human rights violations all these cases, I argue, the assumption of a dichotomy non-state actors (e.g. civil society, private sector) has in Turkey and up until today, the TCC has delivered between rupture and continuity is misleading and hin- captured the imagination of scholars, activists and thousands of judgments and decisions. Although all ders an understanding of the choices at stake and the policy-makers alike: The Global Administrative Law the decisions and judgments are legally-binding, in effects of judicial choices. project stresses the importance of participation in in- contrast to European Court of Human Rights (ECtHR), ternational governance, as does the One World Trust’s there is no supervising mechanism for the judgments Gordon Geoff: Discourses of authority in the Pathways to Accountability project. The Sustainable of the TCC. Moreover, so far the adherence of the context of backlash: questions of performance Development Goals similarly promote participatory other courts and administrative organs are unknown. and perception governance, and these are just some of many ex- Although the TCC is responsible for monitoring the This paper joins the attention to backlash against amples. The idea that the democratic legitimacy of implementation of its judgments, it does not have international courts, with an inquiry into issues of per- international governance can be improved through any official statistics or any action in this regard. Con- formance and perception in international adjudication. stakeholder participation derives from ideas of na- sidering the ongoing lacunae, there is a need for an By backlash, I mean reactive opposition to expanding tional democracy, where participation – be it through analysis of the existing situation. Thus the influence authorities of international courts and tribunals. By elections or administrative processes such as consul- of the newly established procedure has not known performance, I mean the choices of vocabularies and tations or notice and comment-is of a central role. The yet. The proposed paper, which will encapsulate the arguments deployed in the exercise of authority by idea of participation in international governance has first research that focused on the effectiveness of the lawyers and judges. By perception, I mean the ways in not remained a theoretical exercise; rather, in prac- individual application procedure, will seek to explore which those performances are received. In addition I tice the evidence is compelling that in the past two the outcomes of judgments of the TCC on individual also examine the representation of discursive acts of decades international governance has undergone a applications. Within the scope of the paper, firstly all judges and lawyers by commentators and other court tremendous transformation, and non-state actors now

Concurring panels 266 Concurring panels 267 participate alongside governments in most interna- Bentham American judicial review is not a case of 162 constitutional Review II justification for the internationalization of the deci- tional institutions, be it in traditional IOs, or through LLSL but only an example of conjunctive sovereignty. sion fundamentals. The most important results will public-private partnerships. My argument in this paper Second, I agree with Hart that Bentham’s command undoubtedly be related to the role of contemporary is that while international governance is opening-up, theory cannot adequately explain the phenomenon of Participants Tom Hickey judicial review of legislation in safeguarding democ- and the voices supporting openness remain strong, LLSL, but I disagree with Hart’s concrete analysis and Guilherme Pena de Moraes racy protecting and promoting civil rights. the risks associated therewith are largely being ig- arguments. I will demonstrate that Bentham’s com- Eduardo Moreira nored: Participation by non-state actors introduces mand theory can sufficiently and even better explain Paula Pereira Eduardo Moreira: Unconstitutional State fo Affairs risks, such as imbalanced representation of interests the power-conferring constitutional provisions, and Daniel Bogéa The so-called Unconstitutional State of Affairs is and capture to special interests, potentially undermin- that Bentham’s idea that legality determines validity, Yen-tu Su a new model of judicial review with an increasing im- ing the public interest in the regulation of global public on principle, is correct. Third, I will argue that Bentham Moderator Tom Hickey portance in South America, which can be transplanted goods. Unregulated openness, I argue, has the poten- fully realizes that his command theory cannot explain Room 8B-4-03 to different constitututional issues. The lecture will tial to undermine the integrity of international gover- LLSL. Bentham then developed a theory of leges in highlight the main aspects of judcial power to rec- nance, such as when corporations use participation principem to explain LLSL and international law. I will ognize unconstituttional situational facts and affairs opportunities to influence international rule-making in offer a detailed account of Bentham’s theory of leges Tom Hickey: A republican alternative to ‘public not fixed by the executive and legislative brenches. a manner that benefits their commercial interests. At in principem, and argue that this theory is a better reason’ as justification for a more limited form The omission in this matter is long and continuosly the national level, many states have laws that manage explanation of LLSL than Hart’s theory of authorita- judicial review and in violation of fundamental rights. Colombian re- the risks associated with governments’ collaboration tive reason. The ‘public reason’ related defenses of judicial construction in affected areas by the Farcs (forced with private actors, such as lobbying or conflicts of review claim that the democratic ideals of reason- displacement of people landmark case) and brazilian interest laws. At the international level, such rules are Tania Atilano: The notion of Sovereignty in Mexi- giving reciprocity and consensus flourish in court set- prisional system (daily tragedy of prisions main debate) missing, and lawyers have not devoted enough at- co after Donald Trump’s election tings, and that judicial review is therefore legitimate. are two good exemples of unconstitutional state of tention to the development of rules for managing the Since President Donald Trump made announce- This scholarship has come up against various legiti- affairs. The requirements, objective goals and overall risks of participation. ments about building a wall between the United States macy or democracy-based objections, but the ones judicial dialogue with the others state fields in a long and Mexico President Peña Nieto as well as numerous that have really gained traction are those centering on conversation betweeen constitutional brenches and Fred Felix Zaumseil: The Authority of Legality authorities of the executive branch have appealed to the fact of disagreement (among judges, and indeed federal structure will be discused in details. The de- What role, if any, does the authority of legality play the defense of national sovereignty and national inter- generally) on the meaning and application of rights. velopments of all phases of judicial dialogue and it’s in the justification of authoritative demands made be- est. After signing the NAFTA and after Mexican for- In this paper I turn to the idea of ‘commonly avow- consequences to put an end to state omission will be tween free and equals who reasonably disagree about eign policy pursued to leave aside it’s “no intervention” able norms’ particularly as it has been developed in explained as such hard cases that demonstrate the what is good, just or right? Kant famously argued that principle reclaiming national sovereignty seemed to Philip Pettit’s recent work as analogous to, but as difficult and necessity to reach this new step in the individuals who are free and rational have a duty to be outdated. Nevertheless traditional notions of sov- critically distinctive from, that of ‘public reason’. The judicial review powers. enter a rightful condition by subjecting themselves to ereignty persisted in other constitutional and political distinctive feature is that, unlike public reason, it rec- a public legal order. Kant thought that in this rightful realms. For example defending “national sovereignty” ognizes and even thrives upon disagreement. In this Paula Pereira: Deliberation and voting in judicial condition individuals are bound to obey legal demands was the core argument in the Senate against the In- paper, I probe further than Pettit (and indeed disagree review. under (almost) all circumstances, even if, what the law ternational Criminal Court (ICC) jurisdiction by arguing with him insofar as he considers it) in applying this Constitutional Jurisdiction is seen as a coun- demands is unjust, wrong or imprudent. There is, thus, that the ICC was a threat to sovereignty. Therefore thinking to judicial review specifically. I argue that the termajoritarian mechanism for taking decisions on according to Kant, a general obligation to obey the law. appeals to national sovereignty are not a new phe- idea suggests these disagreement-on-rights based matters in which citizens consider it to be of utmost I will call this the authority of legality. Most contempo- nomenon but might indeed jeopardize the efforts of judicial review sceptics have good grounds (based importance for justice and fundamental rights. Our rary legal philosophers reject the Kantian argument absolute recognition of the ICC\’s jurisdiction as well on republican theory) for their scepticism. But I also practice of delegating certain issues to the Consti- of the authority of legality. For them, there is no gen- as the demands of civil society of excluding the military argue that, in railing against judicial power and laud- tutional Courts to make the final decision (at least at eral obligation to obey the law. Those who consider from combating organized crime. Appeals to Sover- ing legislative supremacy, they generally take their op- procedural level) reflects a mistrust in democratic de- themselves philosophical anarchist even claim that eignty might also lead to military control of the Mexican position too far: that they miss the democratic values cision-making in the political arena. But this mistrust the legal order can never have the authority it claims borders not only in a symbolical sense against Trump of judicial review, when it is understood in light of this that we have well seen things, is in the people and not to have. Others argue that the existence of an obliga- but foremost against the migration influx from Central republican idea. The paper considers the theoretical in the majority rule, since we have adopted this rule in tion to obey the law exists only if further conditions are America.The term sovereignty is therefore in constant question in light of the Charter of Fundamental Rights, the procedural field to solve the disagreements that fulfilled. My paper will revisit Kant´s basic argument reinterpretation and contrary to assumptions made in specifically. have arisen in the constitutional interpretation. In this and see how far it will carry. the early 90s about the disappearance of Sovereign way, how can we justify the practice of majority rule Statehood Trump’s policies might transform the notion Guilherme Pena de Moraes: Trends of Contem- in collegial judicial deliberation? Of course, the lack Zhai Xiaobo: Bentham and Legally Limited Gov- of Mexican sovereignty into a much more rigid and porary Judicial Review of Legislation of debate about the internal rules and the practical ernment nationalistic approach in the political and legal sense. This study aims to address the trends of judicial variables of deliberation of the courts, can promote Bentham and Legally Limited Government: An Ex- review of legislation, in view of contemporary issues or strongly hamper the legitimacy of a court. In this amination of Hart’s Interpretation and Criticism Hart of Constitutional Law. The scientifical investigation is context, the form of the deliberation on the constitu- takes American Judicial Review as the archetype of geared to detect the shared practices by the consti- tional interpretation in the courts appears as decisive. ‘legally limited supreme legislature’ [LLSL] and he tutional courts, meanwhile it establishes the points And this is where the object of this research resides. claims, first, that Bentham’s theory of law is a com- of divergence between those courts. In fact, the work We mean by this that the objective of this article is to mand theory; and, second, that Bentham’s command focuses on the area of concentration of the judicial investigate the institutional design of the collegiate theory cannot explain the phenomenon of LLSL. His review in democratic legal systems and, more par- body in order to verify if it is capable of providing the second claim assumes that American judicial review ticularly, in the line of research on the globalization constitutional normative function attributed to the is the archetype of LLSL. In this paper, I attempt a of the constitutional decision-making process. The Federal Supreme Court, that is, to define the consti- threefold task. First, I will present Bentham’s expla- research is organized into five chapters, each of them tutional interpretation. nation of American judicial review, and argue that for discussing the mentioned trends, such as the rational

Concurring panels 268 Concurring panels 269 Daniel Bogéa: Women in robes: gender diversity 163 The European Court sub-national, national, and international judicial, and 164 The Role of Courts and deliberative performance in constitutional of Human Rights: governmental bodies. The constitutional position of courts History and Evolution I the court is such that its relationship and dialogue with The article presents an argument for gender diver- certain European courts directly influences its relation- Participants Martin Kayser, Rahel Altmann sity in constitutional courts. In order to recommend ship with judicial and governmental bodies domesti- and Ardian Nikolla distinct institutional designs or greater political notice Participants Merris Amos cally. This paper presents original empirical research Amnon Reichman to the disproportionate distribution between men and Ed Bates that examines the influence of the jurisprudence of Pau Bossacoma women in higher positions of the judicial branch, it Jaclyn Paterson the European Court of Human Rights (‘ECtHR’) on the Eszter Bodnar is necessary to articulate theoretically the case for Sergey Khorunzhiy institutional relationships of the UK’s highest court in Moderator Rahel Altmann women in courts. I argue that the current scholarship Moderator Barbara Guastaferro and the transitional period from the Appellate Committee Room 8B-4-19 is too narrow, emphasizing either a symbolic argument Ed Bates of the House of Lords to the Supreme Court. The influ- that calls attention to the importance of women in Room 8B-4-09 ence of the ECtHR on (i) the administrative efficiency socially valued positions as part of an empowerment of the UK Supreme Court and the judgment style se- Martin Kayser, Rahel Altmann and Ardian Nikol- process, or a material argument that seeks to estab- lected (ii) the UK Supreme Court’s relationship with the la: Judges must be politically incorrect lish an empirical correlation between the presence of Merris Amos: The Value of the European Court other branches of state and (iii) the Supreme Court’s In an age of rising popularism, judges must be women and a positive decision-making agenda. I aim of Human Rights to the United Kingdom relationship with lower courts will be analysed. The pa- bolder than ever. It is their task to insist on fair pro- to present a third hypothesis, based on a delibera- National debates concerning the appropriate role of per concludes with an assessment of the significance cedures, no matter what politicians say. By perform- tive or procedural argument. I bring forward the case the European Court of Human Rights (ECtHR) in the Unit- of the constitutional change from the Appellate Com- ing judicial review of administrative action, their main for women in constitutional courts as a tool for the ed Kingdom (UK) recently intensified with the suggestion mittee of the House of Lords to the Supreme Court in task is to exercise concrete and often invisible power. improvement of the deliberative quality of these insti- by the current Government that the UK might leave the the UK, from the perspective of the court’s institutional Politicians, on the other hand, make laws, therefore tutions. I make use of the concept of social perspec- European Convention on Human Rights (ECHR) system. relationships, and proposes that the influence and exercising abstract and visible power. The constant tive, coined by Iris Young in the debate about electoral It has been argued that a British Bill of Rights, to replace statistical significance of the ECtHR jurisprudence is struggle over the definition of the use of power representation. One of the merits of the account is the current system of national human rights protection such that perhaps the most significant constitutional amounts to checks and balances. As the very notion to dislocate the focus from the presence of different provided by the Human Rights Act 1998, would provide power change in the UK would be the repeal of the of the separation of powers is contested by the many interests to the idea of increasing the starting points better protection than the ECtHR making its role in the Human Rights Act 1998. politicians, judges must be even firmer than before. in the deliberative process. Gender diversity promises national system redundant. Claiming that the ECtHR By counterbalancing politics, they must be politically to enrich the decision-making process itself, instead is legitimate and has an impact usually illustrated by Sergey Khorunzhiy: Evolutive interpretation of incorrect. of the results of the court’s deliberations per se. The the transformative power of judgments more than ten acts of the ECHR and law enforcement of the argument also prevents an essentialist answer and years’ old has not provided a convincing answer to this Constitutional Court of the Russian Federation Amnon Reichman: Judicial Institutional Capital – tackles the particularities associated with a consti- claim. In this paper, rather than legitimacy or impact, the Modern legal instruments are undergoing constant Preliminary Considerations tutional court vis-á-vis the other political branches. value of the ECtHR to the objective of protecting human change. The reason for this is the objective need to If judges are bound only by law, do they violate rights through law is assessed. Three different levels maintain the balance in the law, which provide effective their oath if they are influenced by concerns that in- Yen-tu Su: Judicial Review as Constitutional En- of value are identified from the relevant literature and protection of the legitimate interests of human and clude the potential reaction to their decision? Does gineering: A Structural Minimalist Approach then applied to the judgments of the Court concerning civil, and as a field of public and private law at the same judicial independence imply unlimited power to exer- When adjudicating cases concerning the sepa- the UK from 2011-2015 to determine what happens in time. As one of the methods to solve the problem of cise judicial discretion under the law? Students of the ration of powers and the law of democracy, a con- practice. It is concluded that given the UK Government’s ensuring and protecting the rights, subject to the bal- judicial craft have long realized the tension between stitutional court is bound to assume the role of a objective remains to protect human rights through law, ance of public and private interests is considered “evo- the logic of doctrine and the judicial application (or constitutional engineer. As intensified by the judicial whilst some types of value are now more relevant than lutive interpretation” of the ECHR. This interpretation misapplication) thereof. We realize that judges navi- constitutionalization of democratic politics, this func- others, overall the potential value of the Court to the UK is a manifestation of “judicial activism” which “decon- gate between applying established concepts, devel- tion of judicial review has generated great uneasiness in achieving this objective is still clearly evident. structs” the norms established earlier giving them a oping new ones, and creatively weaving old and new. among students of constitutional democracy, because new life. The article also analyzes the use of evolutive As of the rise of legal realism in the US and the Free it is widely held that judicial review is not an ideal forum Ed Bates: The ECHR’s status as a “constitu- interpretation in the field of private law public law, as Law movement in the Continent, analysis of judicial for democratic institutional design. While being sym- tional instrument of European public order”: well as in the activities of the specialized international performance has been sensitive not only to the inter- pathetic to the age-old plea for judicial self-restraint in implications for the Court’s legitimacy and its organizations (for example International Organization nal coherency of doctrine but also to the relationship so far as constitutional engineering is concerned, this mediation with national authorities. of Supreme Audit Institutions). In the study, the author between law and neighboring social domains. These paper criticizes the conventional judicial minimalism Nearly a quarter of a century ago (1994) the Euro- demonstrates the need to take into account unusual include the dialectic interaction between doctrine and for its theory averse and its reliance on judicial crafts- pean Court of Human Rights labelled the Convention for individual public sovereignty of the state, which is political power, between professional knowledge and manship, a source for judicial over-confidence. This a ‘constitutional instrument of European public order’. a must in the national legislation. This quality allows legal knowledge, between the economy and legal ide- paper proposes a structural minimalist approach that Since then the description has been employed on a us to identify the boundaries of the “evolutive inter- ology, between religion and legal culture and between seeks to integrate the insights of structuralism in the select number of high profile occasions. It evokes the pretation”, as well as to formulate its principles on the legal rhetoric and the gaze of the media – to name a law of democracy and the moral teachings of judicial ambitious claim that the Convention is a form of higher example of the practice of the Constitutional Court of few. This paper will present a structure within which minimalism. The constitutional court is further advised order, European constitutional law. But is that what the the Russian Federation. The practical significance of to situate judicial craft and judicial power: the insti- to create safe harbors for appropriate democratic Court actually means when it employs the phrase? the issues addressed is to define the balance between tutional capital available to courts, and to individual engineering, and practice minimalism while applying conventional and national legislation, search options judges. This paradigm conceptualizes – relying on the structural theories. Jaclyn Paterson: The European Court of Human for harmonization in order to flawless execution of aforementioned relationships between law and the Rights’ influence on the institutional relationships the ECHR judgments, as a guarantee of its credibility. neighboring systems – the increase and decrease of the UK Supreme Court: an empirical examination. of the credit and capital at the judicial disposal as a The UK Supreme Court occupies a unique consti- function of judicial strategies and available moves in tutional position in the UK, acting as a hub between particular cases.

Concurring panels 270 Concurring panels 271 Pau Bossacoma: Is the Judicial Branch a Good 165 The CEE Courts’ shaping of the CEE courts evoking examples from Polish, Rus- ting, which is conducive or destructive for the judicial Branch to Deal with Secession Cases? of international law – sian and other examined jurisdictions (for instance the engagement in the shaping of international legal or- In Spain, the political branches have pushed the the missed and lost oppor­ Natoniewski case). The positive bias of the contribution der. The examples will be drawn from the jurisdictions judicial branch, mainly the Constitutional Court, to tunities of the transnational will be balanced through evoking the cases where the examined in the course of the project: Polish, Czech, deal with many self-determination and secession judicial dialogue CEE courts (for political, legal or even technical) reasons Lithuanian, Ukrainian, and Russian. The contribution issues regarding the Basque and Catalan peoples. missed out on the opportunity to take the stance and will present the comparative legislative setting, organ- Against the criticism that those issues and disputes The aim of the panel is to consider the impact of the thus shape international legal norms. isation of the courts and the court systems (including are basically of political nature and they ought not to Central and Eastern European courts on international the best and worst practices identified), as well as be addressed by Courts, the Spanish legislative and law and on strengthening of the rule of law through Izabela Skomerska-Muchowska and Anna the role of the executive in the implementation of the executive branches, arguing that they are legal as international law in the region. The analysis presented Czaplińska: The exchanges of CEE Constitu- international courts’ or national courts’ judgments on much as a political, have responded judicializing even takes as a starting point the results of the EUROCORES tional Courts with the CJEU in the Era of Consti- international legal issues. The comparative findings more and increasing the enforcement powers of the research project 10-ECRP-02 International Law through tutional Pluralism will be set against the theoretical background of the Constitutional Court. In Canada, neither the Political the National Prism: the Impact of Judicial Dialogue. The The Constitutional Courts on the one hand play international law implementation measures, which branches nor the Judicial refused to take a substantial contributions build on the project results to identifiy suc- a special role as guardians of national constitutions differ across the traditional division of powers and role in the Quebec secession challenge. Whereas the cess stories in which the CEE courts contributed to the (based in all these countries on principles of democ- frequently are defined as worlds apart. Supreme Court found a balance in principle between development of international law through engagement racy and the rule of law). On the other hand they are unionist and secessionist claims, the Federal and the in an exchange with other national and international continuously confronted with other constitutional or- Quebec legislatures walked in opposite directions. The courts as well as missed opportunities for such occur- ders, and in particular that of the EU. The Constitutional paper offers some theoretical and practical reasons rences. In the analysis we take the regional perspec- Courts often draw inspirations from the case law of to defend that the judicial branch might be positioned tive considering the EU Member States (Poland, Czech foreign constitutional or other highest courts, espe- and equipped to respond secession claims in more Republic, Lithuania, and Hungary) alongside the third cially while adjudicating on human rights or EU law. The reasonable and balanced way than the more demo- countries (Russia and Ukraine) in order to demonstrate practice of the Constitutional Courts will be analysed cratically accountable branches. Yet, the paper also how the common legal heritage and varied levels of in the light of the concept of constitutional pluralism draw attention to several experiences where Courts engagement in the regional integration affected the to explore how the Courts percept themselves in the have not showed understanding or capacity to deal behaviour of the courts vis-à-vis international legal global community of judges, whether they exchange with those cases and some experiences where the problems. We examine the place, which is accorded legal arguments with other international and national political branches have been capable of reaching to international law in domestic legal systems of these courts and what are limits of comparative arguments sound and pragmatic solutions regarding secession Central and Eastern European States and seek to un- in constitutional issues. The particular position of the and self-determination claims. derstand which are the factors that facilitate and incen- CEE constitutional court will be specifically examined tivise or deter the participation of the CEE courts in the pointing to the areas of EU law under scrutiny and global international law shaping enterprise. the reactions of the courts mirroring their relatively Eszter Bodnar: Good administration of justice recent engagement in the European Union legal order. from a constitutional law perspective Participants Anna Wyrozumska In particular, we shall examine their capacity and will- While the notion ‘good governance’ is a broadly Izabela Skomerska-Muchowska ingness to take the CJEU’s indications and put them researched topic ‘good administration of justice’ is and Anna Czaplińska into question and under examination. rarely used in the legal scholarship and usually with dif- Magda Matusiak-Frącczak ferent meanings. Every component of the notion sets a Karolina Podstawa Magda Matusiak-Frącczak: The Dialogue be- new question: What is justice? What is administration Moderator Anna Wyrozumska and tween Selected CEE Courts and the ECtHR of justice? What makes the administration of justice Tímea Drinóczi The protection of human rights and the interactions ‘good’? The paper aims to answer these questions by Room 8B-4-33 with the ECtHR is the most important area of judicial dia- collecting and analysing the different ideas of good ad- logue. In the presentation the broad concept of dialogue ministration of justice. Although examining the aspects is adopted underling its different functions, especially of legal philosophy and legal dogmatic is inevitable, Anna Wyrozumska: The CEE Courts’ shaping of conflict resolution and classifies dialogue in regard to the paper focuses on the constitutional law perspec- international law -the missed and lost opportu- the accuracy of the referring court`s reasoning seeking tive by comparing national constitutions, international nities of the transnational judicial dialogue or failing to involve references to other courts` case human rights documents, and legal scholarship. The Traditionally one thinks of international law as of a law. The author recalls normative framework for dia- paper makes an attempt to create a general definition product of international tribunals detached from the logue with the ECtHR (with special emphasis on Poland) for good administration of justice, and also to clarify its daily realities of ordinary citizens. Yet, the application of and carefully studies the practice of CEE courts within relation with good governance, good administration, international law by such international tribunals consti- which he distinguishes proper, decorative (fake), failed rule of law, and fair trial. Finally, the paper tries to iden- tutes only a percentage of the use and development of or veiled dialogue. However, some cases he finds not to tify the possible elements of the good administration international legal norms. It is on the state level where be classifiable. The author provides a general assess- of justice and to identify the factors that can be used the most important developments occur, where the ment of the practice, explains reasons of occasional in measuring how ‘good’ administration of justice is. courts in their adjudication receive the doctrines of in- failures and suggests the instruments for improvement. ternational sister institutions, and respond to such dicta grounding the argumentation in specific national legal Karolina Podstawa: The legislative procedural traditions and needs of the society. This is where the role frameworks shaping transnational judicial dia- of CEE courts comes to the forefront. The presented logue on international law contribution focuses on the areas of international law The final contribution to the panel focuses on the that have been thoroughly addressed by the practice adjudication legislative, procedural and executive set-

Concurring panels 272 Concurring panels 273 166 dATA protection and CJEU is saying is that mass surveillance, corporate step further in this debate has taken place in France, further analyses recent developments such as the judicial activism in Europe: activities and transatlantic agreements on data flows where there is an ongoing legal battle between the invalidation of the Safe Harbor Agreement and the mind the gap all must be subject to fundamental rights. While this data protection authority and Google as the former adoption of a Privacy Shield. I argue that instead of line of cases is internally consistent and in line with the required that delisting decisions taken in an EU state a one-way street, usually conceptualized as the EU Some recent judgments of the Court of Justice have new General Data Protection Regulation, in this paper should be applied at the global level, thus raising a ratcheting up standards in the US, the influences be- marked a point of no return with respect to the con- we highlight the fundamental flaws that underline two very important dilemma with regards to effectiveness tween the two blocs are mutual. Such influences are stitutional protection of the right to privacy in Europe. of the three cases. The first relates to the Schrems of Internet law. Beyond widely debated freedom of conditioned by the receptivity and ability of domestic This judicial saga had a significant impact at least in case which, by invalidating a workable albeit a flawed expression and freedom of information implications, actors in both the US and the EU to translate, and two respects: on one hand it broadened the distance agreement, disregards the political reality of reaching the paper aims at exploring how the right to be for- often, adapt the “foreign” to their respective contexts. between the EU and the U.S. requiring to take steps political compromises on data transfers which are the gotten – or the right to erasure – presents a series of Instead of converging toward a uniform standard, the in order to reconcile the different views behind the backbone of both regions’ economies. The second uncertainties in terms of territorial scope that may lead different points of entry in the two federated systems respective legal orders; on the other one the judg- relates to Google Spain case which is based on the to future conflicts and contradictory interpretations contribute to the continuous development of two ments have proved to be influential even in the law- misguided idea of a hierarchy of fundamental rights. within the European Union itself. Moreover, the fact models of regulating commercial privacy that, thus making process. However, the efforts by the Court of We claim that, while the Court has valid and important that at a global level several states have decided to far, remain distinct. Justice have made it critical to reconcile the views points in both, its activist approach second-guesses adopt a European-inspired regime in this area, while encapsulated by the European and the U.S. models the Parliament and the Council, which now have the others have clearly rejected the enactment of it, makes Giulio Enea Vigevani: Privacy and data protec- of protection. Since this wave of judicial activism is task of preventing the political crisis of the kind that this debate particularly open and challenging for legal tion over the top: is there room for a freedom of likely to make Europe an isolated “fortress of privacy”, the judgments have engineered. actors beyond national and regional borders. speech exception? some questions need to be addressed. Is up to the The important decisions delivered by the Court Court of Justice to define the scope of the right to Joan Barata Mir: Territorial scope of the right to Thomas Wischmeyer: Why “Schrems” is a dead of Justice of the European Union over the last three privacy? Can the law making process be effective by be forgotten: European vs. Global end. The false premise of the CJEU’s transbor- years, particularly in the Digital Rights Ireland and neglecting the differences in the European and the The so-called right to be forgotten was first defined der data flow jurisprudence Tele2 Sverige cases, do probably amount to a reac- U.S. constitutional views of these rights? And finally, by a ruling of the European Court of Justice in 2014 in The CJEU’s landmark judgments in Schrems has tion to the overwhelming need of safeguarding na- since after the Schrems case it is likely that the legal the landmark case”Google Spain v.Agencia Española been praised by EU privacy specialists and vilified by tional security that led to the adoption of overbroad framework in force will regularly be challenged before de Proteccion de Datos and Mario Costejo”. This right U.S. national security lawyers. These reactions could and disproportionate measures. However, the Google the Court of Justice over the time, is it reasonable to was not previously established nor recognized as such suggest that the Court has hit a nerve. However, this Spain case suggests that, even to a certain degree, expect that this judicial saga is a never ending process by international, European or national standards, yet it paper argues that the attempts by privacy advocates significant implications may occur even with respect and ultimately beneficial from a global perspective? has been included in the provisions of the Regulation to use the CJEU as a tool for challenging the U.S. sur- to freedom of expression when it comes to protect- (EU) 2016/679 of the European Parliament and of the veillance architecture are daring and will ultimately let ing privacy in the context of the information society. It Participants Andrej Savin Council of 27 April 2016 on the protection of natural the Court bruised. To this end, it shows that the plaintiff should therefore be questioned whether the right to Joan Barata Mir persons with regard to the processing of personal data and the Court in Schrems have relied on an outdated free speech could still constitute, in the digital age, a Thomas Wischmeyer and on the free movement of such data as the “right to model of transborder data flow regulation, which is not value that counterweights the right to privacy and data Bilyana Petkova erasure”. This notion has been at the centre of several only ineffective in light of the current state of global for- protection, as it was in the ‘world of atoms’, or whether Giulio Enea Vigevani controversies among legal scholars, practitioners, ac- eign intelligence surveillance, but which might actually even the relationship between these rights may be Marco Bassini tivists and digital intermediaries. Most of the debates be counterproductive for reaching the Court’s goals, revisited in light of the decisions taken by the Court of Moderator Oreste Pollicino were triggered by the vague references made by the i.e. strengthening the level of protection for personal Justice and any possible future judgments of the same. Room 8B-4-43 European Court of Justice to the right to information data. The paper proposes to drop the idea of “safe as a legal element to be taken into account in the data spaces” and to strengthen instead the principle Marco Bassini: Discussant context of the application of the right to be forgotten, of organizational responsibility that is underlying the The paper will draw some conclusions on the Andrej Savin: CJEU Case-law on Data Protec- which seem not to properly consider, at least in an SCC and the BCR regimes. points discussed above. Particularly, it will be explored tion and the Extraterritorial Application of EU explicit way, the vast implications of the former within whether there is room for courts (most notably for the Privacy Laws on Companies With Business a democratic society. Moreover the decision imposes Bilyana Petkova: Domesticating the “Foreign” Court of Justice) to reduce the gap between Europe Models Based on Data Flows search engines‚ usually global private corporations – in Making Transatlantic Data Privacy Law and the United States and to facilitate a dialogue be- In its recent case law, the Court of Justice of the the duty to abandon their purported content-neutral Research shows that in the data privacy domain, tween the two sides of the Atlantic Ocean. European Union (CJEU) fundamentally changed the role to monitor content and make assessments with the regulation promoted by frontrunner states in European data protection landscape. The CJEU Digi- very serious implications for freedom of information federated systems such as the United States or the tal Rights Ireland Google Spain and Schrems judg- and freedom of the media. This being said, the rul- European Union generates races to the top, not to ments annulled the 2006 Data Retention Directive ing also raised important territorial issues. Right after the bottom. Institutional dynamics or the willingness introduced the right to be forgotten into EU law and the ruling the EU Article 29 Data Protection Working of major interstate companies to work with a single invalidated the EU-US Safe Harbour Agreement re- Party – an independent European advisory body on standard generally create opportunities for the federal spectively. While there are many points that connect data protection and privacy set up under Article 29 lawmaker to level up privacy protection. This article the cases, not least their CJEU-activist pro-funda- of Directive 95/46/EC – issued a series of guidelines uses federalism to explore whether a similar pattern of mental rights stance, what makes them particularly on the implementation of the ruling by the data pro- convergence (toward the higher regulatory standard) stand out more than anything else is their extrater- tection authorities within the EU. Among others one emerges when it comes to the international arena, or ritorial effect. The signal that CJEU is sending in each interesting element in this document – and probably whether we witness a more nuanced picture. I focus on case is that European data protection laws apply to the most contentious one – advices that in order for the interaction of the European Union with the United all situations where European citizens’ rights are af- EU law not to be circumvented, delisting should be States, looking at the migration of legal ideas across fected, irrespective of the place of establishment of applicable not only to EU domains but also to .com the (member) state jurisdictions with a focus on breach the company or the location of the equipment. What domains accessible from the European territory. A notification statutes and privacy officers. The article

Concurring panels 274 Concurring panels 275 167 The Future of Democracy The system of constitutional democracy (in which the within the judicial branch of government, different ele- Constitution is the supreme law and the Tribunal its ments of democracy will have to be identified and it guardian) is turning into parliamentary democracy (the will be shown how these elements are applied within Participants Stefanie Egidy decisive vote belongs to the parliamentary majority). judicial organs and which role freedom of expression Miroslaw Granat would play with regard to each of these elements. Jakob Hohnerlein Jakob Hohnerlein: Preserving democracy as a This discussion will be comparative in nature. Such Roxan Venter standard for judicial review of legislation a discussion may also assist young democracies in Moderator Stefanie Egidy A crucial point about the legitimacy of constitu- the organisation of their branches of government into Room 8B-4-49 tional and international courts reviewing legislation is vibrant democratic systems. that it depends on substantive standards, i.e. whether there are good reasons to restrict majorities. This may Stefanie Egidy: Beyond Judicial Control: Who be true for individual rights as values conflicting with Safeguards Democracy in Financial Crises? democracy. Another question is whether democracy The global financial crisis 2007-2009 prompted itself justifies certain restraints. Majority decisions are states to rescue systemically relevant banks. Most the best way to realize equal chances of citizens in a states decided to enact legislative programs deter- given time and place to influence politics. However, mining a general framework for bailing out troubled they restrict the options of future citizens to realize financial institutions. The legislatures provided large their political preferences. Many policies have factu- budgets and tasked the executive with implementing ally irreversible consequences. And present majorities these programs granting a wide margin of discretion. can make change more difficult by unfair election laws, However executive power often remained unchecked restrictions of political speech or legal entrenchment as legislative majorities voted against effective safe- of policies (i.e. constitutionalizing them or requiring guards that could ensure accountability and trans- super-laws to be reversed only by supermajorities). parency using emergency rhetoric to justify these Moreover, democratic decisions in one polity affect sweeping delegations of authority. This dynamic left those in others. Though not legally binding abroad, the courts in charge of responding to this threat to they may disable policy options there (e.g. tax havens). democracy, most prominently voiced by civil society’s Now influence of democratic decisions over others is Occupy Wall Street movement. Cases brought by in- ubiquitous and often inevitable. So should normative vestors and shareholders of financial institutions as theory be more modest, accepting that democracy is well as news organizations raised fundamental issues just about equal chances to influence politics under regarding the democratic nature of financial crisis the given conditions? However, the power-questioning management. However, despite historic examples of promise of political freedom should not be given up judicial intervention, courts decided not to engage with too quickly. This said, the issue is about identifying these questions, setting a dangerous precedent. Their constraints on majorities that prevent illegitimate decisions stand in stark contrast to the increasing role domination over future and foreign people. of courts and cannot be explained by the complexi- ties of financial crises. This presentation argues that Roxan Venter: The realisation of democracy and a society has to either provide the conditions neces- freedom of expression within the judicial au- sary to activate meaningful judicial engagement or thority: a comparative perspective establish and enforce alternative means of control to Freedom of expression forms an integral part of avoid a permanent shift of power within the democratic modern democracies. One of its primary functions is system of checks and balances. to support democracy by facilitating public participa- tion in governmental activities, enforcing public and Miroslaw Granat: From Constitutional Democra- political discourse and ensuring open and transpar- cy to Representative Democracy (Is it Possible ent government. Freedom of expression therefore to Live without a Constitutional Court?) also has a significant role to play within the various This paper discusses the uniqueness of ‘the Polish branches of government. This role is clearly visible in way’ to judicial review of the constitutionality of the law the activities of national legislative institutions, such and the role of the Constitutional Court role in the es- as a parliaments, or even within the executive branch tablishment of constitutional democracy in Poland. In both of which enjoy broad media coverage in most this light it discusses recent challenges to the Court’s modern states. The role of freedom of expression authority and their aftermath. Specifically, there has within the activities of the judicial branch, however, is been a return to disputes on who has the final word much less obvious. The purpose of this paper is there- in a democratic system and whether a constitutional fore to explore the less obvious branch of government court is needed. In consequence, the importance of when it comes to the use of freedom of expression, the principle of the democratic rule of law and the by discussing the different ways in which freedom principle of separation of powers has been under- of expression gives effect to democracy within the mined. Some point out that Tribunal has ‘communist’ context of the judicial authority. In order to determine origins. The shape of democracy in Poland is changing. how freedom of expression gives effect to democracy

Concurring panels 276 Concurring panels 277 168 S tructure of Dynamics of side either the overall direction of the court’s decision friday Panel Constitutional Courts making or its concrete outcomes, this paper offers an approach how through looking at the trajectories of decisions in individual cases the overall contribution 7 july 2017 session Participants Niels Petersen of constitutional courts to democracy can be deter- Max Steuer mined. Applying process tracing methodology on the 10:45 – 12:15 6 Maxim Tomoszek under-researched case of the Slovak Constitutional Ángel Aday Jiménez Alemán Court, the paper shows how its certain cases have Dana Burchardt been taken up by other political actors and the media Chien-Chih Lin and used to produce justifications for certain political Moderator Niels Petersen practices, some of which helped strengthen various Room 4B-2-22 elements of democracy while others have been prone to undermine it. While these justifications alone do not equal political decisions, they are the starting point Niels Petersen: Equal Protection Guarantees for a more nuanced determination of a constitutional and Judicial Self-Restraint ‘guardian’’ impact on democracy. The principle of equality before the law seems to be one of the fundamental demands of justice. Maxim Tomoszek: The Devil is in the Detail: Consequently, most human and fundamental rights What Enabled or Prevented Disempowerment of catalogues contain some sort of equal protection Constitutional Courts in Visegrad Countries? guarantee. However, spelling out what equality means The Visegrad Group, consisting of the Czech Re- in concrete cases is not straightforward. Laws distin- public, Hungary, Poland,and Slovakia, is an excellent guish necessarily. For this reason, courts usually adopt choice for comparative inquiry – the four countries a two-step test when they operationalize equal protec- have similar history, similar legal (and constitutional) tion guarantees. In a first step, they ask whether there traditions, but they also have a lot in common in the has been a distinction between two social groups. In a area of political system, society and culture. Taking into second step, they look for a justification for this distinc- account these similarities, it is remarkable, how differ- tion. When implementing this test, courts can exercise ent was the latest constitutional development in these more or less self-restraint. Most courts try to make countries. Recently, we have observed a phenomenon a difference between more and less problematical described as democratic backslide in great extent in distinctions. The proposed contribution will compare Hungary and later also Poland while the situation in the the equal protection jurisprudence of three different Czech Republic and Slovakia was much more stable. courts in this respect – the US Supreme Court, the Both in Poland and in Hungary, the central conflict in- European Court of Human Rights and the German volved appointment of judges of constitutional courts. Federal Constitutional Court. In a first step, it has a Most recently, there are signs of problems in this area rather descriptive aim. It analyses which social groups in Slovakia as well making the Czech Republic look al- are particularly protected the jurisprudence of the re- most surprisingly good in this respect. This significant spective courts. Can we find patterns, i.e. situations difference of outcomes in otherwise similar environ- in which equal protection guarantees are typically ap- ments asks for deeper analysis of the factors leading plied and in which they are not applied? In a second to different outcomes. The goal of the proposed pa- step, it tries to explain differences in the jurisprudence per is to compare the mechanism of appointment of of the three different courts. Are such differences due judges of constitutional courts in these countries their to a difference in the applied, or are there other factors functioning in reality and their connection to demo- that contribute to the observed case law? cratic backslide. Based on this, the paper will identify factors protecting the independence of constitutional Max Steuer: Determinants of the Guardians’ courts and strengthening their legitimacy and authority, Success or Failure: Identifying Influences of and factors which go in opposite direction. Constitutional Courts on Democracy Are constitutional courts conductive to demo- Ángel Aday Jiménez Alemán: From Neutral cratic regimes? Answers to this puzzle mostly work Powers to Active Ones? Constitutional Courts with concepts such as non-majoritarian institutions and their enforcement powers or counter-majoritarian difficulty as well as juristoc- The strengthening of the Spanish Constitutional racy (Hirschl 2004) or judicial activism (e.g. Alexander Court’s enforcement powers at the convoluted con- 2015). However, with rare exceptions (Kneip 2011) there text of the so-called Catalonian issue, has been con- have been no efforts to conceptualize how constitu- tested in multiple fora, even at the Constitutional Court. tional courts may influence democratic regimes. Ap- Along with the recognition of the Court’s decisions proaching the question both through focusing on the as executive titles, the Court is now able to directly outcomes of the court’s decision making and the deci- suspend authorities that are reluctant to enforce its sions made by its individual judges that may or may not resolutions. What is more, the Court can authorize

Concurring panels 278 Concurring panels 279 the National Government to implement any measure politics is so evident that it has been dubbed a govern- 169 The People and Dynamics of people, perhaps, cannot be trusted when the rights of needed in “epecially relevant constitutional situations”. ment of judges or “juristocracy”. Although the judicial- Constitutional Courts minorities are at stake. To assess these approaches, I The constitutional histories of the United States of ization of politics has swept the world, its development contrast court-led change in the US with the success- America, Austria, Germany, and Spain offer examples varies from one country to another. This paper focuses ful 2015 referendum to change the Irish Constitution of the public authorities’ reluctance to the enforce- on the judicialization of politics in the so-called Four Participants Jerfi Uzman to legalise same-sex marriage. Is there evidence from ment of the highest courts’ decisions. In spite of that Asian Tigers – that is Hong Kong, Singapore, South David Kenny Ireland that this process leads to better outcomes than fact, most constitutional courts do not exercise direct Korea, and Taiwan. I suggest that historical institution- Catherine Warin judicial innovation? Does Ireland show that fear and enforcement powers, and they are influential political alism better explains the nuanced differences of the Brian Christopher Jones distrust of referendums is misguided? I will suggest actors that achieve the general acceptance of their judicial expansion in the four jurisdictions. To specify, Ana Cannilla that each approach has drawbacks, and the fears that decisions. The objective of this contribution is trying the judicialization of politics is most intrusive in South Uri Zilbersheid attend each are real but often exaggerated. I argue to advance in this debate about the convenience of Korea, followed by Taiwan and Hong Kong, and Singa- Moderator David Kenny that there is no right answer; what is needed is a prag- granting enforcement powers to constitutional courts pore is least developed in this regard, notwithstanding Room 4B-2-34 matic approach to constitutional change and expan- a traditional minor topic but extremely relevant for the their similar economic achievements. South Korea sion of rights, acknowledging that the right approach practical development of the principle of separation and Taiwan are young and consolidated democra- will vary in different contexts. While court intervention of powers. Firstly, I will study several experiences from cies that adopt civil law legal system, a legacy of the Jerfi Uzman: Sense & Sensitivity: Courts and will sometimes be needed, the additional perceived the Comparative Constitutional Law. Then, I will revise Japan Empire. In contrast, Singapore and Hong Kong Constitutional Referendums legitimacy of democratic means makes it preferable the evolution of the Spanish model of constitutional are semi- or competitive authoritarian societies that Liberal democracies around the world struggle in many places for most issues of constitutional and justice, analyzing how the configuration of the Court were former British colonies immersed in common with the perceived gap between political elites and the social change. after this last reform departs from the original model law tradition. Despite similar political and institutional general public. With both the turbulent rise of popu- and could risk its legitimacy and its effectivity backgrounds, it is intriguing that the judicialization of lism and the increased concern for political legitimacy, Catherine Warin: Citizen participation in the politics is more intense in Korea than in Taiwan, in many legal systems witness the revival of civic par- post-Lisbon EU democracy: striking the bal- Dana Burchardt: Multilevel Judicial dialogue at Hong Kong than in Singapore. Furthermore, the com- ticipation initiatives. Prominent among those initia- ance between individual rights and political its limits? The challenges to the courts’ role as parison may shed light on several issues, such as legal tives is the use of referendums, particularly as a tool discretion mediators between the international and the transplantation, judicial reputation, and the concept of of constitutional innovation. Referendums are thought In a context of growing concern for ensuring demo- national East Asian constitutionalism. to contribute to the quality of democratic government cratic participation at the EU level, the role of the CJEU During the past decades, courts have been per- because they involve large numbers of citizens in po- is crucial in clarifying the relationship between the EU ceived of as mediators between different legal spaces. litical decision making. There is, at least, a general citizens and their institutions. The Court has dealt with Although this function has been taken up by interna- feeling that referendums have a huge impact in terms three main types of political participation rights: the tional and supranational courts as well the bulk of the of legitimacy. However, referendums may raise many right to vote at the elections for the European Parlia- mediatory initiative has been with the domestic courts. legal questions, either of a procedural or of a substan- ment; the right to petition; and the right to submit a Judicial dialogue has developed into a somewhat uni- tive nature. The rise to prominence of the referendum European Citizens’ Initiative. This contribution analyses lateral endeavor. As a result, judicial dialogue is facing as a political instrument is thus accompanied by in- the case law in these three areas and asks the fol- considerable challenges. Domestic courts have start- creased litigation before the courts. The (in)famous rul- lowing question: how far does the contribution of EU ed not to follow some of the decisions of international ing of the UK Supreme Court on the Brexit-referendum citizens to the exercice of public power reach? Or, how and supranational courts anymore. This paper claims serves as an exmple. How should courts evaluate the is the balance struck between the political participation that this has a dual cause. Firstly through judicial dia- sensitivities surrounding high profile litigation involving rights of individual citizens and the discretion tradition- logue courts have aimed to fill a gap: In the transna- constitutional referendums? Should popular majorities ally granted to institutional political actors? Three main tional sphere, legal regulation often does not fulfil its expressing themselves through a referendum be en- conclusions emerge from the analysis. Firstly, although coordinative function sufficiently. Courts had to step in titled to some kind of special deference? And to what political participation rights are enshrined in the Char- to fulfil this function. However, this is too much a task extent should courts be considered to enter the politi- ter, the Court does not review them according to the for courts alone. Insufficient and unbalanced coordina- cal realm when deciding cases involving referendums? rights/principles filter. Secondly, political participation tion can lead to a predominance of unilateral consider- In my paper, I use a comparative approach to build rights are indeed individual rights in the classic sense, ations. Secondly, as mediators between legal spaces, a tentative model of legitimacy for judicial review of i.e. correlatives of the obligations of public authorities. courts also fulfil the function of counterbalancing each both the outcome and the procedure of referendums. Thirdly, in performing these obligations the EU institu- other. Considering the strong position of international/ tions have discretion only with regard to the substantial supranational courts, judicial dialogue has been used David Kenny: Routes to expand rights: Courts outcome of the participation process. This means that as a means to empower domestic courts. However, Referendums and Same Sex Marriage in Ireland as the case law currently stands, political participation the more powerful the position of courts, the more and America rights do not reach as far as a right to a certain outcome likely conflicts between them. Conversely, when the In this paper, I examine the legalisation of same- of the decision-making process, but they are very real dialogue is led between unequal partners, this also sex marriage as a form of constitutional change, exam- procedural individual rights. presents a danger. If judicial dialogue is to be effective, ining whether this change should be brought about by supranational and international courts have to take courts or by democratic means. It examines the power Brian Christopher Jones: Constitutions and Bills domestic law and courts more seriously. of courts and the people and when each should prevail. of Rights: Invigorating or Placating Democracy? When the US Supreme Court invalidated State bans Champions of constitutions and bills of rights Chien-Chih Lin: The Wax and Wane of Judicial on same-sex marriage, some criticised this court-led regularly portray them as possessing significant, Power in the Four Asian Tigers change, driven by a judicial elite, as anti-democratic sometimes mysterious, powers. One common char- Recent decades have witnessed the rapid growth and potentially creating negative backlash. However, acterisation is that newly implemented constitutions of judicial power at the expense of the political branch- democratic referendums are under fire in the after- may invigorate a democracy, particularly at the ballot es since World War II. This trend of judicialization of math of Brexit and the rise of a new populism: the box. This paper challenges that notion. In particular, it

Concurring panels 280 Concurring panels 281 examines a number of jurisdictions that have recently activity. That is, they are entitled to act according to 170 I nternational Law and and normative vision of world order. Even if a state implemented constitutions and bill of rights, finding their “best judgement”, or “conscience” in enacting Conflict has the means to rearrange the international order by that in many of them voter turnout decreased after laws and furthering certain policies – all in the name creating new and proposing transformative interpre- passage, sometimes significantly. As the argument of public good. The supreme courts practically enjoy tations of existing rules, it may well conclude that its for a codified British constitution endures, the findings the same free mandate. I would suggest that furthering Participants Matthias Goldmann values are not best carried into practice by loosening of this paper demonstrate that those advocating for and even fortifying the welfare state should be the cri- Hent Kalmo constraints on other actors. such a device should be wary of touting its potentially terion in representative democracy, the dominant form Amarilla Kiss invigorating democratic effects. of modern democracy, according to which we should Aeyal Gross Amarilla Kiss: International courts and tribunals judge who really represents the people, the sovereign, Marina Aksenova in post-conflict situations: new trend in interna- Ana Cannilla: The Constitutional Paradox in the in all social and economic matters, the parliament or Moderator Matthias Goldmann tional law? Populist Crisis: An Answer from Popular Consti- the courts that should become much more active in Room 4B-2-58 In public international law there are different fields tutionalism the field of the general socioeconomic policy. when it comes to international courts and tribunals: In the judicial review of legislation arena, Popu- traditionally, the ICJ is in charge of the settlement of lar Constitutionalism has strongly criticized judicial Matthias Goldmann: Taking Hermeneutics Seri- international disputes, there are forums of interna- supremacy and has defended instead the idea of ously: Strategic and Non-Strategic Uses of In- tional criminal law, regional and specific courts, cases recovering the place of ‘the people themselves’ in ternational Soft Law by Domestic Courts for arbitration and administrative courts. The question constitutional decision-making processes. Although This paper analyzes the use of international soft of individual responsibility is not new in international Popular Constitutionalism has been widely debated, law by domestic courts. Based on an analysis of 70 law, still, it is a relatively young area where we just the question of what model of democracy better fits cases from 25 jurisdictions it argues that domestic start to collect experiences from the operation of the its principles has not been addressed. In this paper courts follow certain patterns in their approach to soft different courts and tribunals. This area is shaping I place Popular Constitutionalism within democratic law. In contrast to much of the prevailing literature dynamically concerning the number and the expand- theory, with special attention to agonistic models of about the behavior of courts, we find that these pat- ing role of these forums. ‘Judicialization’ became a democracy that – in contrast to deliberative models terns cannot be conclusively explained by the power trend in international law. This poses questions, if it of democracy – reject the ideal of achieving rational interests of courts, or power struggles within courts. leads to a certain fragmentation in international law, and universal consensus over our basic values and Rather, factors influencing this pattern include the re- as this area is forming faster than how fast we get the principles. I will draw on the work of Mouffe to explain silience of domestic democracy, the particular position results and could control this process. Though they the problems derived from the depoliticization of Con- of the court within the separation of powers, as well as are important in rebuilding the state, in the account- stitutional law, the demonization of popular majorities the subject matter of the decision and the communica- ability of individuals, and generally, in processing the and the sacralisation of counter-majoritarian institu- tive practices of the field. These factors lead to stra- past and strengthening the trust in justice institutions. tions. I will argue that Popular Constitutionalism is not tegic and non-strategic uses of soft law. We therefore However, they are criticized upon ignoring cultural di- a danger to democracy but that it actually reinforces claim that hermeneutics might matter more than much versity, and most of them has already experienced democracy from an agonistic approach, which be- of the empirical research about courts recognizes. legitimacy crisis. The attitude of states towards these comes particularly important once technocratic and Legal reasoning seems to have an independent influ- forums is mixed as the national implementation of the moral readings of the Constitutional order have proven ence on the outcome of a case. decisions reveal. The paper attempts to discover how unsuccessful for the safeguarding of rights and social international courts and tribunals contribute to peace cohesion. At times when popular sovereignty seems Hent Kalmo: Comparative International Law: in a post-conflict situation,and it also tries to reveal to be defended mainly by reactionaries it is vital that From Reception to Strategy how the phenomenon of ‘judicialization’ affects public critical scholars offer alternative progressive options Scholars have become increasingly aware that international law in general for the resolution of constitutional conflicts based on ‘international law is different in different places’. The the goods of popular sovereignty and popular partici- idea of reception has suggested the prevalent mode Aeyal Gross: The Writing on the Wall: The Courts pation for democracy. of thinking about this phenomenon. The key notion of Occupation underlying the various reception studies, expressed This paper discusses the role of the judiciary in Uri Zilbersheid: Who represents the people the in broad terms, is that the meaning of any text is not occupation, looking at the growing engagement of parliament or the supreme court/s constant, but rather varies with the different expecta- courts with occupation (International Court of Justice, Most of the democratic state constitutions de- tions brought to it. International law domestic lenses – European Court of Human Rights, and national courts clare that the people are the sovereign of the state. this expression perhaps best conveys the tenor of the especially the Israeli ones). It suggests that by looking In representative democracy both the parliament and present comparative research agenda. I will argue that at specific violations of the law of occupation, courts the supreme court/s may be seen, if not declared, as the idea of reception mistakenly suggests that lawyers take a “merely factual” approach to occupation, one democratic institutions representing the popular sov- in different countries approach international law differ- that regards the fact of occupation as given, and sug- ereignty. As the parliament and the supreme court ently because they understand, read or decode it dif- gests a shift to a normative approach. The normative often collide, is there a possibility to develop an ob- ferently. By inducing us to overemphasise the cognitive approach considers that occupation that violates the jective criterion that will enable us to judge which of side of the process of engaging with international law, basic principles of the law of occupation, is illegal. The both institutions represents the people in a certain the concept of reception obscures the strategic nature functional approach which complements it comes collision? It should be said that both institutions often of statements about law. The main thesis of this paper as an alternative to the binary debates on whether violate the rights and well-being of the sovereign, the is that arguments about the content of international occupation exists or not: e.g. is Gaza still occupied, people. Thus, in all the parliaments of the democratic law reveal less some culturally determined conception when did the occupation of Iraq end, etc. This paper countries, the elected members the representatives of a just world order than a concern to justify actions will focus drawing on my new book (The Writing on the or deputies, enjoy, often by a determination in the in a way that could be seen as universalist. We should Wall: Rethinking the International Law of Occupation, constitution, a free mandate in their parliamentary thus not assume a close correlation between power CUP, 2017) on how the normative and the functional

Concurring panels 282 Concurring panels 283 approach are complementary, and both are needed. 171 Analyzing Amendments: Canada, Colombia, Honduras, India, Ireland, Jamaica, the amendments attain a transformative character Judicial supervision today fails to address the core Constitutional Change, Japan, New Zealand, Saint Lucia, Taiwan, Turkey, the that has an impact on institutional structures as well questions of occupation when looking at specific Power, and Legitimacy United Kingdom, the United States, the Caribbean, as the nature and scope of fundamental rights. This questions of implantation or humanitarian and human and the European Union. article examines the legitimacy of such judiciary-led rights law, often ending up legitimizing the occupation Constitutional change occurs in a variety of ways. transformations and argue that such transformations as a whole and thus continued domination even if it Amending the written constitution is a formal way of Yaniv Roznai and Gary Jacobsohn: Constitu- often respond to legislative dysfunction. In this ar- fails to meet the standards of the basic principles of producing change. The impact of amendments how- tional Revolution ticle, I will discuss two scenarios that I argue represent the law of occupation. The paper will look at the pitfalls ever vary. While some amendments are declaratory, This paper will introduce an argument which is legislative dysfunction: first, when the legislature is in current judicial engagement with occupation, be it others are minor refinements of existing constitutional forthcoming as a book with Gary Jacobsohn, focus- unable to agree on crucial matters involving moral (or the Israeli one in the Occupied Palestinian Territory the arrangements, and still others are transformative. In ing on Constitutional Revolutions. The purpose of the religious) judgment and implicitly defer to the courts some instances, the amendments may be so repudia- book is to provide and invite theoretical and compar- the power to transform the constitution; and secondly, Marina Aksenova: Reinventing or Rediscovering? tory of the foundational character of a constitution that ative reflection on the concept of the constitutional when the legislature is unable to respond negatively Alternative Approaches to International Law they should not be considered amendments but as a revolution, an idea for which no canonical meaning to judicial transformations due to extant social and On 25 June 2016 Russia and China issued a joint form of dismemberment or a revolution. This panel exists. Are the characteristics of a constitutional revo- political conditions. I examine the extent to which such declaration reiterating their commitment to the prin- examines the processes, meanings, legality, and legiti- lution distinguished from the features commonly as- judiciary-led transformations are problematic within ciples of international law as they reflected in the UN macy of amending the constitutional text. It identifies sociated with the revolutions? Suppose a constitution the constraints of democratic constitutionalism. Charter and 1970 Declaration on Principles of Inter- factors that influence changes to the constitution and was amended in some paradigm shifting way, either national Law concerning Friendly Relations and Co- locate them within the broader political contexts. For formally or informally through far-reaching judicial in- Tom Ginsburg: Measuring Constitutional operation among States. The two states underlined instance, a particular amendment may have different terpretation or political behavior. Can the concept of Amendment the principles of sovereign equality, non-intervention outcomes depending on whether it is produced as part the constitutional revolution be made to accommodate While there is great need for scholars and consti- and peaceful resolution of disputes as a ‘cornerstone of a liberal democratic regime, an authoritarian regime, the consequences of these and other essentially non- tutional drafters to get a handle on the comparative for just and equitable international relations’ (cit). The or a transitionary one. In this regard, the papers will revolutionary developments? This, of course, would difficulty of constitutional amendment, there is little paper scrutinizes the recent trends in an attempt to also reflect upon the institutional interactions between be contrary to Hans Kelsens famous formulation that correlation among existing measures. In fact, measur- assess whether new approaches to international law is the courts and legislature in determining the meaning a revolution occurs – whenever the legal order of a ing constitutional change presents significant concep- a mere restatement of the principles enshrined in the and impact of constitutional amendments. community is nullified and replaced by a new order in tual challenges that have often been overlooked. After UN founding documents or whether we are observing an illegitimate way – not prescribed by the first legal reviewing the argument of Melton and Ginsburg (2015) a re-invention of international law by certain groups Participants Richard Albert order. (Hans Kelsen General Theory of Law and State.) this paper elaborates on how regime type (democracy states. The latter supposition would support the idea Yaniv Roznai and We claim that a constitutional revolution is defined as or authoritarian) interacts with the measures of diffi- of fragmentation of international law not only from a Gary Jacobsohn ‘a paradigmatic displacement in the conceptual prism culty, and affects the observed pattern of constitutional strictly legal perspective – as a plethora of conflicting Jaclyn L. Neo through which constitutionalism is experienced in a amendment in a given system. sources of law – but also from a socio-legal perspec- Tom Ginsburg given polity.’ This constitutional revolution will be ac- tive as a discipline harbouring conflicting narratives Marco Goldoni and companied by critical changes in constitutional identity Marco Goldoni and Michael A. Wilkinson: Con- and interpretations. Michael A. Wilkinson (although not every mutation in identity will entail a shift stitutional Change through the Material Look- Moderator Jaclyn L. Neo of sufficient magnitude to be considered revolutionary). ing Glass Room 7C-2-24 Additionally, the distinction between legal and illegal This paper introduces a new perspective on the transformations is not determinative in establishing the understanding of constitutional change and amend- existence of a constitutional revolution. Finally, a “con- ments. We intend to tackle this question through the Richard Albert: Constitutional Dismemberment stitutional moment” may or may not accompany the looking glass offered by the concept of the ‘material Some constitutional amendments are not amend- onset of a constitutional revolution. Those instances in constitution’. The basic intuition offered by the material ments at all. They are self-conscious efforts to repu- which a polity experiences a substantial reorientation in constitution is that constitutional change cannot be diate the essential characteristics of a constitution constitutional practice and understanding absent such read apart from societal dynamics: actually, the two and to destroy its foundations. And yet we commonly a moment are no less revolutionary for the incremental stand in an internal relation. From this fundamental identify transformative changes like these as con- aspect that marks their arrival. The paper will focus point we proceed, in the first section of the paper, to stitutional amendments no different from others. A on two case studies to contextualize the argument: sketch out the basic tenets of the idea of the material radically transformative change of this sort is not a Hungary and Israel. The Israeli example demonstrates constitution by contrasting this approach with other constitutional amendment. It is a constitutional dis- how even without a ‘constitutional moment’ or an extra- informal takes on constitutional transformation; then, memberment. A constitutional dismemberment is a constitutional invocation of constituent power, a con- in the second section, we draw a distinction between deliberate effort to disassemble one or more of the stitutional revolution may occur (mainly through the the types of conflict which might have an impact on constitution’s constituent parts, whether codified or judiciary). The Hungarian example demonstrates how its core ordering factors. This allows us to introduce a uncodified, without breaking the legal continuity that formal constitutional amendments may be used in or- criterion to detect cases where constituent power is is necessary if not useful for maintaining a stable polity. der to fundamentally transform the constitutional order. exercised and cases where the material constitution Dismemberment seeks to transform the identity, the itself is strengthened by constitutional change. Finally, fundamental values or the architecture of the constitu- Jaclyn L. Neo: Judiciary-Led Transformative in the third section we capitalise on these insights by tion. Importantly, a dismemberment need not neces- Amendments offering a view of the material reading of constitution- sarily weaken the democratic foundations of liberal Some amendments are clearly transformative, but al changes as part and parcel of ‘juristic knowledge’. constitutionalism; it can also strengthen them. In this not all of them. Some amendments may have been Given its relevance for understanding thorny issues paper, I introduce and theorize the phenomenon and intended to be declaratory, in that they merely seek around constitutional transformation, we conclude concept of constitutional dismemberment with refer- to clarify or entrench an existing understanding of the that such a material reading ought to be adopted by ence to jurisdictions around the world including Brazil, constitution. However, through judicial interpretation, constitutional lawyers and practitioners as well.

Concurring panels 284 Concurring panels 285 172 Inter-legality: beyond 173 judicial Politics in institutional behaviour that is not fulfilled in spite of Bilyana Petkova: Who is afraid of the right to conflicting legal orders Comparative Perspective 2. that behaviour being (part of) a key function of the privacy? institution charged with its fulfilment. Yet this rough The centrality of universal principles can vary The fragmentation of international law long gave rise The recent resurgence of right wing populism in Eu- definition leaves many questions open. Work on insti- across different constitutional orders: the examples to discussions about norm hierarchy and conflict rules. rope and the United States makes an old puzzle – that tutional economics and sociology provides an impor- of dignity in Germany or the First Amendment in the Increasingly, however, it is realised that solving con- of judicial legitimacy – come to the fore. Whereas the tant resource for better understanding institutional United States naturally spring to mind. In turn, courts flicts with such devices comes at a cost and, what offensive on courts in the U.S. poses the question of failure and what courts might or might not be able to have recently become one of the most prominent in- is more, that the legal landscape is undergoing si- defending rights against democracy as a real exigency, contribute when it happens. How best to measure stitutional actors in promoting the rights to privacy multaneous change. Normative conflicts tend to have courts also face the dilemma of having to protect de- institutional dysfunction or indeed even to provide and data protection in the European Union. Landmark ramifications for our understandings of key concepts mocracy itself against what could be perceived as an appropriate conceptual definition of that term is judgments like Digital Rights Ireland, Google Spain, such as ‘jurisdiction’ or ‘responsibility’. Inter-legality abuse of rights. Further, often based on history and a subject of some methodological debate in these and Schrems have had a reinforcing effect on one an- is a book project (editors Klabbers and Palombella) context, the judiciary gets to calibrate the centrality disciplines. Suggestions range from measuring insti- other. These rulings have also generated havoc, most aiming to take stock of such changes and think about of universal principles such as dignity, free speech tutional performance in terms of the state’s overall notably in the U.S., which differs substantially in its un- possible ways to help overcome some of the result- and privacy across different constitutional orders. Ul- goal of helping citizens to lead good lives (Sunstein derstanding of privacy as being balanced against other ing normative stalemates; this panel focuses on the timately, when delivering important but controversial 2015) to more institution-specific standards (Lewallen rights and values. Yet European constitutionalism itself latter part. decisions across that spectrum, the judges have to Theriault & Jones 2015). Social science work can also is still grappling with the different values and purposes think of protecting the authority of their courts. Com- be valuable in identifying categories of institutional that data privacy rights serve across multiple contexts Participants Mikael Rask Madsen mon criticisms of ‘judicial activism’ stretch from the failure such as design failures, institutional mismatch of EU law. Without clear distinction, under the rubric of Jan Klabbers somewhat out-dated but nonetheless repeatedly re- and obsolescence, adaptation failures or capture privacy, European judges are bundling together dignity, Gianluigi Palombella emerging argument of (quasi)-constitutional courts’ (Prakash & Potoski 2015), that can inform a legal con- self-realisation, autonomy, protections from the “chill- Moderator Sanne Taekema “counter-majoritarian difficulty” to the prevalence of ceptualization of that concept. ing effect” on the exercise of other freedoms, and data Room 7C-2-14 disagreement in plural societies concerning the sub- protection has also been successfully evoked before stance and scope of human rights. However, beyond Christoph Bezemek: The Best Joke About De- the Court of Justice of the European Union (CJEU) to conceptual attacks on (quasi)-constitutonal adjudi- mocracy: Abuse of Human Rights justify executive power secrecy. Further, the strong Mikael Rask Madsen: Inter-legality: beyond cation, it is increasingly common to find politicians When a collection of essays by Joseph Goebbels stance taken by the CJEU in this field contrasts with conflicting legal orders across the world that attack courts for decisions with was published in the mid 1930s, the introduction to its recent restraint in areas like EU anti-discrimination which they simply disagree. the chapter on democracy infamously stated that: “[f] law and citizenship where in past years the judges had Jan Klabbers: Inter-legality: beyond conflicting orever it will be among the best jokes about democ- traditionally taken the lead. The paper will analyse the legal orders Participants Michaela Hailbronner racy that it provided the means to its own destruc- case law of the CJEU in connection to the role played Christoph Bezemek tion to its mortal enemies.” Against the backdrop by the European Parliament and Commission, as well Gianluigi Palombella: Inter-legality: beyond Bilyana Petkova of this sardonic conclusion, modern human rights as the European Court of Human Rights in the area conflicting legal orders Scott Stephenson law seemed unwilling to accept the joke any longer. of data privacy in order to probe broader questions of Moderator Stephen Gardbaum Based on conceptions of “militant democracy” de- constitutional identity and judicial legitimacy. Room 7C-2-12 veloped by Karl Loewenstein and highlighted by Karl Popper “Abuse-Clauses” like Art 5 ICCPR and Art 17 Scott Stephenson: Political Backlash in Com- ECHR ensure that “nothing in [a human rights] Cov- parative Perspective Michaela Hailbronner: Courts and Institutional enant may be interpreted as implying for any group or From Australia and Indonesia to Russia and the Failure person any right to engage in any activity or perform United Kingdom it is increasingly common to find poli- It is a recurring argument in judicial decisions any act aimed at the destruction of any of the rights ticians across the world attack courts for decisions and academic writing in the Global South that when and freedoms recognized herein or at their limitation with which they disagree. Yet outside of the United other institutions fail to fulfill their role, courts may to a greater extent than is provided for”. The ECtHR, States our understanding of political backlash is still be allowed to do more or other things than usually. in particular, has generated a comprehensive (even in its infancy. Existing scholarly accounts tend to fall Yet this evolving understanding has so far never if diverse) body of case law denying protection to into one of two categories. The first is predominantly been analyzed more broadly and in any depth, even those who want to overcome the reinforcements descriptive and approaches the matter as one of con- though it stands in sharp contrast to traditional ideas of democracy by (ab)using liberty as a Trojan Horse. stitutional politics, suggesting that political backlash of separation of powers and the judicial role. This is Sometimes, however, as critics argue, the Court may occurs where judges make strategic miscalculations problematic because, properly applied and under- push beyond “the general purpose of Article 17 to exceeding the ‘tolerance interval’ that politicians grant stood, institutional failure might serve as a useful prevent totalitarian groups from exploiting in their courts before they challenge their decisions. The sec- judicial concept, not just in the Global South. How- own interests the principles enunciated by the Con- ond is predominantly normative and approaches the ever, without further analysis and qualifications, it also vention”; refusing from the outset to grant human matter as one of constitutional law, denouncing po- risks justifying judicial ‘activism’ in situations where rights protection to phenomena which rather are to litical backlash as a threat to the rule of law because it may at best be useless, and at worst contribute be considered disturbing foolish or simply wrong it has the potential to erode the independence and to causing additional harm. Whether institutional than abusive. This paper intends to take a closer impartiality of the judiciary. This paper will argue for a failure is indeed a legitimate basis for extraordinary look at the slippery slope of how much liberty is to third approach that conceptualises political backlash judicial actions depends on many factors, but first be granted to the enemies of liberty by analyzing as the meeting point of constitutional politics and con- and perhaps most importantly on what qualifies as the structure of abuse clauses, examining their ap- stitutional law. It will suggest that it is not possible to institutional failure in the sense relevant to courts. plication and assessing the danger attached to their provide an accurate account of political backlash that As a tentative definition, I suggest that institutional frequent invocation. strips away one side of the law/politics divide because failure requires 1. a legitimate expectation of specific the phenomenon is the pursuit of legal contestation

Concurring panels 286 Concurring panels 287 through political means. It occurs where politicians 174 Social Welfare Walter F. Carnota: Social Adjudication at Its 175 T HE JUDGE AND POWER: attempt to challenge judicial decisions using mecha- Best: The tale of the Argentine Social Security EMPIRICAL REVELATIONS OF nisms that are recognised in politics, but not in law, Court of Appeals JUDICIAL PRACTICE such as court packing, budget stripping, jurisdiction Participants Stefano Civitarese and In 1987, the Argentine Congress created the Na- removal and public denouncements. The law-meets- Simon Halliday tional Social Security Court of Appeals to sort out pen- This panel seeks to deepen understanding of the ex- politics approach demonstrates, first, that normative Dragica Vujadinovic sioners’ cost-of-adjustment claims and other judicial ercise of public power by the courts and judges by assessments of political backlash are not straightfor- Walter F. Carnota measures directed against Social Security agencies. bringing together scholars who have undertaken em- ward exercises in denouncement and, second, that Matteo De Nes In 1989, the new Court was installed. Initially, it closely pirical research into different facets of judicial practice. descriptive accounts cannot be reduced to assess- Moderator Matteo De Nes followed the steps of its predecessor, the National The panel will explore questions around the interplay ments of tolerance intervals. Room 7C-2-02 Labor Court of Appeals. But judicialization of Social of judicial philosophies, personalities, dynamics and Security claims is quite different from employer-em- relationships as influences upon the decision-making ployee relationships. It basically entails oversight of process. In turn, what is the influence of process on Stefano Civitarese and Simon Halliday: Consti- huge administrative bureaucracies and ponder bud- the outcomes of judicial decision-making? At a more tutional Law and Social Welfare after the Eco- getary effects in the meanwhile. The Social Security fundamental level, how does institutional design – nomic Crisis Court became federal in 1995. That year Congress also including for example, the design of appointments This paper concerns developments in social wel- enacted legislation making lawsuits more difficult for processes, disciplinary processes, the use of acting fare policies within Europe following the great financial pensioners. Procedure was streamlined so as to give judges – affect the judges’ capacity to fulfill their func- crisis that began in 2008. This focus on the new “age of administrators an upper hand. Finally, the Supreme tions? This panel thus seeks to address the question of austerity” as it is often termed requires little justification. Court which began to take shape in 2003 was instru- the conditions under which courts succeed in achiev- The combined impact of economic recession and the mental in crafting new judicial decisions in this area. ing the exercise of public power with independence, fiscal austerity that followed in its wake have had pro- impartiality and integrity. found impacts across many aspects of many societies. Matteo De Nes: Balancing Fundamental Rights In turn of course such deep and wide impacts prompt and Budgetary Needs: The Jurisprudence of Participants Mathilde Cohen academic attention. The implications of the great finan- the Italian Constitutional Court Gabrielle Appleby, Suzanne Le cial crisis have already been subject to a vast amount of Within the current economic crisis of the Eurozone, Mire, Andrew Lynch and Brian scholarly analysis. Our ambition however is to examine Constitutional Courts have played a pivotal role, since Opeskin the topic from a distinctly legal perspective. Thus we not they have been called to deal with clashes between Hugh Corder and only seek to deepen our understanding of the impact budgetary needs and fundamental constitutional Cora Hoexter of the economic crisis on social welfare programmes rights. As is well known, macroeconomic choices are Jula Hughes and but also to explore the capacity of constitutional law firstly negotiated between the Executives of Member Philip Bryden QC rights and legal values to shape or even inhibit policy States and European Union institutions; from there, Alan Paterson developments. We adopt a case study approach to the fiscal and financial policies are implemented by do- Limor Zer-Gutman and pursuit of our research aims by analysing and discuss- mestic budgetary law adopted on the basis of such Karni Perlman ing five national case studies – France, Germany, Italy, negotiations. Constitutional Courts come in at the end Moderator H. P. Lee Spain, and the UK – and focusing on the attempts to use of the chain, as they are often asked to assess whether Room 8A-2-17 fundamental public law rights to challenge the content the adopted policies comply with fundamental rights of such policy developments and the responses of the granted by national Constitutions. Consequently, at courts to these test cases. Our understanding is that least three problems arise: 1) whether and how these Mathilde Cohen: Qualitative Research Methods irrespective of differing legal traditions regarding the Courts have legitimate authority to scrutinize highly and Judicial Practice – Notes from a French constitutional status of social rights and differing social political choices in economic ,fiscal and financial mat- Field Study welfare regimes the courts have been restricting their ters; 2) how the Courts can obtain sufficient informa- How can one study and make sense of invisible – capacity to rule on the merits of social welfare policy. tion related to these policies and their potential con- or less immediately visible – aspects of judicial work, sequences on fundamental rights; 3) determining the such as a court’s decision-making processes, its Dragica Vujadinovic: Causes of the Current EU boundaries of the Courts’ power of scrutiny in these internal organizational culture, or some of its hiring Crisis and Ways Out – Viewed upon the Welfare cases. This presentation is aimed at investigating practices? Qualitative research methods, including Lenses these three theoretical questions in the context of the observing hearings and behind-the-scene judicial The main idea of this presentation is that the neo- most recent jurisprudence of the Italian Constitutional work as well as interviewing judges and their support liberal turn in the development of liberal capitalism did Court (ICC). Indeed, after earlier self-restrained behav- staff is an emerging method in the field of legal stud- cause the current global and Euro zone crisis, that aus- ior, the ICC has progressively expanded its scrutiny ies, raising the question of its value and adequacy to terity measures represent the neoliberal mechanism of fiscal and financial policies, conferring an increas- the field. Which research questions lend themselves which cannot solve the crisis, that the welfare turn, e.g. ing weight upon fundamental rights when examining to a qualitative approach? What methodological new forms of welfare economic and political strate- budgetary actions and fiscal policies. considerations should be taken into account? I will gies of development are necessary for overcoming elaborate on these issues based on my own research the crisis, for diminishing overextended inequalities projects, in particular a field study on judicial diver- at the global, regional and nation-state levels, and for sity in France – a country that prohibits the collection finding new balances between economic efficiency of racial and ethnic data, ruling out any quantitative and free market mechanisms, on the one hand, and analysis. I will discuss the questions of access (which welfare system human rights protection, and right to recruitment strategies can a researcher use to inter- a dissent life for each individual, on another. view judges given that random sampling is usually out

Concurring panels 288 Concurring panels 289 of the question?), of representativeness (how many lawfare compromises the courts, threatens the sepa- dominate the earlier stages – though not as counsel 176 T HE CHANGING LANDSCAPE respondents are “sufficient” to make a claim?), and ration of powers, and places strain on the relationship may wish. The new courts’ mantra includes increas- OF RUSSIAN CONSTITUTIONAL of identity interplay (does the researcher’s identity between the judiciary and the other branches. ing transparency but this sits uneasily with studies of JUSTICE: NEW ACTORS, NEW and self-presentation affect the nature of the data psychological values and the refusal to have a reg- PROCEDURES, NEW PRACTICES collected?). Jula Hughes and Philip Bryden QC: What does ister of interests. This paper explores the changing empirical research on the Canadian judiciary relationships between the court and its publics – as The Russian system of constitutional justice has been Gabrielle Appleby, Suzanne Le Mire, Andrew tell us about the judicial exercise of power? mediated through the influence of its leaders, and functioning for more than 25 years now and should guar- Lynch and Brian Opeskin: Contemporary Chal- Our empirical study of the views of Canadian Pro- explores the likely impact of the new judicial appoint- antee the realization of basic rights, the rule of law and, lenges Facing the Australian Judiciary vincial Court judges shows a surprising diversity of ment procedures on the composition of the court in last but not least, market economy. But how effective is The modern Australian judiciary faces a number of opinion on reasonably common, but analytically mar- the next few years. it if one takes at from the outside and within the context contemporary challenges. The structures that regulate ginal, scenarios involving judicial disqualification. This of the Russian political system? This question was ad- and support judges tend to emphasise the traditional is notable because the issues of judicial impartiality Limor Zer-Gutman and Karni Perlman: Lawyer dressed by a group of litigators of the Russian Institute judicial values of independence impartiality and rule and disqualification are intricately linked to the cred- Perceptions of Judicial Techniques for Law and Public Policy in the course of their practice- of law. However, reform and introduction of regulatory ibility of the justice system and because they have The examination of settlement-oriented judicial oriented research project focused on the mobilization and support structures that prioritize more contem- profound constitutional resonance. The results of our techniques as perceived by lawyers is a new research of constitutional justice in Russia by strengthening the porary judicial values such as diversity, transparency, research suggest that, in an area in which the relevant direction. Lawyers frequently participate in the judicial participation of civil society organizations in strategic accountability and efficiency have been more difficult legal principles are open-textured and guidance from process as “repeat players” and are exposed to the ju- litigation. Below are abstracts of four presentations, to achieve. This paper reports on a survey of Australian case law is highly fact-specific, the exercise of judicial dicial techniques applied in the context of Settlement prepared by the Institute’s scholars within this project. judicial officers (n=142) from across the different Aus- power is a highly individualized one. Judges not only Judging. The new study will examine the formation of tralian jurisdictions. Participants were asked what they disagree on outcome, but they also display a surprising lawyers’ attitudes regarding the fairness of the judi- Participants Grigory Vaypan considered to be the most pressing challenges that resistance to consultation and to inviting submissions cial proceeding. Such attitudes can either establish Olga Podoplelova face the various levels of the Australian judiciary and from counsel. In this paper, we argue that, at least in or undermine lawyers trust and satisfaction with the Natalia Sekretaryeva whether the current regulatory and support environ- Canada, notions of judicial power at the level of courts judiciary. The study will be conducted by asking law- Dimitriy Mednikov ment achieves international best practice. The data of first instance should be viewed through the lens yers to respond to questionnaires. The study will help Moderator Aleksander Blankenagel provide a nuanced picture of the state of the Mod- of the power of individual judges. This has important identify the various judicial techniques implemented Room 8B-2-03 ern Australian judiciary as it appears to those within it. implications for the judicial selection process. The by judges striving to achieve settlements in proceed- They facilitate an understanding of the degree to which current criteria for appointing judges are focused on ings over which they preside, and one of its innovative judicial officers are satisfied with the current regula- controlling for temperament and work ethic. They de- aspects is that these techniques will be identified and Grigory Vaypan: Amici Curiae before the Rus- tory framework, and, where they are dissatisfied, the emphasize subject matter expertise and skills related examined from the perspective of lawyers who partici- sian Constitutional Court: Assistants or Chal- nature of their disquiet. This work has the potential to to conducting effective and fair hearings. Suggestions pate in such proceedings as representatives of the dis- lengers? illuminate the extent to which reform of the judiciary for improving selection criteria have been focused puting parties. The study addresses an international Since 2013, amicus curiae submissions by NGOs is both desirable and desired. on the importance of diversity on the bench. If we are phenomenon, for the shift to collaborative judging is and independent human rights experts have become correct in suggesting an individualized focus, we may taking place in all countries where the Anglo-American a practice firmly embedded into the Russian Consti- Hugh Corder and Cora Hoexter: Navigating the have to revisit how diversification might impact the judicial method is prevalent. The results of the study tutional Court proceedings. For the past four years Straits of Deference: ‘Lawfare’ in South Africa judicial exercise of power. In particular, it is not obvious will therefore be relevant to many additional countries the Constitutional Court has been accepting inde- and its Implications for the Judiciary that judges at the trial level influence the decisions of besides Israel. pendent amici curiae briefs into case files, soliciting Lawfare’ is not a new phenomenon in South Af- one another other than through mechanisms of pub- amici curiae briefs from NGOs, and – in one notable rica, for judicial review has always been a prominent lished jurisprudence. It also appears that the judiciary case – inviting an NGO to argue as amicus curiae at method of holding the government to account even in is only marginally impacted by national standards of a Court’s hearing. Yet, despite this trend, there are disputes of a distinctly political nature. Before the in- appointment, which may explain the increasingly cen- fundamental differences in the way various actors in troduction of constitutional democracy in 1994, there tral role that is placed on judicial education, particularly the Russian constitutional justice system perceive were barely any political safeguards against oppres- social context education. the role of independent amici curiae. Are they simply sive legislative and executive action, and the courts experts assisting the Court? Or are they (also) public generally presented the citizen’s only hope (though of- Alan Paterson: The Supreme Court Decision- advocates who have their own agenda? Is the Court ten a feeble one) of having individual rights protected Making in the United Kingdom – Eleven indi- ready to listen to amici’s criticism of its judgments? or constitutional obligations upheld. That is no longer viduals or a Team? And what is the future for the institution of amicus the position, at least in theory, since the Constitu- Building on his publication – Final Judgment: The curiae at the Russian Constitutional Court and (pos- tion of the Republic of South Africa, 1996, includes Last Law Lords and the Supreme Court ( Hart Publish- sibly) other Russian courts? a wide range of safeguards against unconstitutional ing 2013 ) Alan Paterson will show how the Supreme conduct on the part of the legislature and executive. Court has developed a different decision-making Olga Podoplelova: Strategic Litigation Before In particular, the Chapter 9 institutions supporting model from that which prevailed in the House of the Russian Constitutional Court: Cases, Chal- constitutional democracy may be regarded as the Lords. Although their decisions continue to be signifi- lenges, Trends core of a growing integrity system. However, contrary cantly influenced by their dialogues with counsel, with In Russia, strategic litigation has started to acquire to expectations, lawfare has not diminished as a result themselves, with academics, with judicial assistants, recognition as a powerful tool for human rights promo- but has actually been increasing in recent years. This with lower courts and with Parliament, the balance tion and protection. Within the national judicial system, paper discusses the increasing resort to litigation in between these dialogues has changed, as has the it is the RCC that constitutes the most effective forum contentious political matters with reference to several Court’s approach to judgment writing. Yet if email has for advancing human rights through strategic litigation examples, explaining the factors that have encour- transformed the post hearing dynamic with regard by civil society groups. This paper reflects on opportu- aged the trend in this country. It goes on to show how the composition of judgments, orality continues to nities, restrictions, and risks that applicants, lawyers,

Concurring panels 290 Concurring panels 291 and NGOs are faced with when engaging in strategic 177 The Transformation of sional values for judges (moral dimension) (Mak); 2) cesses that lie at the heart of the judicial function. One constitutional litigation and when being confronted Judicial Identity: Mechanisms judicial ideologies in the interpretation of legal rules aspect of this concerns the citation of foreign law in with litigation outcomes. Particular attention is given and Impacts of Transnational and concepts for European cases (legal dimension) constitutional cases. The metaphor of judicial dialogue to assessing developments in admissibility criteria for Judicial Communication (Graaf); and 3) leadership in judging EU law cases (in- has been employed to understand and guide this prac- filing a strategic complaint, to factors influencing the stitutional dimension) (Jackson). The papers for this tice. However, as a concept, judicial dialogue fails to decision-making process, and to patterns of using In the globalised legal context, the role and practices panel elaborate the concept of ‘judicial culture’ for capture the most salient features of judicial practice. the judgments of the RCC for human rights protection. of national (highest) courts are changing under the ef- each of these three dimension, in this way setting the In its most ordinary meaning, judicial dialogue is not an fects of systemic changes – such as the proliferation of scene for the project’s study of the development of account of current practice but rather a call for radical Natalia Sekretaryeva: Russian Constitutional international law and the development of regional legal the judicial role and judicial practices in the evolving globalization of the judicial role. In this paper, I argue Court’s role in the implementation of the Euro- integration, e.g. in Europe – and practical changes European legal context. that such a development would transform judicial iden- pean Court of Human Rights judgments: some such as the increase of transnational judicial networks tity in the most fundamental way. Judges would cease lessons of the judgment in the N.V. Korolev and and the facilitation of access to comparative sources Klodian Rado: Transnational Judicial Communi- to be judges since their core task of deciding the cas- V.V. Koroleva v. Russia case through online databases. These changes have affect- cation and the Supreme Court of Canada es before them would have become subservient to This paper looks at some recent Russian Constitu- ed the role and practices of courts in North-America Since 1997 when the notion of “dialogue” between their new mission of developing transnational judicial tional Court judgments, particularly, the 2016 Korolev and in Europe in two ways. In a formal or juridical sense, the Supreme Court of Canada (SCC) and the other networks. Resistance of this development requires and Koroleva case based on the European Court of courts increasingly refer to international and compara- branches of government on interpreting the Cana- a better understanding of the ways in which foreign Human Right’s (ECtHR) Grand Chamber Khoroshenko tive legal sources; whereas in an informal or social dian Charter of Rights and Freedoms and generally law can truly enrich the decision-making of national v. Russia judgment, in order to answer the question sense judges from different jurisdictions increasingly the Constitution, entered the Canadian constitu- courts without undermining the core responsibility of whether current Russian Constitutional Court case law meet and discuss about issues of common interest. tional law mainstream, it has remained central. The judges to decide disputes according to national law. implementing the ECtHR judgments constitutes an The papers in this panel explore aspects of the de- “dialogue” metaphor occupied not just the academic effective tool in the latter’s implementation process. velopment of judicial dialogue and its impacts in the arena but also the Canadian judiciary legislature, and Moreover, the paper will also reflect upon whether contexts of the Supreme Court of Canada (SCC) one of even the realm of politics. In this paper, I will address and to what extent the Russian Constitutional Court the most active and respected courts in transnational the transnational judicial dialogue with foreign courts judgment in question contributes to the possibility of judicial communication; and the European Union (EU) and judges. Many foreign and Canadian scholars re-establishing a constructive dialogue between the where the development of judicial cooperation cre- judges, and even the media, consider the SCC one two judicial bodies in the future. Particularly, it will be ates top-down and bottom-up incentives for judicial of the most important actors in the global community argued that the adoption of a Constitutional Court judg- engagement in transnational exchanges. The third of courts. Particularly after the implementation of the ment declaring a law earlier found by the ECtHR to be in paper critically assesses the appropriateness of the Charter, SCC has been an active participator in the violation of the European Convention on Human Rights judicial dialogue metaphor in the context of references global conversation on human rights and other im- (ECHR) unconstitutional does not necessarily mean that to foreign law. portant constitutional issues, by using both juridical such a judgment represents a successful and effective and social tools. The aim of this paper is twofold. On implementation of the ECtHR judgments on the na- Participants Elaine Mak, Niels Graaf the one hand, it seeks to shed light on the dialogue of tional level. In fact, such national constitutional bodies’ and Erin Jackson the SCC and its judges with other foreign and inter- practice might have negative consequences and result Klodian Rado national courts and judges; and on the other its goal in a more restrictive application of the ECHR’s judicial Oran Doyle is to identify some of the main constitutional impacts practice. At the same time, it will be suggested that in Moderator Vicente Fabian Benitez-Rojas of such a dialogue. In order to do this, the paper first some ways even doubtful Constitutional Court judg- Room 8B-2-09 introduces the concept of “transnational judicial dia- ments might still constitute an important “bridge” be- logue” in the era of globalisation; second, the main tween the Russian Constitutional Court and the ECtHR. mechanisms or means of this dialogue used by the Elaine Mak, Niels Graaf and Erin Jackson: Old, SCC are explored; and finally, the paper exposes some Dimitriy Mednikov: The Russian Constitutional New, Borrowed and Blue: A Comparative Analy- of the main impacts of transnational judicial dialogue Court vs. Judgments of the European Court of sis of European Judicial Culture(s) of the SCC in particular its impact on judicial identity Human Rights: Breaking or Bending Interna- The Lisbon Treaty (2009) has set new goals for within the Court. Besides the transformation of the tional Law When Non-Enforcing It? judicial cooperation between member states of the SCC’s and its judges’ judicial identity, other notable The Constitutional Court of Russia has recently European Union (EU) with an eye to providing effective effects are: it causes constitutional changes by driv- declared two European Court of Human Rights judg- legal remedies and fundamental rights protection. This ing Canada towards a monist system contributes to ments – the cases of Anchugov and Gladkov v. Rus- cooperation is stimulated by the European Commis- harmonized international legal standards, advances sia and Yukos v. Russia – unenforceable. Apart from sion’s agenda (e.g. judicial training) and practices of consistent transnational jurisprudence, shapes the pointing out the legal supremacy of the Russian Con- ‘transnational borrowing’ between courts in the EU. outcome of national judgments, and impacts other stitution the Constitutional Court sought to ground However it remains unclear to what extent national important actors, such as national politics, national its conclusions, in particular, in the rules governing judicial cultures, i.e. ideas and practices regarding bar associations and law schools. interpretation of international treaties as well as in al- judging and judicial organisation which have devel- leged violations of the principle of subsidiarity by the oped over time, can and should converge into a shared Oran Doyle: It’s bad to talk: judicial dialogue and European Court of Human Rights. My presentation is ‘European judicial culture’. This project, which will run the judicial role aimed at both providing a critical assessment of the between 2016-2021, analyses the possibilities and Globalisation, understood as the intensification of arguments already made by the Constitutional Court constraints regarding further alignment of judicial worldwide social relations that link distant localities, from the standpoint of international treaty law and sug- cultures in the EU. Comparative-legal and empirical is a phenomenon that affects and includes judicia- gesting alternative arguments that might have been studies describe and explain the content and devel- ries. This occurs through formal and informal judicial resorted to by the Constitutional Court. opment of three aspects of judicial culture: 1) profes- networks but also through the decision-making pro-

Concurring panels 292 Concurring panels 293 178 Transformative tremely poor. This emerging empirical literature points both Courts – Interamerican Court of Human Rights 179 rethinking the matiére pénale constitutionalism or dead towards a theoretical gap. Very little literature explores and the Constitutional Court of Colombia for a 25- letter? The curious case of the question of when and why courts engage in these year period (1992 to 2017). I will present detailed con- The ECtHR jurisprudence has been developing since the Constitutional Court of patterns of enforcement or how we should conceptual- cepts, tables and graphics, highlighting: (i) the context Engel an autonomous notion of matiére pénale, which Colombia ize them from a normative perspective. This chapter and type of interventions carried out in the territories allows the Court to freely appreciate the criminal na- surveys three possible (and non-exclusive) explana- of cultural minorities; (ii) the main outcomes of the ture of proceedings and sanctions, irrespective of What makes a “peripheral” Constitutional Court tions for the emergence of social rights jurisprudence landmark cases Saramaka v. Surinam and decisions their formal qualification in the domestic legal orders. enough to be considered one of the most powerful on behalf of higher income groups. C-030/08 and T-129/11; (iii) the potential of “binding Unfortunately, the relevant criteria for this assess- and proactive in the world? Analogous with the case of consent” as an alternative to the problematic category ment still appear unclea in the framework of a sheer “Benjamin Button” in the story of F. Scott Fitzgerald, this Andrés Gutiérrez: Against the Tide: is it Possible of the so-called “veto power”; and (iv) the “indigenous case by case logic, where it is hard to derive the gen- young but mature Court has developed a wide-ranging to Obtain Social Changes Through the Judiciary question” and the standards of protection are taken eral principles underlying the Court’s approach. As and remarkable case law, thus attracting the attention when there is no Political Will? The Case of to indicate the relevance of regional integration in the a consequence, national courts are left without any of global scholars, policy makers, along with business Forced Displacement and the Colombian Con- framework of a broader Ius Constitutionale Commune guidance, particularly in sensitive fields such as con- and social actors. In doing so, it has not hesitated in stitutional Court en América Latina. fiscation or disqualification measures. It is time now, confronting public authorities and strong external The Colombian Constitutional Court is well known perhaps, to rethink the issue and possibly to assist powers. Reformulating the ancient division of powers, in comparative studies because of its progressist case César Vallejo: “I am the State”: The Distortive the Court in the elaboration of some basic principles, it has created interesting and innovative approaches law and especially for its determination in pursuing effect of the Colombian Constitutional Court on with the aim of better understanding the existing case to face the challenges of contemporary judicial re- the satisfaction of social rights. Due to its strong com- the Rule of Law law and proposing some guidance for its evolution. view and the protection of human rights. For instance, mitment in the consecution of social change for the Most scholars of judicial activism recognize the Special attention should be devoted to the question blocking presidential reelection under the doctrine of people in need and because of the transformations Colombian Constitutional Court as a world reference. whether it is possible – as the ECtHR has been sug- unconstitutional constitutional amendments, restruc- it has accomplished in the field of Constitutional Law, As it is well known, many of its rulings have advanced gesting at least since Jussila (2006) – to distinguish turing the healthcare system or protecting historic most of academics argue the Court has become a in the protection of individual freedoms and social between the guarantees which shall be ensured to discriminated groups such as indigenous peoples, powerful institution able to perform deep and lasting rights; however, such decisions have not been handed the “hard core criminal law” and those that might ap- afro-descendants, women, LGBTI, internally displaced changes in the Colombian society. The most paradig- down without criticism. The Court is accused, among pear sufficient for more peripheral sectors of the law people, amongst others. Naturally, such eruption in the matic decision of this kind is the judgment T-025-04. other things, of assuming functions that correspond which do serve punitive purposes, but do not carry judicial tradition has raised interesting critiques and Through this decision the Court ordered a profound exclusively to other public authorities, or, what is worse, the degree of stigma which is usually associated to challenges that we would like to share. and ambitious transformation of public policies ad- to offer apparent solutions to problems that require that traditional hard core. dressed to solve the violations of human rights suf- urgent and real actions. The position I intend to de- Participants David Landau fered by displaced people. In such a way it pretended fend starts by acknowledging that much of the prog- Participants Marta Cartabia Andrés Gutiérrez to guarantee the rights – especially social rights – of ress made in protecting individual and social rights in Paulo Pinto de Albuquerque Juan C. Herrera more than 3 million people who found themselves in Colombia would not have been achieved – or would Francesco Viganò César Vallejo appealing conditions as a result of the internal conflict. have taken much longer – without the Court’s rulings. Oreste Pollicino Moderator Víctor Ferreres In this paper I affirm that besides the symbolic chang- However, I claim that the preponderant role assumed Moderator Marta Cartabia Room 8B-2-19 es that seemed to have appeared in public opinion and by the Court in these issues (e.g. LGTBI rights or eu- Room 8B-2-33 the growth of Budget and bureaucracy, little change thanasia) has generated a kind of perverse logic in has been achieved from the victim’s perspective. This the functioning of the State. In other words, facing the David Landau: Constitutional Non-Transforma- case reveals the strong limitations that face the Con- ineffectiveness of other branches of power, the Court Marta Cartabia: The Engels criteria in the per- tion? Socioeconomic Rights beyond the Poor stitutional Court when trying to promote issues that are has assumed the place and functions that correspond spective of a national constitutional court There is now a substantial literature on the judicial not included in public agenda. Even more, it underlines to the legislator or the executive. This serious imbal- Since the Engel case (1976) the European Court enforcement of socioeconomic rights. While this litera- the risks that emerge when social movements focus ance has ended up distorting the basic elements of of justice defines “la matiére penale” according to ture has largely put to rest old debates about whether their efforts exclusively in courts. Finally, I maintain the rule of law. a substantive approach, which diverges from the courts can enforce these rights at all, it raises new that the Court has been successful in promoting these formal approach followed in most national systems. questions about how enforcement is being carried changes where authorities find additional incentives This difference is causing a number of tensions in out. Emerging empirical work suggests something of a to obey the orders delivered. This conclusion should front of national constitutional courts. Who defines contradiction with the theoretical literature on the pur- contribute to the improvement of the strategies de- “la matiére penale”? Is it a matter for the national pose of social rights. Put simply, the empirical literature veloped in order to secure the realization of human judge or for the European Court? What is the place shows that courts are often less interested (or less rights by not expecting the Courts to do the entire job. of national Constitutional Courts? Moreover, which able) in using social rights to promote social transfor- guarantees apply to administrative sanctions quali- mation than is commonly assumed in theoretical work. Juan C. Herrera: Constitutionalism of the Global fied as criminal only from the European perspec- This transformative assumption runs deep, affecting South or How a “Peripheral” Court is Trans- tive? Do article 6 and 7 CEDU be interpreted as a debates for example about the framing of these rights forming the Rights of Indigenous and other Cul- minimum standard guarantee? Examples of tensions in international instruments and in constitutions, their tural Minorities caused by the different approaches to “la matiére interpretation, and remedies for their violation. But Protection of indigenous peoples and other cultur- penale” will be taken from the case law of the Italian a growing literature shows that courts often enforce al minorities is one of the examples that have put the constitutional case law concerning the principle of socioeconomic rights in a robust way without focus- Colombian Constitutional Court on the global map or “ne bis in dem”, the ban of retroactive application of ing exclusively or even primarily on the marginalized. at least in the category constitutionalism of the global criminal penalties, the opposite rule governing the Across a number of different contexts, courts instead south. I would like to share a working paper that shows “lex mitior”, the notion of “base legale”, the authority often seem to use socioeconomic rights to defend an emblematic example of a two-way judicial dialogue. of “res iudicata”. the status of higher-income groups that are not ex- It presents jurisprudential case law in its entirety of

Concurring panels 294 Concurring panels 295 Paulo Pinto de Albuquerque: The ECHr stand- 180 vArieties of Nick Barber: The Principle of Separation of Pow- powerful executive exhausting the power bestowed point: challenges and perspectives Constitutionalism ers in the UK upon it paved the way to Hitler’s fascist dictatorship. The ECHR has not yet provided a clear concep- The principle of the separation of powers is com- A power separating democratic state was only insti- tual framework for the definition of the dividing line This panel explores the understanding of constitu- monly thought not to apply to parliamentary systems tutionalized under occupation in Western Germany between administrative and criminal offences. Until tionalism that is dominant within the US, Canada, the such as the United Kingdom. I argue that this objection after 1949. On the other side of the iron curtain, the now it sought to distinguish hard-core criminal cases UK, Germany and France. How does the historical turns on a mistaken understanding of the principle German Democratic Republic (GDR) formally adopt- which carry a significant degree of stigma and those context affect the way the various branches of govern- and, also, a mistaken understanding of the structure ed a number of constitutions after WW2. In practice, which do not, limiting the applicability of the criminal ment lato sensu, the executive, the judiciary and the of parliamentary systems. Once these misunderstand- however, it rather continued the authoritarianism of head guarantees in the case of the latter group. But legislative interact? What is the impact of this interac- ings are cleared away, not only can the parliamentary former German regimes and constantly violated the case-law clarified neither the substantive criterion of tion upon the liberties of the citizens? How does the model be seen as embodying a form the separation of rules it gave itself. Finally, with reunification in 1989 a significant degree of stigma nor the distinction be- separation of powers apply to parliamentary systems powers, it is arguable that, in some respects, it more democratic state was also accessible for the people in tween the disposable and non-disposable procedural such as the UK and Canada? How does the trust or closely allies with the principle than presidential mod- the former GDR. Drawing on continuity and change in guarantees. This case law impacts hugely In the field of distrust towards the legislative branch affect the bal- els. the evolution to a constitutional democratic state, we tax, stock-exchange, customs and other business and ance between the legislative and the judiciary branch can deconstruct the long road to a free society when corporate related offences. Reaction by Constitutional in France and in the USA? How have some elements Ioanna Tourkochoriti: “Apology” of the Law or we focus on separation of powers and fundamental and Supreme Courts raises the issue of constitutional of authoritarian constitutionalism that Germany has distrust towards the law? Comparing US and rights in German constitutions between 1848-1989. limits to such European case law. The question now is experienced affected its current understanding of French Constitutionalism To give a few examples: the federal state structure not only how to define the matiére penale in Europe, democratic constitutionalism and the interplay be- This presentation analyses the spirit of “legicen- foreseen by the German constitution of 1949 has its but also who defines it. tween the three branches of government? These are trism” that inspires the French Constitutional order in roots in the federalism of the 1848 constitution. Family some of the questions that will be explored by the opposition to the distrust towards the legislative that resemblances between the two are also visible when Francesco Viganò: Are Confiscation Measures participants in this panel. is characteristic of US constitutionalism. Is the “pater- we compare the bicameralism of the constitutions of Penalties for the Purposes of the EHCR? nalism of the legislative” that marks the separation of 1848 and 1949. On the other hand, with view on gender Confiscation measures are becoming more and Participants Carissima Mathen powers in France the most effective and necessary equality we find strong similarities (even in the wording) more popular in modern criminal systems as effective Nick Barber conception of constitutionalism for the protection between the concept adopted in the Weimar Con- tools to fight against economic offences and orga- Ioanna Tourkochoriti of rights and liberties? The distrust towards the law stitution of 1918 and different socialist Constitutions nized crime. Their constitutional and human rights law Anna Fruhstorfer and characteristic of the US Constitutional order leads adopted in the GDR after 1949. Similarities can be also status is, however, still largely unclear. While certain Felix Petersen to an understanding of the separation of powers in found with respect to the persistent authoritarianism: forms of confiscation have been considered as “puni- Franciszek Strzyczkowski a way that gives priority to the judiciary. Political sci- unclear or dysfunctional separation of powers and the tive” measures by some ECtHR judgments, other kinds Moderator Ioanna Tourkochoriti entists have criticized this conception as implying an centralization of power in too few hands has played a of confiscation have been held to be merely ‘preven- Room 8B-2-43 aristocratic form of government. The presentation ex- negative role in all authoritarian German regimes. As- tive’ measures, which only attract, as such, the guar- plores the differences in the kind of rights and liberties sessing the political development of Germany through antees provided for the right to property and the fair that are protected in the context of these variations its constitutions, in particular through the organization process rights in their civil limb. And this in spite of their Carissima Mathen: The “Elusive” Separation of of constitutionalism. It traces the emergence of these and separation of state powers and the state-citizen being conceived as consequence of the commission Powers in Canadian Constitutional Law different conceptions to the French and the American relation, we can reconstruct key elements that char- of criminal offences, and of their huge impact on the Historically, the separation of powers has occu- Revolutions and the different sociopolitical needs to acterize both democratic and autocratic footholds interests of the individual concerned. The question is pied a curious position in Canada. As a Westminster- which they responded. And it explores the operation that shaped the state in modern Germany. Thus, we especially critical in respect of non-conviction based style democracy, the nation has been associated with, of these variations of constitutionalism in reference to contribute to literature on democratic and authori- confiscations, which are already intensively applied at most, a weak version. In the post-Confederation contemporary human rights questions. tarian constitutionalism. And we will illustrate on the in some legal systems, among which Italy, but which period, the doctrine was generally absent from le- transition from one to the other. have been more and more regarded as an attractive gal and political discussion. Greater attention by far Anna Fruhstorfer and Felix Petersen: Continu- strategy for the future in many other countries. This was paid to vertical issues of governance, namely ity and Change Constitutionalism Democratic Franciszek Strzyczkowski: The misconception paper sets out to critically discuss these issues, and federalism and the division of powers. The Constitu- State and Separation of Powers in German Con- on the principle of separation of powers. A case to propose a comprehensive theoretical framework tion Act, 1982, which included the Charter of Right, stitutions (1848-1989) study of the Polish constitutional crisis to assess the compatibility of confiscation measures introduced robust US-style judicial review. The new Germany is a late bloomer with respect to both with constitutional and international human rights law. framework was decried as impinging on “Parliamen- democracy and constitutionalism. Although after the tary sovereignty”, a charge that continues to this day. Revolution of 1848/1849 a popular assembly drafted Oreste Pollicino: Discussant Parliamentary sovereignty is not necessarily associ- a progressive constitution, this fundamental law was The paper will draw some conclusions on the ated with the separation of powers. But in Canada never adopted and the German States were not united points discussed by the other panelists and focus on the link was clear because of the perceived threat until twenty-two years later. United under the dictate how courts (both Constitutional courts and the Eu- posed by a newly empowered judiciary. At the same of Prussia in 1871, the regime institutionalized was not ropean courts) can address the existing challenges time the courts themselves began to acknowledge a democracy or a liberal monarchy but an absolutist through dialogue. The Taricco case will be brought the doctrine: asserting the judiciary’s independence monarchist state which based its legitimacy only for- as an example of how cooperation can be reached and crafting distinct norms under which they have mally on a fundamental law that it constantly violated. in a way that ensures that the growing complexity of aggressively scrutinized the other branches. Recent For example, the state was run with an unconstitu- EU competence is nevertheless consistent with the opinions demonstrate that the separation of pow- tional budget only authorized by the house of lords but respect of the fundamental principles of domestic ers is now entrenched in the Canadian conception not approved by the peoples’ chamber in the 1860s constitutional orders. of judicial review. But its more tenuous position in the and 1870s. A democratic constitution was enacted larger constitutional order is a continuing source of in Germany only after the Revolution of 1918. But the tension and uncertainty. Weimar Republic did not last for long: Again, an all too

Concurring panels 296 Concurring panels 297 181 economic and Market and union militancy). The new legislation establishes a these platforms rely on rating and reputational instru- 182 Administrative Law Regulation quasi-criminal tribunal that treats unionists in a similar ments, i.e. digital systems promoting peer-review of and due process manner to the suspects of terror offences. Defendants performance. The European Commission and sev- before the tribunal are deprived of their right to silence eral scholars have praised the benefits of reputational Participants Anna Tsiftsoglou and and the presumption against retrospectivity while a mechanisms. Yet, it is unclear whether reputational Participants Elisabeth Eneroth Stylianos-Ioannis Koutnatzis series of quasi-criminal penalties follow the imposition systems protect the public interest since they tend Fabiana Ciavarella Eugene Schofield-Georgeson of a civil standard of proof in prosecutions of workers to be biased, incomplete, and in disregard of nega- Andy C. M. Chen Biancamaria Raganelli and unions. This paper explores the potential impact tive externalities experienced by third parties. In this Giulia Mannucci Sofia Ranchordas of this legislation on unions and workers in the Austra- paper, I discuss from a comparative perspective the Sharath Chandran Moderator Sofia Ranchordas lian building and construction industry by reference to historical development of public-interest regulations Rebecca Ananian-Welsh Room 8B-2-49 international examples of similar policy – the US in par- in the hospitality sector, their current relevance in the Moderator Elisabeth Eneroth ticular. Apart from the obvious breach of workers’ and platform economy, and the critical position of courts Room 8A-3-17 unionists’ civil liberties, this paper highlights a strong in this debate. I inquire whether the platform economy Anna Tsiftsoglou and Stylianos-Ioannis Kout- correlation between such laws and an increased risk to is making us rethink the notion and protection of the natzis: Financial Crisis and Judicial Asymme- occupational health and safety as well as a reduction public interest in light of the free flow of reputational Elisabeth Eneroth: Administrative Courts the tries: The Case of Greece in union density or coverage. information or inviting us to redesign existing regula- Relation of Power between the Levels of the Greek courts have recognized constitutional su- tions in light of new challenges to the public interest Law Social Law premacy as the basis for judicial review of the constitu- Biancamaria Raganelli: Banking Crisis, Courts (e.g. fake reviews). The purpose of this paper is elaboration of the rela- tionality of legislation since the late nineteenth century. and Power tion of power as a relation between the (vertical) levels However, they have long maintained a deferential atti- As clarified by 2015 US Sustainable Development of the law as mediated in the legal practice(s) and by tude to the political branches of government. Following Goals, among the great challenges for sustainable the legal actor(s) in their actor-specific text(s) through the proportionality’s explicit constitutional guarantee development, there is the proper management of the language of the law in the levels of the law. Focus is since 2001, courts and constitutional scholars have economic resources by strong and accountable in- on power inherent in the levels of the law. The relation undertaken rigorous scrutiny more often. However, stitutions. The connection between therule of law and of power shall in turn constitute the basis for elabora- in the wake of the financial crisis the standards of economic development is essential to ensure sustain- tion of the relationship between the relation of power constitutional scrutiny remain asymmetric among able development at national and international level. and the relation of criticism between the levels of the different domains of constitutional law. Initially, the The European banking system is actually affected by law. Focus is on power effect(s) created by the levels of Greek financial emergency emphatically resulted in a a large amount of non performing loans that make the law. This provides an alternative critical approach self-restrained variation of proportionality. In the last the efficient provision of credit extremely difficult. It is for analyzing the relationship between law power and years, a tendency of judicial empowerment has pre- essential to restore the proper functioning of banking criticism in legal science. This approach is applied on vailed thus reversing the initial pattern of the crisis within a European transparent regulatory framework. the example of the Supreme Administrative Court of jurisprudence. However, courts have targeted almost The ECJ highlights the central role of banking and fi- Sweden and young persons at homes for care or resi- exclusively cuts in state expenditures, e.g. striking nancial stability for the functioning of the Union. This dence in Swedish social law. What explains this, in this down reductions in pensions as well as cuts in the becomes a superior public interest prevailing even case, rare network of judicial control over public power wages of specific categories of public officials, such investor protection. Is the European financial institu- with regard to placements of young persons at homes as judges, military personnel and university profes- tional framework still in progress able to guarantee for care or residence by the social services, and rare sors. In contrast, Greek courts have left intact tax and strong effective and transparent Institutions in Europe transnational judicial interaction in cases regarding other measures that aim at increasing state revenues; such as those needed to promote inclusive and sus- these placements? To what extent do, for example, the in this respect, courts have intervened solely on pe- tainable growth? How to take care of investor protec- Supreme Administrative Court of Sweden, succeed in ripheral issues. This paper argues that this approach tion without harming market competition? What are achieving its goals, and under what linguistic condi- is untenable on constitutional grounds. Both the policy we to make of the role of courts in the management tions? The purpose is to provide a contribution to the leeway of the political branches of government and and mismanagement of the national and international International Society of Public Law for further use in the constitutional limitations apply with equal strength economic crisis? These are the questions which the examination of the relationship between courts power with respect to state expenditures and state revenues. paper intends to investigate though aware of the deli- and public law in theory and in practice. cate “political” implications related to different legal Eugene Schofield-Georgeson: A New Era of and economic issues in Europe. Fabiana Ciavarella: Can judicial review foster Coercive Industrial Relations for Australia participation in administrative rulemaking? Since coming to power in 2013, the Liberal Na- Sofia Ranchordas: Rethinking the Public Inter- The Italian general law on administrative proceed- tional Party Government of Australia has persecuted est in the Platform Economy ings excludes the participation of interested parties its traditional political opponents – trade unionists and The platform economy (e.g. Airbnb, eBay) has from proceedings leading to the adoption of a rule. union officials – through a series of show trials (a Royal revolutionized traditional regulatory paradigms. While However, the rule is an administrative act that, by Commission) led by an avowed anti-union judge. In late conventional businesses (e.g. hotels) must comply definition, will be general in content and will address 2016 the Australian Government used the outcome with compulsory authorization schemes (e.g. licens- several people. Isn’t it contradictory that public partici- of the Royal Commission to implement a new code es permits) designed to protect public interests (e.g. pation is not taken into consideration for the issuance of industrial legislation designed to ‘bust’ Australian fire safety), platform-economy services circumvent of such an act? By comparing and contrasting the unions and their members, particularly those in the them. These platforms suggest that regulations alleg- Italian experience with foreign ones, the participa- building and construction industry (this industry has edly justified by the public interest are obsolete. They tory exclusion provided for by the Italian legal system one of the highest rates of death and injury in Aus- claim that in the information society the notion and the seems an isolated exception, since in other legal sys- tralia, corresponding with high rates of unionisation protection of public interests have evolved. Instead tems participatory rights are fully recognized even in

Concurring panels 298 Concurring panels 299 rulemaking proceedings. Moreover, by looking at the validity of the relevant act; the “substantialist” logic, on 183 corruption and Official and citizens could utilize towards dealing with rule of Italian administrative jurisprudence of the Council of the contrary, emphasizes the substantial correctness Disobedience law crisis. The EU rule of law requires a legal frame- State, who does annul rules for non-compliance with of decisions and denies formal and procedural defects work, both at the EU and MS level, which prevents and procedural standards, a general willingness to expand a direct impact on the validity of the measures. This tackles corruption since corruption hampers every participatory rights to a growing number of rulemaking antagonism reflects the tension between conflicting Participants Elizabeth Acorn substantial and formal requirements of the rule of law. proceedings can be perceived. Why is it so? Are differ- public law values: on the one hand, the efficiency and Franco Peirone Particularly, the reception of the UNCAC obliges the EU ences only a matter of dissimilar legal traditions? How expediency of the administrative action; on the other Yoav Dotan legal framework to particular constraints and MS’ non- much room do modern democracies leave for public hand, the protection of private positions vis-á-vis the David Fagelson compliance with them may allow a EU anti-corruption participation in administrative rulemaking processes? administrative power. The paper aims to examine this Johannes Buchheim and enforcement action. The traditional infringement pro- And what is the role of the Courts towards the rule- tension by comparing the approaches to the issue that Gilad Abiri cedure represents a tailored mechanism for address- maker, is it deferential or does it translate into a deep have been developed by a national court (the Italian Moderator Elizabeth Acorn ing a lack of anti-corruption legislation in a MS. In more control of administrative action? Can judicial review Council of State), a supranational court (the EU Court Room 8A-3-27 serious cases, in which the whole member state legal foster participation in administrative rulemaking? of Justice) and an international court (the European framework is simply ineffective in fighting corruption, Court of Human Rights). it is possible for the EU Commission to start an Art. 7 Andy C. M. Chen: Judicial Review of Economic Elizabeth Acorn: In the Shadow of the Court: the TEU procedure. Meanwhile, a grassroots approach Evidence in Competition Cases by Administra- Sharath Chandran: Judicial Review of Admin- American Innovation and Export of Negotiated could constitute a third and interesting option, by hold- tive Courts in Taiwan: An Effect-Based Proposal istrative Action- Perspectives from the Indian Resolutions for Bribery in International Business ing the MS liable for failing to ensure an adequate anti- Years of reviewing experience by the administra- Experience The influence of the 1997 OECD Anti-Bribery Con- corruption framework under the Francovich regime, tive courts in Taiwan have shown a tendency towards Over the last fifty years, the growth of judicial re- vention, a prominent example of international efforts relying on the citizens’ commitment against corruption. over-formalistic understanding of its major competi- view in India has seen few parallels. Traditional mod- to combat corruption globally by stifling its supply, has tion legislation, the Taiwan Fair Trade Act. In particu- els of certiorari grounded on jurisdictional errors and extended well past the Convention’s core legal obliga- Yoav Dotan: Action Expresses Priorities : Judi- lar, the courts’ interpretation of economic evidence in errors of law have given way to a rights based model tion for states to establish domestic criminal prohibi- cial Anti-Corruption Enforcement Can Enhance competition cases have demonstrated a rigid reliance where the legitimacy of State action is subject to tions against foreign bribery. Since implementation of Electoral Accountability on certain time-honored general principles of admin- exacting scrutiny on the touchstone of fundamental the Convention, many OECD states have continued to Can judicial decisions affect electoral behavior? istrative law, and has rendered the reviewing results rights. The central premise of this paper is that while modify domestic laws and enforcement practice which, Can they enhance electoral accountability by signaling irresponsive to genuine competitive effects from there is clear evidence to show that the scope and this paper argues, is in response to ongoing interna- to voters that integrity considerations are important? market interactions. We first introduce the enforce- depth of review has dramatically increased, there is tional socialization. In particular, the paper points to Shortly before the 2013 municipal elections in Israel, ment structure of the Act in Part I of this paper. Part II no clear evidence to show that the administrative au- the OECD Working Group on International Business, the Israeli Supreme Court ordered the immediate illustrates how the administrative courts determined thorities, on whose processes review is carried out, which has not only championed the increased en- removal from office of three city mayors, following the quality and probative value of economic evidence have absorbed the core values that the Court seeks to forcement of anti-foreign bribery laws, but also has their indictments for charges of corruption. We take in cartel and merger cases because these are the protect. In other words, it is argued that the frequency provided a forum where a particular approach to the advantage of this unique political-legal situation to two types of litigation that sophisticated economic of intervention and the increasing volume of litigation enforcement of foreign bribery law -- that pioneered estimate the effect of anti-corruption judicial activity evidence and theories are mostly likely to be raised. is a sign of a weakening administrative machinery that in the U.S. -- has served as a continual reference point. on electoral sanctioning of low-integrity incumbents. We argue in Part III that disputes over the persuasive- has become irresponsive to constitutional values. In The distinctive U.S. enforcement model, characterized Relying on actual voting data from 65 Israeli cities for ness of those decisions are usually attributable to an enforcing fundamental rights the Court, in many cases, by negotiated resolutions, with very few allegations the 2008 and 2013 municipal elections, we apply a inflexible application of the following three principles is invited to step aside from its traditional role as a of foreign bribery proceeding to criminal trials, high- difference-in-difference estimation to test this effect. of administrative law: the principles of legal certainty Court of correction into assuming a pro-active role levels of prosecutorial discretion and strong incentives Results indicate that the electoral effect of judicial anti- judicial deferral and proportionality. We then offer in that involves making value based choices. The Court’s for corporations to self-monitor and self-report, has corruption activity on the vote-share of low-integrity Part IV an effect-based proposal to adjust the manners power is, however, limited to evolving a norm on a case come to inform the shared standards and best prac- incumbents is negative and substantively significant. those principles are to be applied to avoid oversimpli- to case basis. It is argued that in the long run sensitiz- tices that the OECD promotes and that many states This effect on electoral sanctioning of corruption is fied reviewing process inappropriate qualification of ing administrative authorities with the core values of are beginning to adopt. Together, this research high- the largest recorded, suggesting that judicial bodies reviewable issues on appeal and arbitrary determina- a fair efficient and transparent administration could lights not only the continuing influence of the U.S. on carry the capacity to influence electoral behavior by tion of penalties meeting the proportionality require- achieve results that are consistent with values that the international anti-bribery regime, but also provides signally the importance of integrity considerations in ment. Part V describes the policy implications for other judicial review recognizes and seeks to implement. a nuanced depiction of the reception of international electoral choices. jurisdictions from our study and concludes this paper. law into domestic legal orders and their ongoing in- Rebecca Ananian-Welsh: Due Process without teraction. David Fagelson: Official Disobedience and Le- Giulia Mannucci: Due Process Administrative Rights gal Integrity Powers and Judicial Review Due process in court proceedings is universally Franco Peirone: Corruption in Member States Public authorities are required to ensure respect recognised as fundamental to achieving justice fair- and the EU Rule of Law: Which anti-corruption Johannes Buchheim and Gilad Abiri: Official Dis- for due administrative procedure in the exercise of ness, the legitimacy of the state and its institutions, tools are enforceable? obedience and the Competition over Legitimacy their powers. How strict is this requirement vis-á-vis the rule of law, and individual liberty and dignity. This In the late January 2017, the Romanian government This paper develops the notion of official disobedi- competing administrative needs? How courts ensure importance is heightened by the expanding role of intended to adopt a decree that would have decrimi- ence which we define as fierce mutual opposition be- administrative compliance with the participatory rights courts in the lives of citizens and in providing a check nalized certain abuse of power offences. On February tween holders of public office. This phenomenon goes of affected subjects, and with the duty to state the on state power. Thus, due process finds protection in 1st, the EU Commission President Juncker warned well beyond separate powers/branches of government reasons for administrative decisions? The answer to human rights documents the world over. But can due Romania not to backtrack on fighting corruption. At acting as mutual checks and balances while remaining these questions depends on the understanding of due process be effectively protected without engaging the last, on February 4th, the government scrapped the within their constitutional boundaries. Here, we find process guarantees in respect of public decisions: the framework of individual rights? controversial decree. This series of events raises sig- public officials (over)stretching and trying to alter their “formalist” logic assigns to those forms of protection nificant questions about the existence of a EU-law no- constitutional roles. This makes official disobedience an independent relevance, which directly affects to the tion of rule of law as well as which tools EU institutions a struggle for legitimacy: the kind of power which is

Concurring panels 300 Concurring panels 301 assumed is not the ordinary power conveyed by the 184 Pu blic and Private Powers to address the allegation that a state’s interpretation face in adjudicating public law issues on Indigenous constitutional framework. Instead, the overstepping of its own law is inconsistent with international inter- rights while in an inevitable interface with private law. public official claims the (extra-ordinary) legitimacy of pretations and therefore incorrect. The arguments Public law reasoning methodologies may fall to take shifting the balance of powers of changing the rules Participants Eli Bukspan and Lilly set forth in part depend upon the international into account certain private law concerns, so the paper of recognition. Official disobedience thus is the act of Asa Kasher trade system’s TRIPS Agreement, which binds all WTO is in part about how (or if) courts can try to success- playing the “legal game” while not quite following its Kevin Crow Members and falls under the auspices of public inter- fully transcend boundaries between constitutional law rules. Prevalent in times of Trump’s America, compet- Nancy Marder national law (PIL). However, both the VCLT and the PIL administrative law, international law and private law. ing courts in Europe and constitutional restructuring Dwight Newman on which the case is based were shaped by U.S. and At the same time, the paper is an interrogation of the in Poland, Hungary, and Turkey official disobedience Moderator Nancy Marder U.K.-dominated conceptions of property and legal exercise of judicial power in this context, exploring is cut from the same cloth as revolutions and consti- Room 8A-3-45 interpretation. This paper will present the thesis that whether courts are institutionally situated to adjudicate tutional moments. In all three times of upheaval and at least in this instance international ‘judgment’ as an such questions successfully with respect to a number drama create the possibility of a shift in the constitu- exercise of power leads to two dead end results one of criteria the paper will offer to measure success- tional structure and its legitimizing basis in politics Eli Bukspan and Asa Kasher: Public Rights for undermining the international economic legal system ful adjudication in this context. The paper will move and culture. However, in focusing on official action Private Persons: Direct Application of Constitu- and the other undermining domestic courts. It will then toward conclusions that bear on institutional design that stays within the overall shapes and forms of the tional Human Rights investigate the broader implications of this ‘lose-lose’ of adjudication in the constitutional Indigenous rights existing constitutional framework, the notion of official Our paper deals with the possibility of, and the scenario for the role of judicial power in public inter- context. disobedience provides a prism for many struggles need for, applying human rights directly in the realm of national law. within a constitutional/legal system that fall short of private law. This approach contrasts with the prevalent constitutional moments and revolutions. view of constitutional human rights as part of public Nancy Marder: Courts Power and the Public: law, to be applied in private law through an indirect ap- Cameras in the UK Supreme Court plication model that is limited, implicit and unsystem- Courts are essential to a democracy because atic. We hold that this indirect model is incompatible they resolve disputes in public proceedings that re- with a democratic world view that recognizes not only assure citizens that justice has been done. However, a basic right to the free and undisturbed realization of as members of the public read less and watch more, individual liberties, but also a need for protecting the and as technology provides unobtrusive cameras and undisrupted exercise of human rights. In a democratic live-streaming, the pressure is greater than ever to regime, therefore, the identity of the infringing agency – allow cameras in the courtroom to educate citizens the various branches of government as opposed to about the workings of their courts. But on the other individuals or other private entities – should not serve side, judges and some legal scholars worry that in the as the litmus test for determining the legal protection name of transparency trials involving difficult issues granted to human rights. Indeed, our comparative will be turned into reality shows for everyone’s enter- examination demonstrates how, in recent years, the tainment. They worry that neither justice nor citizens’ approach acknowledging indirect application of hu- rights will be served by potentially self-serving media man rights in private law has drawn closer and almost outlets that focus on increasing their viewership and blended with the one acknowledging direct application. bottom line. With these critical and diametrically op- In the paper, we also challenge the suspicion which posed views in mind, this paper presents findings from has been raised, according to which adopting the di- the first empirical study of how cameras are used in the rect application model in private law will actually lead UK Supreme Court. The UK Supreme Court is one of a to the violation of human rights, given that private law number of courts to permit cameras in the courtroom. lacks the tools for deciding on priorities in their regard. Such courts have begun to experiment with changes Our approach enables profound justifications as well to tradition that they hope will allow them to maintain as applications of the direct application model of hu- public trust. They want the public to learn about what man rights in private law. takes place in the courtroom and they believe that live-streaming is the best way to reach the public. The Kevin Crow: Private Power Public Law Revisited: debate about cameras in the courtroom is raging in the Intellectual Property at the ICSID through the United States and Europe and countries can learn from Vienna Convention: Implications of Eli Lilly v. each other’s experiences including how cameras are Canada used in the UK Supreme Court and with what effects. Through the vehicle of international courts, private power has the potential to shape public international Dwight Newman: The Private Law Interfaces of law and to force revisions to the domestic law of non- Constitutional Indigenous Rights Adjudication hegemonic states. This explores this theme through Some states, including Canada, have constitution- a study of Eli Lilly v. Canada – a pending (fully argued) alized Indigenous rights. In adjudicating constitutional case brought by a U.S. investor against Canada before and administrative law issues associated with these an ICSID tribunal. Initiated under NAFTA’s Investment rights, courts simultaenously affect private law en- Chapter after two Canadian Supreme Court decisions titlements and rules in relatively significant ways. This on the definition of Canada’s intellectual property law paper, building in a theoretical direction on my recent invalidated the investor’s patents Eli Lilly v. Canada is Nebraska Law Review article on Canadian adjudication the first case in international investment law’s history on Aboriginal title will explore challenges courts may

Concurring panels 302 Concurring panels 303 185 controversies in Social right in front of the extensive construction of other cial decision adopted by a High Court and eventually 186 comparing Courts and their Rights interests (abusive clauses in mortgages). This paper modulate the remedies or agree on a plan for future Constitutional Role will try to analise the main judicial decisions relating fulfilment. This paper is concerned with how fiscal sus- housing rights in Spain and try to find the rationale to tainability has been instrumental in the normalisation Participants Irene Sobrino Guijarro Constitutional and Supreme Court limited protection of precarity as part of a governmental project aimed Participants Allison Geduld Alba Nogueira of housing rights. A recentralization process under at governing through insecurity and inequality. Fiscal Kálmán Pócza, Gabor Dobos Karen Kong way might be one of the explanations as social pro- sustainability participates in this project by means of, and Attila Gyulai Johanna del Pilar Cortes-Nieto tection is one of the main Autonomous Communitites on the one hand, isolating budgetary discussion from Yuichiro Tsuji Elena Pribytkova domain of action while economic competences fall on democratic control and restricting the means by which Shucheng Wang Moderator Johanna del Pilar Cortes-Nieto the State part. Also, an increasing politization of the contestation can be exercised in this particular case Michael Hein Room 8B-3-03 designation of both courts might point out towards by redefining rights and curtailing the possibilities of Moderator Allison Geduld influence of political and economic elites in the judicial seeking social justice before courts. On the other hand, Room 8B-3-09 decisions. it redefines citizenship and increases individual re- Irene Sobrino Guijarro: Constitutional Courts sponsibilities through a moral demand for shared but enforcing social rights: achievements and on- Karen Kong: Jurisprudence of the United Na- individual sacrifice, reinforced by the stigmatisation of Allison Geduld: South African courts and consti- going tensions tions Committee on Economic Social and those who refuse to give up the entitlements promised tutional values The tensions that are often identified between de- Cultural Rights and Social Rights in Domestic by previous welfare arrangements. Prior to the constitutional dispensation in South mocracy and constitutionalism are especially promi- Courts Africa the nature of adjudication was formalistic and nent with respect to the protection of social rights. A Since the entry into force of the Optional Protocol Elena Pribytkova: The Voice of One Man Is the devoid of considerations of value. The work of the conventional argument that pervades literature critical to the International Covenant on Economic Social and Voice of No One? Individual Complaints Against judiciary has since become a value-laden exercise. of the judiciable nature of constitutional social rights, Cultural Rights, the United Nations Committee on Eco- Extraterritorial Violations of Socio-Economic Section 39 of the Constitution of the Republic of South lies in the assumption that these rights essentially en- nomic, Social, and Cultural Rights (CESCR) has heard Rights Africa mandates courts to promote the values that tail political claims regarding strategic choices among a few individual communications. As a supranational An old English proverb says: “The Voice of One underlie an open and democratic society based on means (legitimacy deficit claims) or, at most, they are adjudicative mechanism specifically on economic and Man Is the Voice of No One”. The basic idea is that a human dignity, equality and freedom, when interpret- considered as unenforceable guides for legislative or social rights, it has an important role in strengthen- person alone has very little chances (if any) to stand ing the Bill of Rights. Courts similarly have to promote administrative decision-making (lack of competency ing accountability for the ICESCR, contributing to the against power players and protect herself adequately. these values when interpreting legislation. Constitu- arguments). In this paper, I argue that these claims development of norms and standards, and filling in It is interesting that the concept of universal human tional values do not come with a ready-made meaning. may lose their force when confronted both from a con- the gap in international economic and social rights rights is based on precisely the opposite thesis. A per- It is thus incumbent on the judiciary to give content to stitutional fact-stating and from a normative sense. In adjudication. This paper is a preliminary assessment son, her rights and dignity are absolute values and constitutional values. In doing so the judiciary often particular, I draw on the German and Spanish Consti- based on the initial jurisprudence of the CESCR. It will ultimate goals of international legal order. It means that have to rely on extra-judicial sources such as philo- tutional Courts’ experience to present two stances examine the working method, the standard of review, the voice of every person, regardless of her social sta- sophical concepts. The judiciary has a broad discretion of judicial review on social rights legislation carried the factors considered and the margin of discretion tus nationality, place of residence or any other factors, in determining the content of constitutional values. out by centralized bodies, which have cautiously and applied by the CESCR in considering individual com- should be heard. In the age of globalisation, actions Although the courts use constitutional values often the progressively incorporated a transversal interpreta- plaints. This will be compared with the approaches of states and non-state actors have a crucial impact theoretical underpinnings of the nature of constitution- tion of the “social state”, “equality” and “human dig- adopted by the United Nations Human Rights Com- on the enjoyment of socio-economic rights worldwide. al values have not been discussed by the courts. This nity” constitutional principles, in order to justify the mittee on similar socio-economic issues. What added- Especially they affect those in poverty. Examples in- raises the question what the bounds are of the court’s enforcement of the “directive social principles” (Spain) value does the CESCR offer in light of its overlapping clude wars and military interventions, trade and in- discretion to determine the content of constitutional or the protection of certain social rights not explicitly jurisdictions in some areas with the Human Rights vestment policies, inadequate financial regulations values. In an attempt to answer this question various enshrined in the Constitution (Germany). Committee? How is the review standard of the CESCR and illicit financial flows, environmental destruction, judgments will be appraised where courts have utilised compared to domestic courts in adjudicating social economic sanctions, as well as development aid. It is constitutional values. Various theories of judicial inter- Alba Nogueira: The role of the Spanish Consti- rights cases? This paper will discuss some challenges important that every person whose rights are infringed pretation will also be evaluated to determine which one tutional and Supreme Court towards housing of the CESCR in creating constructive dialogues with by a foreign state or a non-state actor enjoy the right to is best suited to the application of constitutional values. rights in the economic crisis turmoil domestic courts on the progressive realization of so- secure, direct, effective, and affordable access to jus- The economic crisis has risen the awareness to- cial rights. tice and remedies. In my paper, I provide an overview Kálmán Pócza, Gabor Dobos and Attila Gyulai: ward housing rights in Spain with worrying mortgage on main problems, potential and limitations of exist- Judicial Constraints on Legislations in Central foreclosures figures and high rates of non-emanci- Johanna del Pilar Cortes-Nieto: Redefining So- ing international and regional individual complaints Europe: A Time-Series Cross-National Analysis pated young people. There have been efforts to build cial Rights in Times of Austerity. The Case of the mechanisms capable to address states’ extraterrito- The main deficiency of the systematic empirical up a subjective right to affordable and proper housing. Constitutional Court of Colombia rial violations of socio-economic rights and suggest research on constitutional adjudication consists in Recent reforms of the bills of rights in the Autonomous In 2011 the Congress of Colombia passed a con- short-term, medium-term and long-term measures an unsophisticated dichotomous approach that sepa- Communities have been the legal basis to promote stitutional amendment that introduced fiscal sustain- for their improvement. rates the merely positive and negative decisions of regional Acts that protect the housing rights to support ability as a criterion which should guide legislative, constitutional courts, i.e. decisions that concluded the vulnerable groups needs. However the Constitu- executive and judicial decisions. It was claimed to be in declaring the constitutionality or unconstitution- tional case law seems to step aside of social consid- an instrument necessary to achieve progressively the ality of a given legislative act. A more sophisticated erations adopting an expansive scope of the powers objectives of the social state governed by the rule of methodology has been elaborated by the JUDICON of the State Administration linked to economic areas law proclaimed in the Constitution – including the sat- research group (www.judicon.tk.mta.hu). This meth- ruling out most of those provisions. Also, the restric- isfaction of social rights. The amendment introduced odology seems to be an appropriate tool to answer tive Supreme Court rulings over mortgage conditions a judicial mechanism which could be activated by the the question: To what extent have decisions of con- was contested giving place to the leading role of the Controller General of the Republic or any Minister in stitutional courts constrained the legislative’s room European case law balancing the protection of this order to discuss the fiscal consequences of a judi- for manoeuvre? Based on a dataset produced by the

Concurring panels 304 Concurring panels 305 JUDICON project we started to evaluate all relevant by the SPC. Moreover, the guiding case system allows 187 mAking and Breaking problem behind the judicial review of constitutional decisions of the constitutional courts of selected the SPC to expand its legislative authority, apart from Constitution amendments when people have the last word in such Central European countries by applying the external the one delegated by the National People’s Congress processes. strategic model of judicial behavior on the relevant Standing Committee – the highest legislative body court decisions which concerned legislative acts from in China. The SPC is able to interpret the law directly Participants José M. Díaz ed Valdés Poonthep Sirinupong: Coup d’Etat to secure 1990 to 2015. According to the literature, public trust through adding the “Main Points of the Adjudication” – Neliana Rodean unamendability?: Thailand’s controversies on in courts and political fragmentation are the two most a part finalizing each guiding case by the SPC. Poonthep Sirinupong unconstitutional constitutional amendment important factors which help explain the behavior of Moderator Neliana Rodean Thailand’s recent political crisis came to a tempo- the judges of the constitutional courts. Beyond that, Michael Hein: Discussant Room 8B-3-19 rary halt when the military led a coup on 22 May 2014. we have tested additional factors, such as political Like always, coup maker abolished the old Constitu- polarization, judicial independence, and constitutional tion and promulgated the interim Constitution, which flexibility for every single cabinet in the selected seven José M. Díaz ed Valdés: The Weaknesses of the arranges the new constitution-making process. Unlike countries from 1990 to 2015. Though large studies Chilean Constitution-Making Process its precedent that solely the formal procedure was have certainly several virtues, we started to evaluate This paper critically analyses the constitution-mak- laid down, the 2014 interim Constitution has estab- the database also qualitatively with country experts. ing process currently taking place in Chile discussing lished some fundamental principles that have to be its origins stages inconsistencies and complications. employed in the draft Constitution. Vitally important is The main hypothesis is that underlying the whole pro- that the new Constitution has to comply with the idea Yuichiro Tsuji: Judicial Administration in Japan cess there is a constant lack of agreement, particularly of “the democratic regime of government with the The Japanese Supreme Court apologized for among its supporters, that may explain most of the dif- King as the Head of State” or the so-called “Thai-style establishing special tribunals for leprosy patients ficulties and oddities showed so far. This disagreement democracy”. Additionally, new constitutional amend- outside standard courtrooms. The Supreme Court covers an array of fundamental issues such as who ment rules and a Constitutional Court’s explicit juris- initially admitted that it was unconstitutional because should draft the new Constitution, what its basic con- diction on reviewing a constitutional amendment will the unfair procedure and trials discriminated against tents should be, and the role that should be assigned be founded. Both are reflections of the constitutional leprosy patients. The Supreme Court’s move to hold to the people. As a consequence of this continuous controversies before the coup. In 2012, the Constitu- special courts at that time was not based on scientific disagreement and the lack of effective leadership to tional Court blocked the Parliament’s effort to amend research on the medical condition of leprosy patients. negotiate it, the success of the constitution-making the 2007 Constitution that allowing for the creation of These patients were isolated in sanatoriums until 1996, process may be compromised. So far, the scarce lit- a constitutional assembly to write a new constitution. when the Leprosy Prevention Law was abolished in erature about the Chilean constitutional-making pro- Again in 2013, the project to democratize a senate was the Parliament. Then, in 2001, the Kumamoto District cess has focused on a critic to the current constitution turned down. The Constitutional Court decided that Court admitted governmental responsibility for legis- and its origins, or on the possible contents of a new last amendment was unconstitutional. Those deci- lative inaction for its compulsory isolation policy from constitution. Thus there is a gap regarding the process sions were huge political and legal controversial issue 1996. Judicial administration is the public office of itself, and how its weakness may affect its viability. The in Thailand. This paper aims to provide the historical keeping the human and the material structures of the Chilean case may be of interest insomuch as it would and legal background of these constitutional contro- courts, and maintaining rational and efficient operation be one of the rare occasions where a Latin-Ameri- versies, to review the decisions of the Constitutional of the judicial system in order to exercise judicial power. can country enacts a new Constitution under a fully- Court and its effect, and to critical analyse them. It includes internal control, administration of personnel fledged democratic rule. Moreover, Chile’s regional budget negotiation, and design of the judicial system. prestige as a stable and relatively prosperous democ- Because of this nascent period of the judiciary un- racy may turn its constitution-making experience into der the Japanese Constitution, the Supreme Court’s an attractive alternative to the “Bolivarian model” that power of administration was too much enhanced in has dominated the Latin-American context during the terms of the individual judge’s independence and last decades. some cases emerged. Neliana Rodean: People Amendments’ Power Shucheng Wang: Guiding Case System and the within unconstitutional amendment processes Expansion of Supreme Court’s Legislative Au- John Locke’s idea that a constitution should be thority in China sacred and unalterable form and rule of government Given the absence of case law in China, the Su- did not find followers in the modern time. Constitutions preme People’s Court (SPC) has recently established usually contain rules about constitutional amendments the guiding case system in 2011. In comparison, the and sometimes people could be called to approve any guiding case mechanism operates in a different way constitutional change. But as demonstrated, demo- from that of other jurisdictions as only the SPC can cratic constitutions undermine people involvement in select guiding cases which have a guiding force in the constitutional amendment processes. The paper the sense that the lower courts should refer to them aims to analyze the role of the people within the theory when deciding similar cases. Contrary to the general of unamendability. On the one side, it seeks to answer assumption that guiding cases can be taken by judges whether the constitutional procedure enable people as useful guidance, this article reveals that, although to entrench good or bad rules and institutions, as well the guiding case system intends to treat like cases as the features of unamendability clauses which limit alike, the judges seldom refer to them in practice due the people participation in those processes. On the to the limited number of the guiding cases selected other side, the paper, the serious constitutional law

Concurring panels 306 Concurring panels 307 188 criminal Law Competences of Irene Wieczorek: The legitimacy of EU crimi- without an AFSJ legal basis? Ultimately the answer 189 legal Problems in Europe the European Union: A Quest nalisation: the rise of a normative values-based depends on whether criminal law is special, or an or- for Legitimate Foundations rationale dinary policy among other EU policies. The aim of this paper is to analyse the EU ap- Participants Piotr Mikuli The European Union’s competences in the field of proach to the question of the legitimacy of criminal Leandro Mancano: Seeking an Anthropological Arianna Angeli criminal law have always been a matter for debate. It law. More specifically, by resorting to a criminal legal Model behind EU Criminal Law Competences: Adam Czarnota, Michaic has especially been discussed whether there should theory framework, it enquires into the theoretical jus- from Market Criminal to Public Enemy? Padziora and Michaic Stambulski be criminal law competences at all and if so, what the tifications the EU legal order has acknowledged as European Union (EU)’s competences in criminal Kirsty Hughes scope of such competences should be and what type legitimating the resort to harmonised definitions of law as now outlined by the Lisbon Treaty are perfectly Micaela Vitaletti of legislative instruments would be most appropri- crimes as a legislative strategy. It challenges the idea consistent with the coming into being and develop- Moderator Arianna Angeli ate. Now that the Lisbon Treaty provides for a body that only an effectiveness rationale (i.e. an enforce- ment of EU criminal law. They establish the importance Room 8B-3-49 of express competences in the field of criminal law ment-based rationale) has guided institutional and to fight major criminality threats with cross-border di- (regarding cross-border cooperation harmonization legislative developments in the context of EU criminal mension, jointly with the need to resort to criminal law and enforcement agencies), the time is ripe to evaluate law. It takes an historical perspective looking at the for achieving higher effectiveness with Union norms. Piotr Mikuli: Toward a diffused judicial review the foundations of these competences. In this panel, evolution of competence definitions from Maastricht This paper investigates whether EU criminal law com- system in Poland? four speakers take different angles to reflect on the to Lisbon, and at policy documents (multi-annual pro- petences are built upon a specific model of human In the paper, the author will consider the possibility current foundations of EU criminal law competences. grams, and ad hoc criminalisation policy documents), being. The hypothesis is that the Union approaches of developing a diffused judicial review of legislation in The panel has a twofold aim. First it discusses the which interpreted them. It tests the weight given to the wrongdoer mainly as a homo oeconomicus coun- Poland in the context event of the constitutional crisis. foundations of the current competences. Secondly, the enforcement rationale (EU criminalisation used tered through a strategy mostly inspired by security Several legal scholars in Poland, especially a number the panel further enquire into what extent would the to ensure the enforcement of EU law, or of national demands. The hypothesis is tested in three scenarios: of constitutional lawyers, so far have been rejecting the EU constitutional framework, as well as the political criminal law in cross border cases) and the normative EU substantive criminal law; judicial cooperation; EU right of ordinary courts to decide on the constitutional- context, allow to go beyond the current competence rationale (EU criminal law as an expression of a val- citizenship. The conclusion reveals that starting with ity of statutes. The situation radically changed when at definitions, in the sense of alternative foundations that ues-based criminal policy). It concludes that the latter the adoption of the rational agent as the main anthro- the end of 2015, the crisis around the Constitutional may increase the legitimacy of EU intervention in the normative, values-based rationale has progressively pological model of criminal, EU law (at primary and Tribunal broke. In the paper, the author will appraise area of criminal law. The speakers adopt a diversified gained more importance over time, and it positively secondary levels) regards the offender as a public the hitherto case law of courts (mainly the Supreme number of approaches, ranging from EU constitutional evaluates this trend as being more consistent with enemy that needs to be countered through tight state Court and the Supreme Administrative Court) and will law to criminal legal theory. They take into account the identity the EU has set for itself as a ‘fundamental control and repression. argue that a model of diffused judicial review in Poland various sources, including CJEU case-law on how rights sensitive’ kind of supranational organization can theoretically be accepted with reference to the competences have been interpreted. (see Article 2 TEU). Ester Herlin-Karnell: Discussant ‘doctrine of necessity’. This doctrine would legitimise courts to strike down statutory provisions in a concrete Participants Jannemieke Ouwerkerk Samuli Miettinen: Choice of legal bases and EU Maria Fletcher: Discussant case on the grounds that the tribunal is incapable of Irene Wieczorek criminal law: Is criminal law special? acting in accordance with the constitution. Ordinary Samuli Miettinen Conferral is at the heart of EU constitutional law. judges may encounter many practical problems. Leandro Mancano It is expressed in EU legal instruments by a specific These include, for example: 1) how to rule on a case if, Ester Herlin-Karnell reference to a Treaty article or other formal legal basis as a result of eliminating an unconstitutional provision Maria Fletcher for the relevant instrument. As the CJEU puts in its by a court, a legal loophole arises; 2) what to do if the Moderator Ester Herlin-Karnell case-law, ‘the choice of legal basis is of constitutional Tribunal and an ordinary court disagree on the con- Room 8B-3-39 significance’. But often this decision involves a choice stitutionality of a suspicious provision; 3) how a judge between several plausible alternatives. This is illus- should behave when statutory provisions have been trated by the various different express legal bases eliminated from the system of law by the tribunal and Jannemieke Ouwerkerk: Rethinking EU criminal relevant to EU criminal law. The choice matters. Some a court still questions the tribunal’s legitimacy to act. law competence: Is the internal market-ratio- allow only directives, thus precluding directly appli- nale still valid? cable criminal law as a matter of EU institutional law. Arianna Angeli: Selection of the judges of the As from their very coming into existence in the 1992 Others allow Member States to in practice opt out, constitutional courts and rule of law. The cases Maastricht Treaty, the European Union’s criminal law either because of Protocol 21 and 22 arrangements, of Poland and Slovakia competences closely relate to the EU’s original aim or because they could invoke an ‘emergency brake’. It The rules for the selection of constitutional court’s of establishing a common market in which the free- has even been argued by some that criminal law could judges ensure the independence of the organ in ex- doms of goods, capital, services and persons must be continue to remain an ancillary element of proposals ercising its functions of constitutional control. Even if ensured. This paper analyses to what extent internal based entirely outside the AFSJ, such as Article 33 on European countries have opted for different models of market-considerations still shape the current crimi- customs cooperation or Article 325 on fraud against constitutional justice, many of them have experienced nal law competences of the European Union (such as the EU interests. This paper discusses the prospects problems in this field, seriously impairing the ability harmonisation competences and competences in the of a choice of legal basis where Article 83 is not cited. of the courts to perform their activity. Recent crisis field of cross-border criminal justice cooperation) as It argues the case-law of the Court of Justice is in in Poland and Slovakia – which will be considered as they are laid down in the Lisbon Treaty. Moreover, it will favour of such a solution, but that there is evidence case-studies – have once again shown to what extent be discussed whether, from a normative perspective, of sufficient opposition from Member States that this the lack of consensus among the political forces in the internal market-rationale is still a convincing one solution is not currently a realistic prospect. Finally the the procedure for the selection of the judges of the for EU action in the field of criminal law, or whether the paper evaluates proposals that failed and that have constitutional courts could endanger the entire con- 2017 European Union demands for alternative founda- been recently passed – could the institutions have stitutional system, and the respect of the principle tions to underpin a legitimate EU criminal law. positioned EU criminal law as part of an instrument of rule of law in particular. We will therefore analyse

Concurring panels 308 Concurring panels 309 the evolution of the legislation concerning the selec- is that regardless of what negotiating tools the Gov- 190 eNforcing Cultural Rights – erence to recent case-law and draws comparison tion of the constitutional courts’ judges, as well as the ernment thinks it has at its disposal, Article 8 ECHR Current Challenges and between the approaches adopted by the UN and behaviour of the different political actors involved in clearly precludes deportation. Given that it is beyond Future Perspectives regional human rights systems. the two case-studies, considering also the role of the doubt that human rights law safeguards residency I courts in the transition from the Socialist system and will argue that the current state of uncertainty fostered More than 60 years after the adoption of the Universal Mateusz M. Bieczyński: The Right to Cultural in the development of the new democratic order. We by the Government should itself be regarded as a hu- Declaration on Human Rights (UDHR), international Heritage. Its Enforcement by European Interna- will further evaluate – from a comparative perspective – man rights violation. This provides an opportunity for human rights law has greatly expanded and domestic tional Human Rights Courts (ECJ and ECtHR) how rules on the election of the constitutional judges reflecting upon the role of domestic and international legal orders have accordingly been largely influenced The right to cultural heritage is not explicitly men- could represent an actual safeguard for the overall courts in protecting the individual the extent to which by the transformative impact of international human tioned in either the EU Charter of Fundamental Rights system in managing the political confrontation among courts can and should protect the vulnerable from be- rights standards. Within this setting, the intersection or in the European Convention on Human Rights different forces, and if common standards have arisen ing misled about the nature of their rights, the failings between cultural rights, culture-related issues and (ECHR). Despite this fact, both European Courts – the in the last years at the European level. of political constitutionalism and the extent to which human rights has invited debates over their scope European Court of Justice in Luxemburg (ECJ) and the democratic objections to rights and judicial interven- and enforcement. Despite developments at universal European Court of Human Rights in Strasbourg (EC- Adam Czarnota, Michaic Padziora and Michaic tion fail in the context of migrants. and regional level, there is still ambiguity as to how tHR) respectively – mention in their case-law cultural Stambulski: Constitutionalism and the Politics to source culture within human rights law and how heritage in the context of human rights. Usually, but of Conflict. The Case of Poland Micaela Vitaletti: Anti-discrimination principles to guarantee the universality, interdependence and not singularly, it is invoked by the ECtHR as a collective In 2015, a constitutional crisis broke in Poland. Of- and European Court of Justice indivisibility of human rights while acknowledging that empowerment – limited to the ‘cultural property right’ ficial reason was conflict between former and newly Hannah Harendt once wrote that only the principle a variety of cultural issues come into play in relation of an individual (cases: Beyeler v. Italy, Ruspoli Morenes elected parties about procedure of electing judges of of equality protects the people from discrimination. to their scope of protection. Moreover, cultural rights v. Spain, Buonomo Gaber & oth. v. Italy, etc.). Similarly, the Constitutional Tribunal. Events quickly escalated, The anti-discrimination law is a key-area to achieve themselves are often conceptualised as too resource- the Strasbourg Court does not mention this right in resolving in government refusing the publication of social inclusion. In this case it will be applied in the intensive and too vague to be justiciable. The aim of the context of individual claims to cultural access and judgments of the Tribunal, the opposition accusing the field of employment law. The proposal aims to ana- the panel is to take an in depth look at the various participation or minority cultural rights. This practice government of a coup, law faculties calling for respect lyze how the European Court of Justice’s case law has challenges and perspectives of the direct/indirect suggests that the ECtHR tends to shape cultural heri- for the rule of law, citizens protesting and gathering in shaped principles and solutions in order to make anti- enforcement of cultural rights. tage rights as a ‘community privilege’. At the same public to read Polish Constitution. Constitution ceased discrimination law effective, with regard to all relevant time the ECJ does not give a strong priority to cultural to be the domain of experts and become a pressing phases (entering into the employment; execution of Participants Kalliopi Chainoglou heritage as an object of state control. The Court rather public issue. It was a subject of many news comments the employment; rupture of the emplyment). The paper Mateusz M. Bieczyński limits the Member State’s national interest in keeping and pub discussions. Symbolically it was the ending will also analyze to what degree domestic case-law do Charlotte Woodhead the cultural good(s) within its own territory, treating this of the post-communist transformation, during which follow european decisions on this matter. Andrzej Jakubowski interest as an obstacle for free trade within the EU. In the authority of the Tribunal was not questioned, and Moderator Kalliopi Chainoglou a similar vein, the Luxembourg Court only seems to it played a leading role in establishing of the rule of Room 8B-3-52 recognize the preservation of cultural heritage within law. Also in other European countries, constitutional its borders in the case of ‘national treasures’ – cultural courts were object of attracts (eg. in Hungary Croa- objects of the highest value. Different definitions of tia). This cases can also be seen as a clash between Kalliopi Chainoglou: Enforcing Cultural Rights: the ‘right to cultural heritage’ in the case-law of both “legal” and “political” constitutionalism. Legal implies The Rebirth of Cultural Human Rights? courts raise at least three questions which will be ana- the possibility of harmonizing conflicting interests in International human rights law does not define lysed in this paper: 1.) is the meaning of the ‘right to society. It requires adoption of politically neutral rules. ‘cultural rights’. In a number of international human cultural heritage’ equal in both legal regimes? (objec- For political constitutionalism conflict is constitutive rights instruments the conservative conceptualisa- tive range) 2.) are the courts congruent in their legal for democracy and any attempt to remove it ends with tion of ‘cultural rights’ encompasses the right to edu- application of the scope of protection of the law on the establishment of hegemony. This generates resis- cation and the right to participate in cultural life, to cultural property rights? (subjective range) 3.) who is tance the outbreak of which we are currently observing. enjoy the arts and to share in scientific advancement the subject of that law according to each court, and The question is, whether this mobilisation is capable and its benefits. In recent years, the transformative what interests are coming to the fore in their decision- of producing stable different from liberal, institutions impact of the international human rights standards making? (axiological aspect). While dealing with these or alternative forms of rule of law? and the increasing awareness raised by interna- dilemmas, the paper will also refer to another aspect tional organisations and international instruments of the problem: the formal ‘normative one’. It refers Kirsty Hughes: EU Nationals Right to Remain in concerning cultural diversity and cultural identity has to the legal framework for the coexistence of both the UK Post-Brexit the Role of the Courts and contributed to shedding light onto the cultural dimen- courts, which partly influences the scope of the right the Failings of Democracy sions of human rights, effectively thus cementing the to cultural heritage in both regimes. On the margin Brexit has left EU nationals in the UK anxious as connection between culture and other human rights. of this investigation another problem will also be ad- to what the future holds. Many have partners, children, International jurisprudence coming from various ju- dressed: is there – according to the jurisdiction of both friends, and employment here, it is their home; and dicial or quasi judicial bodies stands as evidence European courts – any recognized form of a ‘collective they fear it will be ripped away. Instead of reassuring that on the one hand the concept of cultural rights is European cultural heritage’? them the Government has declared that they are a evolving while the scope of human rights is realigned bargaining chip for negotiations, MPs have voted down through the prism of cultural connotations. This in Charlotte Woodhead: Redressing Past Cultural a legislative amendment protecting residency, and EU effect enhances the overall status of cultural rights Injustices and Wrongs: the UK’s Spoliation Ad- nationals have found themselves embroiled in a Kaf- across the human rights spectrum while it brings visory Panel kaesque bureaucratic nightmare with the Home Office, forward the issue of the identity of the right-holder This paper analyses the work of the UK’s Spolia- residency applications are being declined and they are (individual/collective). The paper addresses this shift tion Advisory Panel and places it within the broader being informed that they should leave. Yet the reality from cultural rights to cultural human rights by ref- framework of cultural rights discourse. The Panel was

Concurring panels 310 Concurring panels 311 established in 2000 by the UK government to hear ing inter alia, different means of accessing cultural 191 health and Human Rights by primary level courts result in better and earlier hu- claims from those who lost possession of cultural goods and products. Arguably, it also involves the right man rights protection and provides empirical support objects during the Nazi Era (or from their heirs). The to participate in the decision-making processes with for the insistence of international and apex courts on justification for establishing the panel was the sui ge- reference to the cultural life of a given community. In Participants Ligia Fabris Campos subsidiarity. neris nature of the Nazi Era dispossessions of cultural fact such an interpretation of the content of the right Jan Kratochvil objects from Jewish populations across Europe and to participate in cultural life has been enshrined in Fernanda Farina Fernanda Farina: Policy tug-war: a socio-legal the need to repair past wrongs and injustices. The recent international cultural heritage legal instruments Chun-Yuan Lin reflection about judicial intervention in public broad rationale for the panel can be situated within in terms of consultation governance and information Danielle Rached policy from a case study of healthcare litigation the framework of recognising cultural rights and the sharing perhaps most explicitly in the Council of Eu- Moderator Chun-Yuan Lin in Brazil systematic attempt to eradicate the culture of a group, rope’s Framework Convention on the Value of Cultural Room 8A-4-17 This paper is interested in reflecting about the connected as it was with breaches of human rights Heritage for Society and the UN Declaration on the role of the judiciary in the enforcement of social and and genocide. Current claimants, as heirs of the origi- Rights of Indigenous Peoples. In this regard the pa- individual rights and to what extent such enforcement nal owners, could be seen as enforcing an inherited per will analyse the existing models of participation in Ligia Fabris Campos: The Regulation of Trans* interferes in public policy. It proposes a socio-legal cultural right which has passed inter-generationally. cultural matters available under various international Rights in Brazil reflection about important aspects of public law: the The panel therefore acts as a modern-day forum for regimes and discuss the practice of their realisation The objective of my proposal is to analyse trans- role of courts in modern democracies, the amount of hearing cultural claims based on remedial and redis- including possible challenges and shortcomings. The genders’ rights in Brazil because of the degree of power granted to judges via constitutionalisation of tributive justice. A counter-argument might be that paper will also refer to the theory of Global Adminis- complexity and controversy regarding transsexuals rights, the influence of the judiciary in public policies, the Panel acts as arbiter for rejuvenated property trative Law (GAL) in order to better explain and sub- nowadays within civil society legislature and judiciary. and the distribution of powers in modern democracies. claims for cultural objects. The Washington Confer- stantiate these observations from the point of view of I maintain that the concept of ‘harm to self’ in light I address those topics from an in-depth single case ence Principles on Nazi-Confiscated Art, 1998 focused governance rather than the more orthodox definitions of gender studies’ perspective can be the key to un- study about healthcare litigation in Brazil. The Brazilian on restitution of confiscated property; frequently the of justiciability or judicial enforceability of rights. derstand the contradictions, setbacks and advance- judiciary has ruled on over 300 000 cases of individu- discourse surrounding the Panel’s work is couched in ments as well as to question and criticise transgen- als asking for drugs and treatments not covered by the terms of returning property to the ‘rightful owner’ and ders’ law and rights. My presentation is divided into public healthcare policy. The rate of success of such the Panel’s Terms of Reference frame claims based three parts: Firstly, I will present the main concepts cases has been so high that over 60% of São Paulo’s on lost possession. No similar panels exist in the UK of gender studies that will be the basis of this work. health budget has been compromised with drugs/ to deal with claims for other disputed cultural heritage Secondly, grounded on the interpretation of this no- treatment granted via judicial decision – outside the objects. If the work of the Panel can be construed as tion and according to the concepts of gender studies, scope of the healthcare policy. All decisions based providing a place where attempts are made to redress I will analyse the legislation and the jurisprudence in on the interpretation that the Brazilian constitution past injustices of both human rights and more widely relation to transgenders’ rights in Brazil. Finally, as it promises universal health to every citizen. To sub- cultural rights, it has the potential to act as a model will be shown, I will point out a series of tensions within stantiate the discussion, I explore the results of 50 for future claims processes. Both structurally and pro- the processes of recognition of transgenders’ rights qualitative interviews I conducted with litigants, judges, cedurally, the work of the Panel has the potential to in this country. These points will lead me to conclude lawyers, and bureaucrats in Brazil over 3 months which hear more broadly framed collective claims whose that the reinterpretation of the meaning of the surgery indicates a true policy tug-war among powers and an substantive basis is the enforcement of cultural rights. between harm and beneficence was essential to its institutional trust crisis in the country. transformations. Andrzej Jakubowski: Enforcing the Access to Chun-Yuan Lin: AIDS on trial: Empirical Study Cultural Heritage through Participation and Co- Jan Kratochvil: Subsidiarity of human rights in on Cases Involving People Living with HIV/AIDS Management in Cultural Matters practice: the use of human rights by first and (PLWHA) in Taiwan This paper deals with the enforcement of cultural second instance courts in the Czech Republic Since its first legislation in 1990, HIV Control Act rights, analysed through the prism of the concept of The principle of subsidiarity is viewed as the cor- of Taiwan has evolved significantly because of de- procedural justice, defined as fairness and promotion nerstone of protection of human rights. It is the pri- mocratization, globalization and the improvement of of organizational and institutional changes built on the mary responsibility of states to ensure that human medication on HIV/AIDS in Taiwan. The HIV Control Act principles of participation, voice, and transparency. rights are respected and protected on a domestic today has evolved as “HIV Control and Patients’ Rights Accordingly, it refers to the concept of participation level and any international protection mechanism is Protection Act” and provides anti-discrimination doc- as one inherently linked to both culture and proce- only supplementary. Taken to the domestic level also trine. However, legal progress does not necessarily dural justice. The right of everyone to participate in apex courts in a country provide only subsidiary pro- eliminate social stigma against PLWHA. How courts cultural life, as provided in Article 27 UDHR 1948 and tection of human rights, which must be protected by make decision in the dynamics between the progress Article 15a ICESR, is fundamental for the realisation lower level courts. Yet little attention has been focused of medication, risk on public health, and the rights of of all cultural rights that enable the exercise of other so far on how human rights are in fact applied by the PLWHA determines the social reality of PLWHA. This human rights. In fact, it is enshrined in the vast human primary level of court systems as opposed to apex article reviews all courts decisions involving PLWHA rights instrumentarium. According to the UN Com- courts. The paper chooses the Czech Republic as a in Taiwan since 1996 in order to reveal the situation of mittee on Economic, Social and Cultural Rights, as case study and by empirical analysis of hundreds of PLWHA and the courts’ attitude toward them. Statistics expressed in its General Comment No. 21, this right decisions of Czech first and second instance courts indicates a systematic exclusion of PLWHA from family may be exercised both individually and collectively. it maps the use of human rights at the primary level and social institutions, which is consistently endorsed Yet it may be subject to various societal contexts and of the court system in that country. The paper also by the courts. This article further examines courts’ rea- cultural practices. It is widely recognized that this right confirms a hypothesis that if primary level courts use soning and finds that Courts tend to ignore the rights presupposes equal and free access for all to a variety in their reasoning human rights it is less likely to result of PLWHA, wrongly interpret the approaches and risk of cultural resources. Moreover, it also refers to distinct in a finding of a violation of a human right by an apex of AIDS infection, and therefor exaggerate the threat participatory forms of cultural manifestations, includ- court. It thus shows that human rights arguments used of HIV/AIDS to public health. The courts didn’t follow

Concurring panels 312 Concurring panels 313 WHO’s standard despite noted. The article concludes 192 comparing Supranational and to discuss possible solutions along the lawsuit, be- 193 constitutional that courts exclude PLWHA form “normal” society in Constitutional Courts fore the ruling. The Brazilian Constitutional Court can Interpretations II the name of public health, yet may unconsciously in- sometimes deliver a provisional ruling that neutral- herit the legacy of stigma against AIDS and consis- izes a position of superiority that benefits one of the tently cause discrimination against PLWHA. Participants Ranieri Lima-Resende litigants, which hence ensures more receptiveness to Participants Roman Zinigrad Vanice Lirio do Valle dialogue. The three strategies present different levels Jędrzej Maśnicki Danielle Rached: World Health Organization and Karen J. Alter of efficacy. The simple request for legislative delibera- Evan Rosevear the search for accountability: a critical analysis Federico Fabbrini and tion is usually received with inertia as response fully Matthias Klatt of the new framework of engagement with non- Miguel Maduro interrupting the intended “dialogue”. The legislative re- Moderator Matthias Klatt state actors Moderator Karen J. Alter version of prior judicial decisions fails in overcoming an Room 8A-4-47 The article probes the origins and content of the Room 8A-4-35 enhanced justification burden brought by the Court’s Framework of Engagement with Non-State Actors initial reproof. Once again, there will be no dialogue.The (FENSA) of the World Health Organization (WHO), ap- ex-ante dialogical intervention seems to be the most Roman Zinigrad: Symbiotic Interpretation: proved on May 28, 2016, at the 69th World Health Ranieri Lima-Resende: Submajority Rules for effective solution, since the inherent rationale of the Reading Constitutions Through National Laws Assembly, which established different rules of col- the Brazilian Supreme Court: A Counterbalance Judiciary bound by the need to motivate its decision in (And Not Only the Other Way Around) laboration to four categories of actors: nongovern- to the Presidency’s Discretionary Powers to Set a rational way brings that same imperative to the dia- Many are the methods of constitutional interpre- mental organizations (NGOs), private sector entities, the Institutional Agenda logue between the parties helping to find consensus. tation but none of them draws on primary legislation philanthropic foundations, and academic institutions. Due to the monocratic power of the Brazilian Su- as having any weight in understanding constitutional Applying the findings of International Legal Theory and preme Court’s Presidency to set the agenda of the Karen J. Alter: National Perspectives on Inter- provisions. The top-down normative hierarchy of laws based on extensive documentary research, we sought plenary sessions autonomously there are notorious national Constitutional Review: Two Optics leads not only textualists but even disciples of purpo- to determine whether FENSA is an appropriate ac- problems connected to the second order risks which I use the term international constitutional review sive and subjectivist methods of interpretation (e.g. countability mechanism according to four functions of are focused on the absence of predictability and the to refer to situations in which international courts (ICs), “Living Constitution”) to disregard primary norms as a accountability: constitutional, democratic, epistemic, low level of transparency. According to the premise in essence, conduct constitutional review. More inter- potential source of constitutional interpretation. Laws and populist. The article concludes that there is a risk that the definition of the institutional agenda con- national courts today conduct constitutional review are hence interpreted in light of the (already) inter- of the prevalence of the populist function at the ex- tains some immanent and unavoidable degrees of than most legal scholars and practioners realize. In- preted constitution not vice versa. I argue, however, pense of the accountability potential that could result discretion it is essential to provide the Court with the ternational law scholars tend to focus on international that at least as to the constitutional right to educa- from the better use of the other three accountability compensatory mechanism of deliberation aimed at courts (ICs) as constitutional arbiters of international tion, the interpretive effort has to be symbiotic. The functions. protecting the pre-decisional phase of its judgments institutions, ensuring that international institutions do right to education – especially as far as the rights of from irrational behaviors. In an interesting analytical not exceed their authority and that they are legally ac- children, as opposed to parents and state are con- hypothesis Adrian Vermeule sustains that some insti- countable. This paper focuses on international courts cerned – has achieved a constitutional status in most tutions adopt submajority rules to deliberate proce- ICs when they review national respect for international liberal democracies only in recent decades. As such, dural and preliminary questions including for setting law. I define two optics through which national actors the determination of its scope and substance cannot their institutional agendas. This empirical pattern can view international constitutional review. One optic sees be made without relying on national primary laws. be justified through two good normative purposes: international constitutional review as a luxury good, Educational policies reflect the cultural and social submajority rules may reinforce the accountability of and the other as a failsafe. I explain how national cul- structures of a given regime, they embody historical the majoritarian groups and promote transparency tures of constitutional obedience rather than textual compromises and national visions. Interpreting the within the deliberative process. The Rule of Four ap- claims determine which optic is used. constitutional facets of this right without first study- plied in the U.S. Supreme Court for instance, estab- ing its manifestations in primary law renders judicial lishes a functional mechanism whereby the Court’s Federico Fabbrini and Miguel Maduro: Suprana- review largely disconnected from the society that is agenda can be modified by vote of at least four out tional Constitutional Courts subjected to the constitutional text. To be sure, I do of nine Judges. Theoretically, the gain derived by the The paper seeks to identify a typology of suprana- not claim primary laws of education should be an plurality of participants may improve the institutional tional constitutional courts within the broader genus exclusive interpretive source, but a binding source dynamic of the Court, and the internal communication of international courts. It outlines six criteria that it that must contribute to constitutional interpretation, among the Judges tends to intensify in proportion regards as necessary for an ordinary international tri- nonetheless. to the improvement of the bargain capability of the bunal to become a supranational constitutional court minorities within the Court. and it discusses this in light of the experience of the Jędrzej Maśnicki: The autonomous interpreta- European Court of Justice. tion method as the judge-made instrument to Vanice Lirio do Valle: Institutional dialogues prevent renationalization strategies in the Brazilian Constitutional Court The paper argues that the “autonomous interpreta- The application of “institutional dialogue” by the tion” is still a vivid concept which allows the CJEU to Brazilian Constitutional Court has been approached deepen the EU integration. Therefore this judge-made in different ways over the years. Two procedures in- interpretative instrument challenges the renationalisa- volve an ex post facto answer from the litigant politi- tion tendencies within the EU. Moreover, the autono- cal branches. The Court will either ask for a specific mous interpretation as the CJEU’s concept can be deliberation from the constitution violator (usually the compared to the analogous concepts, developed by parliament) in a set amount of time; or admit as a po- the Member States’ constitutional courts. Here, the litical answer, the legislative reversion of a prior ruling question remains: who has the authority to deliver the through new legislation or constitutional amendment. final legal interpretation of the disputed terms and The Court can also, as a third strategy, call the parties which court (the CJEU or the Constitutional Court of

Concurring panels 314 Concurring panels 315 a Member State) has more interpretative power to 194 constitutional Review III Poland, Turkey and the USA and attempt to explore cial and ethnic minorities, the role of courts should shift persuade other courts and tribunals, in particular the differences and communalities in the approaches of from substantive efforts to protect these minorities as administrative courts? judges to counteract political pressure to unduly limit the objects of constitutionalism to process efforts that Participants Margit Cohn human rights. The paper will also look at judicial inde- enable these minorities to protect themselves as the Evan Rosevear: Judicial Interpretation of Trans- Eva Maria Belser pendence and contemporary threats to it and compare enlightened subjects of self-governance. This paper formative Constitutions: Social Rights in Brazil Daniel Bogea the different approaches of judges to deal with the suggests that a majority-minority US democracy is a and South Africa Franciska Coleman counter-majoritarian dilemma. In doing so the paper tipping point at which judicial review must promote the Courts in authoritarian regimes tend to adopt for- Dean Knight will pay particular attention to the question whether realization of minority political autonomy or become a malist approaches to constitutional interpretation that Joáo Archegas international human rights guarantees – and other source of further diminution in minority rights. It uses understand the judicial role as the faithful application Moderator Dean Knigt forms of transnational constitutionalism – play a role the empowerment and capability theories of Paulo of “the law”, independent of moral considerations. Room 8B-4-03 in the dynamics of judicial review and in the effectivity Friere and Amartya Sen to propose an approach to This tends to minimize direct political interference in of human rights protection. judicial review centered upon equal capacity for self- judicial matters while permitting doctrinal coherence governance. This approach applies Sen’s concept of and a degree of professional credibility. Provided the Margit Cohn: Judicial Review of Executive Pow- Daniel Bogea: Judicial review of executive de- “basic capability equality” to minority citizens’ experi- legitimacy of the regime is not directly challenged, it ers: On Trump Brexit and Other Sundries crees in Brazil: coordinate construction of the ences of self-governance and advocates making self- can also allow the courts to circumvent political will in The article addresses the perennial question re- constitution in coalitional presidentialism governance a justiciable positive liberty, measured in individual cases. Initially adopted for strategic or prag- garding the democratic legitimacy of judicial review The article argues that the role of the Brazilian Su- terms of equality and identified political capabilities. matic reasons, these approaches become embedded through analysis of recent decisions in two affairs con- preme Court in reviewing executive decrees is part of in a jurisdiction’s “judicial culture” – internalized norms cerned with politics of the highest degree. The British a coordinate construction, in which each branch takes Dean Knight: The Meta-structure of Anglo- about the role of the judiciary and appropriate forms Supreme Court ruling in Miller (January 24 2017) was part in a complex dialogue that is vital for the relative Commonwealth Judicial Review: Scope of legal reasoning – the correct interpretive method. concerned with a challenge to the legality of the Brit- stability of the coalitional presidentialism installed Grounds Intensity Context Once this occurs, these approaches are difficult to ish government’s decision to withdraw from the EU; by the 1988 constitution. The court’s performance is Drawing a balance between vigilance and restraint dislodge; if left in place they can limit the ability of the the majority found for the applicants. The question of characterized by a selective assertiveness, through is a fundamental feature of judicial review of admin- judiciary to act as a protector of constitutional guaran- the constitutionality of American President Trump’s which it positions itself as a check on the Executive, istrative action in the Anglo-Commonwealth. While tees. Using the constitutional transformations of Brazil executive order regarding non-citizen entry to the while also encouraging the deepening of the delib- this modulation of the depth of scrutiny is ubiquitous, (1988) and South Africa (1997) as illustrative examples, US is being debated in courts. At this time, the Court erative role of Congress. Nevertheless, the court is it takes different shapes and forms. This paper ex- I argue that (i) the emergence judicial formalism is of Appeals for the 9th Circuit upheld the temporary continuously constrained by the political environment, plores the different meta-structure employed in ju- attributable to prior political context rather than an restraining order granted by a Federal district court retreating strategically when it does not perceive suf- dicial review in England, Canada, Australia and New association with a particular legal family, and (ii) the (February 9 2017). Proceedings on the constitutionality ficient political support. Drawing evidence from five Zealand over the last 50 years or so to modulate the application and effects of transformative constitutional of this executive order and the TRO are still ongoing case-studies that encompass decisive moments for depth of scrutiny. Four organisational schemata are provisions, particularly social rights, are heavily influ- (updates forthcoming). Both affairs seem to be ex- the shaping of executive decree power, the descrip- synthesised: scope of review (multifarious formalistic enced by the structure of the judiciary – particularly the pressions of bold judicial decision-making in areas tive claim is at odds with previous scholarship which categories), grounds of review (simplified and gen- method of selection and promotion size, and the cen- traditionally directed by executive unilateral power: either (i) describes the court’s role as minor, due to a eralised set of grounds), intensity of review (explicit tralization of interpretive control – post-transformation. the British conduct of foreign affairs under the Royal resistance to defy the executive power, in a slightly calibration of the depth of scrutiny), and contextual prerogative, and the issuing of executive orders by redefined version of the dahlsian argument, or (ii) pic- review (unstructured or instinctive overall judgement). Matthias Klatt: Constitution-conform Interpre- US presidents. Whether these judicial decisions have tures a complete preponderance of the court over the Drawn from the changing language and format of de tation changed the balance between executive autonomy other branches, coining the term supremocracy to Smith’s acclaimed textbook, these schemata allow Many legal systems contain an explicit or implicit and its restraint by courts and whether such a change illustrate the current state of affairs. I attribute these us to understand the key aspects of the supervisory obligation to interpret the law in accordance with the is to be welcomed are matters for debate. The analy- different results to two major methodological flaws: task without getting lost in the doctrinal quagmire and constitution. Yet what this obligation means in the sis, addressing the future impact of those decisions (i) the underdevelopment of a theoretical perspective controversial lexicon that often comes with discus- practice of legal argumentation differs widely be- as possible accelerators of judicial aggrandizement, that incorporates the role of the court for the study sion of variable intensity deference and the like. The tween various legal systems. This paper engages in is linked with two bodies of research: constitutional of coalitional presidentialism, and (ii) the absence of focus on the meta-structure also allows us to more comparative analysis and addresses the problem of history and dialogue theory as networked decision- detailed qualitative studies that delve into the political clearly identify the virtues of modulating the depth of how constitution-conform interpretation can be justi- making. context in which the court operates. scrutiny in different ways. Fuller’s rule-of-law-based fied. It discusses three different lines of argument for criteria – generality, public accessibility, prospectivity, the legal-theoretical basis of constitution-conform Eva Maria Belser: Revisiting the Counter-ma- Franciska Coleman: From victimization to em- clarity, non-contradictio, non-impossibility, stability and interpretation (the assumption of constitutionality, the joritarian Role of Courts: The Judicial Protec- powerment: Updating American judicial review congruence – are proposed as a useful way to assess unity of the legal system, and the principle favor legis) tion of Human Rights in Times of Popular Pres- in response to changing demographics the efficacy of the different schemata and inform de- and analyses the merits of the three most important sure not to do so One of the key disputes among US constitutional- bates about the nature of the courts’ supervisory task. counter-arguments against constitution-conform In a number of countries constitutional courts pro- ists is whether the constitution is a static document or interpretation (its purported missing legal basis, its tecting human rights are subjected to political pres- one that evolves over time. A similar question could be Joáo Archegas: The constitutionalization of missing interpretative character, and the competence sure. Courts taking a counter-majoritarian stance in asked of courts – does the protective function of courts power: how the Brazilian Supreme Court is rais- problem). Overall constitution-conform interpretation order to protect human rights of citizens are more and change as democracies mature and become more ing the stakes on juristocracy is defended as a valid and powerful legal argument. more frequently challenged by parliaments presidents diverse? This paper suggests that the answer is yes, Following Hirschl’s study in Towards Juristocracy, and popular votes. This paper will revisit the counter- and that the substantive/process distinction in con- this paper discusses the role of the Brazilian Supreme majoritarian role of courts and examine how the judi- stitutional interpretation should be viewed as a con- Court in the judicialization of politics. In order to ana- cial protection of human rights evolves under increas- tinuum which reflects the changing role of the courts lyze how the court is facing its own protagonism in ing popular pressure not do so. It will look at recent as a democracy matures. This paper argues that as US the political arena it’s necessary to point out Justice court cases in countries such as Switzerland, Hungary, society outgrows its de jure discrimination against ra- Barroso’s view on the matter. Barroso is a judicial re-

Concurring panels 316 Concurring panels 317 view enthusiast and has recently defended a peculiar 195 The European Court questionable whether the Court seriously considers set in such a way to meet both the requirement of position in his paper Reason without vote, stating that of Human Rights: the case law of the ECtHR. It explicitly refers to the respecting individual’s rights and that of protecting the Court must “interpret social demands, the spirit History and Evolution II ECHR and/or to the case law of the ECtHR in a very them. In other words, an individual must be given of its time and history’s path.” By assuming this re- small number of cases and when the Court does refer, autonomy the power to decide about himself, but at sponsibility, the Court would have the legitimacy to quite often, it does that in a mechanical and superficial the same time efficient protection of his rights must “push history forward” and work as a representative Participants Marta Maroni way. The paper provides certain explanations for such be guaranteed. Thus implementation by the State of (and not only counter-majoritarian) institution. Such an Marija Milenkovska Court’s position, thus contributing to the debate in the positive protective obligations requires balancing the ambitious purpose is indeed being practiced by other Marco Bocchi literature about the dialogue between domestic and values underlying the colliding rights and freedoms. Brazilian Justices and reflects the prominence given Monika Florczak-Wator international courts. Its results are relevant not only to Although the authors of the Convention did not intend to the courts in the era of the new constitutionalism. Chris Wiersma Macedonia but also to the European system for human it to cover private relations, the ECHR has employed Nonetheless, the constitutionalization of rights has not Moderator Marta Maroni rights protection in general because they concern a a variety of methods to apply the Convention to the propitiated structural changes in the country’s political Room 8B-4-09 country which has been insufficiently studied. relations between private parties. In my paper, I would (and economic) reality. An example is a recent ruling like to provide an overview of the ECHR’s positive ob- given by the Supreme Court that upheld a new federal Marco Bocchi: Judicial Creativity and Bind- ligations case law. However, the aim of my paper is legislation known to smother smaller political parties Marta Maroni: A Court gotta do what a Court ing Precedents: the European Court of Human to go beyond the descriptive level. It aims to provide and favor the political elites. Here lies the importance gotta do? A critical analysis of the European Rights as a Common Law Court insight into the ECHR’s application of the concept of of this work: can history really be on the “right track” Court of Human Rights and the liability of Inter- The international legal system introduced by the positive obligations by bringing structure in and distill- and should the Judiciary be the protagonist to lead net intermediaries European Convention on Human Rights (ECHR) is ing general principles from the case law of the ECHR. the people in its direction? Up until now, the Court is Much of the current debate on Internet gover- inspired by the same general principles of law that just pushing forward the “right interpretation” of the nance focuses on how to regulate Internet interme- characterize civil law legal systems. Indeed, its most Chris Wiersma: Judging the lawfulness of con- Constitution that works in favor of the political elites. diaries. The topic is very complex because a wide prevalent feature is that its core principles are codified duct in criminal journalism practices by the Eu- range of fundamental rights may be affected by the into a referable framework that serves as the primary ropean Court of Human Rights activity of these actors. Choosing what type of regu- source of law. However, some recent developments Press Freedoms and Duties Responsible Journal- lation should be adopted is related to which kind of in the jurisprudence of the European Court of Human ism Criminal Law Judging European Human Rights Internet the law should contribute to design. In other Rights (ECtHR) show the Court’s tendency to act more Strasbourg Court/CoE Judicial Systems words, the main questions are the following: a) should like a common law court, substantially shaping the law the law safeguard the idea of an open-ended Internet of the ECHR through its judicial creativity. This trend is or should it create a more disciplined but less free particularly clear in the context of systemic violations environment? b) Should Internet intermediaries play of the Convention, with the introduction of the pilot- a more active role in dealing with wrongful activities judgment procedure (PJP). In the proposed paper, I disseminated through their infrastructure? Or should argue the legitimacy of the ECtHR to act like a common they still be treated as passive and neutral? The recent law court, building the analysis on the creation and case law of the European Court of Human Rights on evolution of the PJP. Since this single decided pilot the liability of internet intermediaries for (unlawful) user case recalls the need to insert general measures, it generated content helps to shed light on the delicate becomes a wide precedent for similar applications, relation between law and information and communica- as it happens for the common law courts’ judgments, tion infrastructures. This presentation shows how the under the principle of stare decisis. Far from being ad- answer to these issues is inherently connected to the visory the PJP creates law and new obligations on the performativity of law as such. respondent State in the Convention system. Likewise, in common law systems, courts have the authority Marija Milenkovska: European Court of Human to make law where no legislative statute exists, and Rights and National Courts in the New Democ- statutes mean what courts interpret them to mean. racies: The Macedonian experience Nevertheless, legitimacy is not absolute and depend The paper discusses the relationship between the upon States’ acceptance of new obligations stemming European Court of Human Rights (ECtHR) and national from this trend. courts in the new democracies through analysis of the Macedonian experience in this regard. The ECHR is Monika Florczak-Wator: The Role of the Euro- part of the Macedonian internal order and is above the pean Court of Human Rights in Promoting Hori- laws. As the Constitutional Court has established the zontal Positive Obligations of the State interpretation of the constitutional provisions should During the last fourty years in a number of cases be based on the general principles on which the ECHR the European Court of Human Rights (ECHR) has been lies and which it promotes. However, does the Court developing under the European Convention on Human interpret them in the light of the Convention? Does it Rights the concept of horizontal positive obligations refer to the case law of the ECtHR in its decisions? of the State. In line with this concept, State authorities How the case law of the Strasbourg Court is integrated are obliged to intervene in relations between private in its decisions? These questions are the main con- persons (horizontal relations) to the advantage of the cern of the paper. In order to answer them, the paper weaker party and, at the same time, to the disadvan- analyses the Constitutional Court’s decisions reached tage of the stronger one. Undoubtedly, the limits of in the period 1998-2015. The analysis revels that it is State interference with horizontal relations must be

Concurring panels 318 Concurring panels 319 196 federalism and the contrast is more of a challenge: what lessons can we usurp the powers of municipalities through regulation. 197 The Migration of Judicial Role draw from the US case for the transnational ECtHR Finally, while indicating some grey areas this paper Constitutional Ideas system? Are the two comparable? After all, one is a reflects on why the Court has been successful in its nation-state democracy; the other a pluralist trans- custodianship role. The relevance of this paper is that Participants Eugene Schofield-Georgeson national system. And provided that we actually come it fits into several areas of focus of the Conference as it Participants Danielle Ireland-Piper Dominik Rennert to the conclusion that in a number of relevant points highlights the role of the apex Court in South Africa in Anat Scolnicov Catherine Powell the two are in fact comparable, the follow-up questions defining the relationship between different organs of Han Liu Oliver Fuo are: Can we perhaps make the US approach work in state. It shows how domestic courts interpret and en- Luis Claudio Martins de Araujo Maxim Sorokin Europe? Maybe the European courts are already at it? force constitutional provisions guaranteeing separa- Luke Beck Moderator Eugene Schofield-Georgeson And what role does the ECtHR’s margin of appreciation tion of powers between three spheres of government. Moderator Danielle Ireland-Piper Room 8B-4-19 doctrine play in all this? Perhaps it is more than just a It also addresses sub-national aspects of Public Law. Room 8B-4-33 prudential tool of deference and more of a principled tool of judicial “minimalism” in the Sunsteinian vein? Maxim Sorokin: Should the sub-federal con- Eugene Schofield-Georgeson: Federal Consti- What the paper does is try to give an answer to these stitutional justice to check the Constitutional Danielle Ireland-Piper: The Act of State and tutional Strategies for the Localisation of Politi- questions, and to ground that answer in democratic Court of Russia? Abuse of Rights Doctrines: Transplanting Lgal cal Power and pluralist theory. In the Russian Federation, according to the 1993 Controls on State Power This paper explores strategies for localising gov- Constitution, the constitutional adjudication is exer- In international law, the abuse of rights doctrine ernance within the Australian federal constitutional Catherine Powell: We the People: These United cised by the Constitutional court of Russia (FCC), and prohibits States from making use of their rights if to do legal system in an age of increasing centralisation of Divided States by constitutional jurisdictions of the sub-federal enti- so impedes the enjoyment by other States of their own legal power. In the last quarter of the twentieth century A judge has enjoined President Trump’s executive ties within the scope of regional legislation. As the FCC rights. It is a control on the exercise of State power. In centralisation of power has made federalist govern- order, which would have cut federal funds to ‘sanc- was always trying to expand enormously the scope of a domestic context, the principle operates in much ments vulnerable to the anti-democratic influence of tuary jurisdictions’.ù Sanctuary jurisdictions share its constitutional review (as previously in regards to the the same way. For example, a number of civil-law global monetary institutions and markets. Accord- a commitment to limit the use of local resources in federal courts and now in respect to the ECHR’s judg- codes have provisions that prohibit the use of a right ingly, federal governments across the global north implementing federal immigration laws, which infringe ments), the Court has been more and more supported for a purpose other than for which it is intended. The have undertaken systematic programs of deregula- their sovereignty to define local policy and are at odds the centralized and authoritarian approach towards principle, however, is generally found in a private law tion (particularly within labour markets) privatisation with building trust between local law enforcement and the post-soviet Russian public law. However, there are context and in civil law jurisdictions. It is lesser known and a redistribution of public wealth to the wealthi- communities to more effectively reduce crime and still 16 functioning constitutional courts in the Russian in common-law systems or in a public law context. est members of a global elite. The resulting social improve public safety. Using this debate over feder- regions. And if the perspective of the open conflict There are, however, analogous legal concepts. For inequalities have seen financial shocks and crashes alism as a touchstone, my project explores evolving seems hardly possible (for example, in 2013 the FCC example, in Australia, the tort of abuse of process has and have led, most recently, to domestic political ex- notions of who are ‘We the People’ù, not only with confirmed the constitutionality of Chelyabinsk region’s been described as ‘the clearest illustration in Austra- tremism and international isolationism (i.e. Trumpism, regard to the idea of national sovereignty, but also law declared to be void by the Chelyabinsk region’s lian law of what civil lawyers call an “abuse of right”.’ Brexit and ‘Hansonism’ in Australia). In the wake of related notions of popular sovereignty, self-sovereignty, constitutional court following which the regional CC Further, the High Court of Australia has also drawn these failures, this paper suggests that centralising as well as the rethinking of sovereignty prompted by was abolished), the case-law made by the regional upon notions of ‘abuse of process’ in considering the approaches to federal constitutional legal systems the expansion of international law norms and insti- constitutional court contains the multiple examples propriety of an extraterritorial criminal prosecution. In might be rethought in a manner that establishes a tutions. Constitutional law scholars have overlooked when the courts by referencing to the FCC case law the United Kingdom, courts have engaged with the greater ‘geographical rootedness’ of legal power how international law norms have revolutionized the or even international agreements bring forward the in- ‘abuse of discretion’ doctrine in administrative law, within intra-state and local government. Drawing on notion of sovereignty – for example, through the 1648 novative approaches to the constitutional or statutory and the notion of malicious prosecutions in criminal the current German approach to federalism, this paper Treaty of Westphalia, end of colonial rule, and rise of interpretation in the – ´non-political’ – cases. law are also somewhat analogous. In that context, this explores models of federal constitutional governance trade immigration, and human rights. My project will paper considers whether the abuse of rights doctrine that establish clear rules for how power-sharing ar- examine ways sanctuary jurisdictions are responded is capable of “transplantation” into public law and rangements between various tiers of government work to the national anti-immigrant agenda, by re-asserting whether it is useful to courts in controlling exercises in practice. It highlights the success of this approach human rights locally. Rather than assert ‘states’ rights’ù of government power. In so doing, the act of state by comparing constitutional governance in Australia to undermine civil rights, today’s state and local gov- doctrine, which normally precludes courts from con- and Germany particularly in the spheres of industrial ernments are embracing localism to protect human sidering the legality of the actions of foreign states, relations and finance. rights. This project raises novel concerns, examining is also considered in a comparative context. This is a new phenomenon that has emerged not only with done with a view to identifying a relationship between Dominik Rennert: (Quasi-)Federal Court Sys- ‘America First’ policies, but also in Europe with Brexit. exceptions to the act of state doctrine and the abuse tems in Times of Change of rights doctrine. The paper tracks how courts in (quasi-)federal Oliver Fuo: The Constitutional Court as a cus- rights systems deal, and should deal, with social todian of constitutional federalism in South Af- Anat Scolnicov: Fertile soil: legitimacy rational- change. It does so from a comparative perspective. rica: A Local Government Law Perspective ity and constitutional transplantations It first tries to conceptualize how US courts have ap- This paper examines the role of the Constitutional I will submit a full abstract tomorrow. I am submit- proached the issue of homosexuality and same-sex Court in defining and defending the reach of local gov- ting this now so as not to miss the deadline. The pape marriage in the past two decades or so. Following ernment’s autonomy in South Africa. It argues that, as I will submit a full abstract tomorrow. I am submitting Heather Gerken and borrowing from Cass Sunstein, a custodian of South Africa’s constitutional federalism, this now so as not to miss the deadline. The paper asks the paper will explain why the way the courts proceed- the Court has been successful in defending the the what role should constitutional courts play in transpos- ed is an almost ideal-type instance of how a federal autonomy of local government in respect of its original ing constitutional ideas between states. system should indeed react to social change. That fiscal and planning powers, thereby preventing intru- is the easier part of the paper. The second part, by sive attempts by national and provincial government to

Concurring panels 320 Concurring panels 321 Han Liu: From Regime to Law: American Consti- Luke Beck: Unconscious Comparativism: Amer- 198 Pr actical Problems of EU Law far as to imagine that in some cases public entities tutionalism In Contemporary China ican Establishment Clause Jurisprudence in could be protected against private entities such as American constitutional law haunts the consti- Papua New Guinea multinational corporations? Other issues are more tutional imagination in contemporary China. China’s American culture often reaches to the furthest Participants Giacomo Tagiuri theoretical. It is a principle of EU Law that the European reception of American constitutional law occurred corners of the globe and influences the cultures of Sébastien Platon Union is not supposed to interfere with the national in two major phases. The first, which spanned from other, often quite different, societies. The same is Maarten Stremler organisation of powers and in particular in the relation- the 1980s to the early 1990s, understood American true of American constitutional concepts. This paper Marko Turudic ship between the central government and regional or constitutionalism as a particular political regime to explores the influence of American First Amendment Moderator Marko Turudic local authorities/governments. The national Govern- be politically criticized or objectively appraised, with Establishment Clause jurisprudence on the jurispru- Room 8B-4-43 ment is supposed to be an impenetrable middle man the tripartite separation of powers overwhelmingly dence of the Constitution of the Independent State of between these authorities and the European Union. highlighted as a core feature of the American consti- Papua New Guinea, the relevant provisions of which However, if EU Law grants fundamental rights to these tutional-political system. In the second, which began bear no resemblance to the American First Amend- Giacomo Tagiuri: The Cultural Implications of authorities and if they can use them against their own in the late 1990s, a paradigmatic shift from a political, ment. This paper presents a comparative analysis of Market Regulation: Does the EU Destroy the government or even the European Union, what would regime-centered perspective to a legalized, court- recent PNG case law concerning the right to freedom Texture of National Life? remain of this “non-interference” principle? Would it centered approach occurred in China’s introductions of religion under the Papua New Guinea Constitution A persistent set of arguments rejects EU integra- imply something or perhaps change something about to and studies on American constitutionalism. The and American establishment clause case law in rela- tion not only because of its adverse economic social or the nature of the EU. U.S. Supreme Court and the concept of judicial review tion to the installation and removal of religious symbols political consequences, but also because of its cultural now primarily preoccupy most Chinese constitutional on government property. The influence of American ones. As markets grow more homogenous and limit- Maarten Stremler: Fundamental Value Conflicts minds; these features of the American system have constitutional concepts can be seen in the PNG case less, the argument goes, everyday life looses its na- in the European Union: What Role for Law? formed the focal points of reference for Chinese con- law despite that case law making no explicit reference tional character and citizens are left with a weakened This paper critically analyses the legal and politi- stitutional reform. This shift from the first phase to the to American concepts or cases. sense of community and identity. In legal scholarship, cal regime that regulates conflicts over fundamental second reflects both ideological and social changes this argument takes the shape of a denunciation of values between the supranational EU and individual since the Reform in China: the development of legal the free movement decisions of the CJEU and the Member States. Whereas most academic literature professionalism and the disciplinary specialization of Commission’s competition interventions as they de- focuses on enforcement of compliance with EU val- constitutional law. stroy forms of market regulation that have been part ues by recalcitrant Member States, this paper takes of the national fabric for decades and have taken on a more reflective stance and explores and evaluates Luis Claudio Martins de Araujo: The impact of a certain cultural significance. Through case based three distinct and competing approaches to such cross-border constitutionalism in the legal research and socio-legal methodology my disserta- conflicts. According to the first approach, the EU like systems: The rational of judicial rights review tion tries to challenge this line of argument, which I the federal level of a federal state, possesses both based on the transnational dialogue call the culturalist narrative. My claim is that EU law the competence and the legitimacy for intervening In the structure of a judicial decision within the is permissive enough for member states to retain in the Member States when they deviate from the su- current globalized society, it is clear that the decisions the cultural specificity protected by their preferred pranational standard of values. The second approach of domestic and transnational jurisdiction are made market arrangements. In this paper I draw from case understands the EU as an example of an international in a dialogue among courts around the globe. Thus, studies developed for my dissertation (book pricing organisation which conditions its membership on re- it is undeniable that every day judges form different rules, zoning rules affecting retail distribution and spect for democratic values. The third approach is courts look abroad, looking for new arguments to regulation of certain professions) to develop a con- inspired by constitutional pluralism and asserts that in justify their own cases. Therefore, the judicial deci- ceptual framework that allows to better describe the case of conflict, there is no neutral point of view from sions are not any longer an isolated process of de- implications – cultural and otherwise – of these forms which the differences between the Member States liberation of local courts. On the contrary, they are of market regulation. The question I try to answer is: and the EU can be reconciled. After having set out the part of a transnational process of dialogue among what are the real concerns that the “culturalist” narra- three approaches in more detail, the paper tests the courts around the globe. Consequently, the use of tive tries to voice? Or in other words what do member explanatory power of these approaches against the transnational decisions brings a new standpoint to states really protect through these rules that the EU existing legal and political regime of the EU and its the Judiciary branch in which the reference to other supposedly destroys? application in two concrete cases: the controversial courts provides an additional and useful instrument constitutional developments in Hungary and Poland, to deal with related cases. Thus, it is undeniable the Sébastien Platon: Do public entities have funda- respectively. The paper concludes with a preliminary influence of this transnational courts as an important mental rights under EU Law? assessment of the practical effectiveness and norma- theoretical reference in the different levels of judicial The issue of whether or not public entities actually tive desirability of each of the three approaches. understanding in a cross-fertilization process of ideas have fundamental rights may seem absurd. The doc- and approaches, that helps the courts to examine is- trine of fundamental rights was designed to protect Marko Turudic: Regulating over-the-top ser- sues from a different perspective, in an interaction individuals from public entities, not to protect public vices in EU law that increases the recognition of decisions taken by entities themselves. The European Court of Human The paper analyses the regulation of over-the-top local and transnational courts. Furthermore, in this Rights, for example, declares any application brought services in European Union law. It starts by defining transnational process judicial decisions are developed before it by a public entity to be inadmissible. How- over-the-top services and analysing their position in light of the international and foreign paradigm, al- ever this issue is not clear under EU Law and there is within the regulatory framework for electronic com- lowing new references for judicial interpreters, in a even some evidence to suggest that public entities munications of the European Union. Furthermore, the process that contributes for a mutual respect in the might in fact benefit from fundamental rights. If this paper tries to ascertain the influence of over-the-top transnational community, with the oxygenation of ideas is true, it could raise interesting questions, some of service providers in the electronic communications and paradigms used by courts. them are practical such as which kind of public enti- sector and the difficulties in the relationship between ties? Which rights? Against whom? Could we go as over-the-top service and electronic communications

Concurring panels 322 Concurring panels 323 network providers. The paper further analyses the 199 The Court of Justice of to the Treaties had wished to perverse for themselves, judgment has been accurately described as ‘revolu- regulatory requirements of electronic communications European Union: shielded from input from supranational institutions, the tionary’ and remains the subject of intense scholarly service providers under the current regulatory frame- History and Evolution II reality is that this derogation on jurisdiction is slowly debate. This paper looks again at “Van Gend en Loos” work for electronic communications of the European evolving. This is despite CFSP as a legal field progress- using an usual comparative context, that is, by com- Union, and tries to determine what obligations do not ing little in terms of structural design vis-á-vis other parison with an important European Court decision apply to over-the-top services providers. It continues Participants Szalbot Balazs areas of law at each constitutional re-design. Thus, it which denied ‘direct effect’ to treaty obligations. In with determining possibilities for the application of Graham Butler has been left to the Court to chisel-away at the highly its “International Fruit” decision of 1972, the European some of these obligations to the over-the-top service Ebrahim Afsah restricted field of judicial involvement, by slowly and Court refused to grant ‘direct effect’ to the obligations providers. The paper concludes with an analysis of the William Phelan carefully plotting the Court’s judgments when they of the GATT (‘General Agreement on Tariffs and Trade’ proposal for a new regulatory framework for electronic Moderator Ebrahim Afsah arise, by providing nuanced arguments for asserting the postwar global trade regime) within the European communications of the European Union and tries to Room 8B-4-49 the Court’s jurisdiction. Is this approach justified in Community. This “International Fruit” decision is often establish whether there is a different intention to regu- light on the express wishes of the Treaties? This pa- considered relevant only to the European Community’s late over-the-top services and their providers. per critically analyses the Court’s argumentation and external trade relationship with the wider world. This Szalbot Balazs: The analysis of the CJEU’s ju- justification for this act, in light of its case law since paper will demonstrate that “International Fruit” can risprudence pertaining to the standing of the CFSP was established. also be used to reveal the early ECJ’s deeper thinking annulment procedure with special regard to the behind the doctrine of ‘direct effect’. In fact, as this pa- acts regulating private relations per will show, the text of “International Fruit” is clearer, The paper aims to scrutinize the most current im- Ebrahim Afsah: “Enemies of the People?” For- and more compelling about the logic of direct effect, provements in the interpretation of the Court of Justice gotten Virtues of Judicial Self-Restraint: A than the text of “Van Gend en Loos” itself. of the European Union pertaining to the standing of Comparison between the ECJ and the ICJ the annulment procedure. The latest jurisprudence Sheltered behind the unquestionable legitimacy of the CJEU generated widespread criticism from of the integration project, the ECJ developed doc- the academia because of depriving ‘non-privileged’ trines of the absolute supremacy and uniformity of applicants from effective judicial protection. The Lis- EU law. Extending the model of municipal law and its bon Treaty elevated the status of the Charter of Fun- functional division of labour to a ‘supranational le- damental Rights of the EU – that also contains the gal order’ created ex nihilo, it often dispensed with right to effective judicial protection – to the status of sovereign consent. The much-lamented ‘democracy the Treaties themselves. Although, in case of annul- deficit’ of European integration is a feature, not a bug. ment procedure the applicants still contest basically As the ‘motor of integration’ the Court operates as the rules of an economic union (as opposed to the the vanguard of an elite epistemic community toward constitutional complaints procedure, which is directly the supremacy homogeneity and effectiveness of EU linked to the fundamental rights of the individuals), this law, often dismissive of countervailing constitutional change highlights the importance of drawing a com- traditions. This is especially apparent in controversial parison between the CJEU’s and the constitutional judgments on the free movement of people and Union courts’ practice with regard to the individual concern citizenship. The ICJ, in contrast, has always sought to criteria. In this regard, the paper particularly examines maintain its institutional legitimacy in a primitive legal the differences between the individual concerns re- order. With tenuous jurisdiction and no enforcement quired by the CJEU and by the constitutional courts mechanism, the ICJ has exercised an extreme de- and how the different roles of the courts influenced gree of judicial self-restraint. Decisions like the 1966 their interpretation. In addition, it also underlines the South-West Africa Case or its 1996 Nuclear Weapons necessity of analysing whether the criteria are the Advisory Opinion show the limits of its own power and same in case of acts regulating private relations. the recognised dangers of an activist development of the law. It is argued that the judicial activism of the Graham Butler: Palpable Choices in Judicial Ju- ECJ has contributed to popular discontent with inte- risdiction: Foreign Affairs the Court of Justice gration, due to it deliberate disregard for majoritarian and European Union law preferences and national interests. Its methodologi- The Court of Justice of the European Union plays a cal intransigence might thus have pushed a growing pivotal role in the development of Union law. Yet there faction of the European demos toward exit from the is an explicit derogation on the Court’s jurisdiction legal order it polices. when it comes to the formulation decision-making, and ultimate execution of the EU’s foreign affairs William Phelan: “International Fruit” (1972) as a acts, done through the legal regime that has been mirror to “Van Gend en Loos” (1963): Rethinking specially crafted, known as the Common Foreign and the constitutional judgements of the European Security Policy. The position of the Court in CFSP is in Court of Justice direct contrast to other non-CFSP actions of the Union In its famous “Van Gend en Loos” decision of 1963, through other external relations instruments, in which the European Court of Justice created the ‘direct ef- the Court has general jurisdiction, like other normal fect’ doctrine of European law, allowing private parties policy fields. Despite foreign affairs being held as an (individuals and business firms) to enforce European exceptional field in which the High Contracting Parties law rights in national courts. The “Van Gend en Loos”

Concurring panels 324 Concurring panels 325 V ICON  S Inaugural VI ICON  S Conference Governance Proceedings Series

The Presidency

De Búrca, Gráinne ( co-President of ICON  S ) Jacobsohn, Gary J. The ICON  S WP Conference Proceedings Series Hirschl, Ran ( co-President of ICON  S ) King, Jeff features papers presented at the Annual ICON  S Conferences. Cassese, Sabino ( Honorary President of ICON  S ) Kingsbury, Benedict The purpose of publication is to make work acces- Koenig, Matthias sible to a broader and / or different audience without Kosar, David the usual delay resulting from more traditional ways The Inaugural Krisch, Nico of publishing. Executive Committee Kumm, Mattias If you are interested in publishing your conference Loughlin, Martin paper in the ICON  S WP Conference Proceedings De Búrca, Gráinne (co-chair of the Committee) Series, please check whether your paper meets our Lübbe-Wolff, Gertrude Hirschl, Ran (co-chair of the Committee) guidelines for publication and then send your paper to: Maduro, Miguel Casini, Lorenzo ( Secretary general of ICON  S ) Mehta, Pratap Bhanu Golden, Claudia ( Treasurer of ICON  S ) Mendes, Joana → icons @ icon-society.org Choudhry, Sujit Micklitz, Hans-Wolfgang Okowa, Phoebe Moellers, Christoph Rubio Marin, Ruth The Guidelines for publication are available on the Napolitano, Giulio Ruiz Fabri, Hélène Society’s website. Publication as an ICON  S Work- Peters, Anne ing Paper does not preclude or prejudice subsequent Weiler, Joseph H. H. ( I  CON Editor in Chief ) Rosenfeld, Michel publication in a book or journal. Ruffert, Matthias The ISSN is kindly provided by the Institute for Re- Sadurski, Wojciech search on Public Administration ( IRPA ). The Inaugural Shany, Yuval Society’s Council Siegel, Reva Albert, Richard Smith, Rogers Amato, Giuliano Solanke, Iyiola Auby, Jean-Bernard Stewart, Richard B. Baer, Susanne Tega, Diletta Barnes, Javier Torchia, Luisa Benvenisti, Eyal Uitz, Renata Boisson de Chazournes,Laurence van Aaken, Anne Cartabia, Marta von Bogdandy, Armin Chan, Cora Chang, Wen-Chen Cohen-Eliya, Moshe Craig, Paul D’Alberti, Marco De Wet, Erika Dixon, Rosalind Elkins, Zachary Ferreres Comella, Victor Gardbaum, Stephen Ginsburg, Tom

ICON  S Conference ICON  S Inaugural Proceedings Governance 326 Series 327 Venue not provide you with Eduroam access, you may use The ICON  S 2017 Conference on “Courts, Power, and University of Copenhagen’s guest network KU-Guest. VII Service Public Law” will be held at the University of Copen- You will need to register on location at the Faculty of hagen. All conference activities except the opening Law in order to obtain access to KU-Guest. We will be ceremony will take place at the University’s South happy to assist you in the Legal Knowledge Centre at Campus, situated in Islands Brygge near the Copen- the Faculty of Law. hagen Harbor. The Faculty of Law will be the heart of the ICON  S 2017 Conference. Here is the address: Attendance certificate Certificates verifying your attendance at the ICON  S 2017 Conference will be provided to you in your Confer- → university of Copenhagen ence package, which you will receive when registering faculty of Law for the Conference. Should you have special require- Njalsgade 76 ments for the attendance certificate that are not cov- dk – 2300 Copenhagen S ered by the one provided to you, please approach us at the registration desk.

The opening ceremony of the ICON  S 2017 Confer- Catering ence will take place at Radisson Blu Scandinavia Hotel. There will be coffee breaks between the conference Plenary sessions on Thursday and Friday will take sessions as indicated in the schedule on page 3 - 5. place at the Faculty of Humanities with overflow rooms At the end of the first conference day, we would like to at the Faculty of Humanities and the Faculty of Law. invite you to join us for a cocktail reception. On Thurs- All panel sessions will take place at the Faculty of Law. day, we will offer our conference participants a light All buildings are in immediate vicinity of the address lunch, and on Friday we will serve a snack to-go before mentioned above. You will find a map of the ICON  S the plenary session. The coffee break in the opening 2017 Conference venues at page 330. ceremony will take place at Radisson Blu Scandinavia Hotel. All other conference catering wll be served at Registration the Faculty of Law in the Atrium. The Faculty of Law Registration on Wednesday will take place at Radisson canteen will be open during the conference, and the Blu Scandinavia Hotel in the Scandinavia Foyer during Faculty of Humanities Canteen will be open before the opening ceremony. Registration after the opening the plenary sessions on Thursday and Friday. You may ceremony and for the duration of the conference will purchase beverages, snacks and light meals. Most take place at the Faculty of Law in the open area to the credit cards are accepted. left when you enter at Njalsgade 76. ATM Transportation An ATM is available for cash withdrawals outside Nor- If you are traveling to Copenhagen by plane: dea Bank, Njalsgade 72 B. When you arrive in Copenhagen Airport, you may use the Metro or a taxi from the airport to the Faculty of Info Points Law. The journey from Copenhagen Airport to the The conference has two info points where help will be Faculty of Law takes approximately 25 minutes. The available to you. Our personnel will be clearly visible Metro service runs from the far end of the arrival hall and will be happy to assist you in every way they can, in terminal 3 to Christianshavn Station, where you have should you encounter any problems or have confer- to change Metro line to go to Islands Brygge Metro ence-related questions. The info points are located Station. The Faculty is located 150 metres from Islands in the Faculty of Law at the registration desk by the Brygge Metro Station. If you prefer to take a taxi to the Njalsgade 76 entrance and in the Legal Knowledge Faculty (about 14 km / 24 Euro), you can pay with almost Centre on the ground floor. any credit card in any taxi in Copenhagen. SUPERMARKET PARKING There is a Fakta supermarket at Njalsgade 72 A-D, We offer free parking for ICON  S participants for the where you may purchase convenience foods, toiletries, duration of the conference in the South Campus park- etc. Opening hours are 7 am – 10 pm. ing areas. No permit required. Emergency Situations WIFI Should you find yourself in an emergency with no The University of Copenhagen offers Eduroam. In or- immediate help at hand during your stay in Copen- der to use Eduroam, you only have to connect to the hagen, you may reach Danish emergency services by Eduroam network. The authentication will be provided calling 112 (ambulance, fire department and police) by your home institution. If your home institution does from any phone.

ServiCE 329 VIII mAP of conference venues

1 Radisson Blu Scandinavia Hotel Amager Blvd. 70 1 r DK – 2300 Copenhagen S

r Registration during the opening ceremony

2 Faculty of Law, university of Copenhagen Njalsgade 76 Amager Blvd. DK – 2300 Copenhagen S

r Registration after the opening ceremony

i Info Point

Catering / Atrium

L Legal Knowledge Centre (ground floor)

C Law Canteen M

3 Faculty of Humanities, university of Copenhagen

Karen Blixens Plads 8 Njalsgade 2 DK – 2300 Copenhagen S

Ørestads Blvd. i r C C Humanities Canteen l i P C P M Metro / Islands Brygge 3

P Parking

P

Map of Conference N venues & floor plans 100 m 200 m Radisson Blu Faculty of Law, Scandinavia Hotel University of Copenhagen 1 st Floor ground floor

from Radisson Blu Scandinavia Hotel

Legal Knowldge centrE / Atrium

to Faculty l i of Humanities C r i

r

Scandinavian Ballroom

to Faculty of Law

Map of Conference Map of Conference venues & floor plans 332 venues & floor plans 333 1 st Floor 2 nd Floor

8A-2-17 8A-2-27

Auditorium 9A-1-01

4B-2-22 8B-2-03 4B-2-34 8B-2-09 8B-2-19

7C-2-02 8B-2-33 4B-2-58 7C-2-12 8B-2-43 7C-2-14 8B-2-49 7C-2-24

Map of Conference Map of Conference venues & floor plans 334 venues & floor plans 335 3 rd Floor 4 th Floor

8A-3-17 8A-4-17 8A-3-27 8A-4-35 8A-3-45 8A-4-47

Auditorium 9A-3-01

8B-3-03 8B-4-03 8B-3-09 8B-4-09 8B-3-19 8B-4-19

8B-3-33 8B-4-33 8B-3-39 8B-4-43 8B-3-49 8B-4-49 8B-3-52 8B-4-52

Map of Conference Map of Conference venues & floor plans 336 venues & floor plans 337 Eyal Benvenisti Faculty of Humanities, University of Cambridge 180 Participants Sara Benvenuti University of Copenhagen University of Florence 225 Simone Benvenuti ground floor A Masaryk University 73 Ayelet Berman Vigjilenca Abazi Anna Aseeva University of Singapore 267 Maastricht University 174 HEC Paris 112 Giulia Bertezzolo Tania Abbiate Tania Atilano European Commission 240 Max Planck Institute Humboldt Universität 268 Violeta Beširević for Social Law 113 Shreya Atrey Union University 182 Rehan Abeyratne New York University Christoph Bezemek NYU School of Law 217, 249 School of Law 129 University of Graz 287 Gilad Abiri Andrea Averardi Nehal Bhuta Yale law school 301 University of RomaTre 109 European University Institute 226 David Abraham Zemelak Ayele Mateusz Bieczyński University of Miami 206 Addis Ababa University 92 The University of the Arts 311 Elizabeth Acorn Agnieszka Bień-Kacała Cornell University 301 B Nicolaus Copernicus Ebrahim Afsah University in Toruń 197 University of Gerry Baier Sarah Bishop Copenhagen 54, 324, 325 University of British Columbia 131 Australian National University 52 Joachim Åhman Cecilia Bailliet Jessie Blackbourn University of Gothenburg 262 University of Oslo 108, 258 University of Oxford 137 Rosario Aitala Beverley Baines Anita Blagojevic Senate of Italy 208 Queen’s University 70 J. J. Strossmayer Marina Aksenova Aaron Baker Univeristy of Osijek 215 from University of Copenhagen 284 Durham University 34, 35 Aleksander Blankenagel Faculty of Law Richard Albert Szalbot Balázs Humboldt University 291 Boston College Law Central European University 324 Paul Blokker School 84, 139, 181, 261, 284 Aslí Bâli Charles University 49, 94, 204 C Anneli Albi UCLA School of Law 147 Binyamin Blum University of Kent 79 Antonia Baraggia The Hebrew University Stephen David Allen University of Milan 150, 191 of Jerusalem 186 University of London 196 Mario Barata Marco Bocchi Karen J. Alter Polytechnic Institute University of Rome 217, 319 Northwestern University of Leiria 214 Eszter Bodnar and University Joan Barata Mir Eötvös Loránd University 151, 272 of Copenhagen 66, 314, 315 International Institute of Andreja Bogataj Auditorium Auditorium Micaela Alterio Communications 274 Max Planck for Social Law 23-0-50 23-0-49 Instituto Tecnológico Nick Barber and Social Policy 113 (capacity 320 pers.) (capacity 150 pers.) Autónomo de México (ITAM) 187 Oxford University 297 Daniel Bogéa Rahel Altmann Benedetta Barbisan University of Brasília 270, 317 Swiss Federal Administrative University of Macerata 48 Gleb Bogush Court 271 Mikolaj Barczentewicz HSE University 63 Merris Amos University of Oxford 249 Paolo Bonini University of London 270 Sanja Baric University of Rome 257 Feri Amsari University of Rijeka 101 Silvia Borelli Andalas University 161 Javier Barnes University of Bedfordshire 118 Rebecca Ananian-Welsh University of Huelva 194 Pau Bossacoma University of Marco Bassini Institute of Studies Queensland 53, 166, 300 Bocconi University 169, 275 on Self-Government 272 Søren Stig Andersen Or Bassok Daria Brasca University of Copenhagen 246 University of Nottingham 77, 133 IMT Lucca 128 Arianna Angeli Ed Bates Patricia Brazil University of Insubria 309 University of Leicester 270 Trinity College 72 Pasquale Annicchino Luke Beck Eva Brems European University Institute 243 Western Sydney University 322 Ghent University 99, 155 Gabrielle Appleby Mehdi Belkahla Fabienne Bretscher University of MPI Luxembourg 119 University of Zurich 160 New South Wales 61, 131, 290 Eva Maria Belser Filipe Brito Bastos Giulia Aravantinou Leonidi University of Fribourg 36, 316 The London School of Economics University of Matyas Bencze and Political Science 90 Rome La Sapienza 74 University of Debrecen 58 Elena Brodeală Joáo Archegas Ariel Bendor European University Institute 71 Escola Positivo 317 Bar-llan University 265 Irene Broekhuijse Ori Aronson Vicente Fabian Benitez-Rojas Open University Bar-Ilan University 204 Universidad de La Sabana 84, 292 of the Netherlands 158, 159, 203 Map of Conference venues & floor plans 338 Participants 339 Hauke Brunckhorst Sharath Chandran Paul Craig Erin Delaney Bertil Emrah Oder Jean-Philippe Foegle European University High Court of Madras 300 St John’s College 33, 101 Northwestern University 131, 186 Koç University 141, 244 Université Paris of Flensburg 153 Wen-Chen Chang Melissa Crouch André Delgado Casteleiro Timothy Endicott Ouest Nanterre La Défense 136 Philip Bryden QC National Taiwan University 50, 95 UNSW 50 Max Planck Institute University of Oxford 31 Effie Fokas University of Alberta 290 Andy C.M Chen Kevin Crow Luxembourg for Elisabeth Eneroth Hellenic Foundation for Johannes Buchheim University of Hong Kong 300 Universität Halle-Wittenberg 302 Procedural law 119, 199, 214 Goethe University Frankfurt 299 European and Foreign Policy Humboldt University 301 Albert H.Y. Chen Deirdre Curtin Giacomo Delledonne Yaffa Epstein (ELIAMEP) 242 Bojan Bugaric Chung Yuan European University Institute 67, 90 Scuola superiore Sant’ Anna 169 Uppsala University, Sweden 37 Andreas Føllesdal University of Ljubljana 49, 144 Christian University 95, 229 Anna Czaplińska Renata Deskoska Julen Etxabe University of Oslo 236 Eli Bukspan Alina Cherviatsova University of Lodz 273 University Ss. University of Helsinki 247 Filippo Fontanelli Radzyner Law School 302 V. N. Karazin Kharkiv Adam Czarnota Cyril and Methodius 224 Kirk Ewan University of Edinburgh 127 Dana Burchardt National University 224 University of New South Wales 310 Elias Deutscher Birmingham City University 122 Richard Foo Max Planck Institute 53, 280 Olga Chesalina European University Institute 41, 164 Monash University 132 Lucia Busatta Max-Planck-Institute for D Angela Di Gregorio F James Fowkes University of Padova 166 Social Law and Social Policy 112 University of Milan 149 Westfälische Graham Butler Jimmy Chia-Shin Hsu Marco D’Alberti José M. Díaz ed Valdés Federico Fabbrini Wilhelms-Universität 77, 184 Aarhus University 324 Academia Sinica 230, 261 Yale Law School 101 Universidad del Desarrollo 307 Dublin City University 145, 315 Flavia Foz Mange Antoine Buyse Vincent Chiao Elisa D’Alterio Anne Dienelt Tomio Fabrício São Paulo State University 142 Utrecht University 43, 251 University of Toronto 157, 212 Sapienza University of Rome 45 University of Hamburg 220, 221 Federal University of Paraná 81 Agnieszka Frąckowiak-Adamska Bhupinder Chimni Leora Dahan Katz Leticia Díez Sánchez Ligia Fabris Campos University of Wroclaw 223 C Jawaharlal Nehru University 8 University of Catania 158 European University Institute 234 FGV Direito Rio & Justin Orlando Frosini Sujit Choudhry Eoin Daly Rosalind Dixon Humboldt Universität 313 Johns Hopkins School Dhanay Cadillo Chandler University of California 140 National University of Ireland 137 UNSW David Fagelson of Advanced University of Turku 173 Adriana Ciancio Tom Daly Australia 33, 124, 141, 181, 232 American University 301 International Studies 233 Natalia Caicedo University of Catania 45 The University of Edinburgh 140 Gabor Dobos Pietro Faraguna Anna Fruhstorfer University of Barcelona 258 Fabiana Ciavarella Liviu Damsa Hungarian Academy of Sciences 305 LUISS Guido Carli University, University of Texas at Austin & Ana Cannilla University of Rome 299 Birmingham City Irina Domurath Department of Humboldt-Universität 297 University of Reading 282 Ines Ciolli University 121, 122 Federal Ministry of Justice and Political Science 169, 261 Oliver Fuo Felicia Caponigri Sapienza University 256 Marco Dani Consumer Protection 235 Anuscheh Farahat North-West University 320 IMT School for Stefano Civitarese University of Trento 36, 86, 164 Yoav Dotan Goethe-University 60 Carlo Fusaro Advanced Studies 128 University of Chieti-Pescara 288 Valeska David Hebrew University 301 Fernanda Farina University of Florence 233 Federico Caporale Monica Claes Ghent University 99 Shai Dothan University of Oxford 313 Sapienza Università Maastricht University 175 Fergal Davis University of Copenhagen 111, 133 Donal Fariz G di Roma 109 Francesco Clementi King’s College London 138 Oran Doyle Indonesia Corruption Watch 162 Monica Cappelletti University of Perugia 201 Maurizia De Bellis Trinity College 139, 293 Cristina Fasone Diana-Urania Galetta Dublin City University (DCU) 215 Mathilde Cohen University of Rome 240 Bjoern Dressel LUISS Guido Carli University 59, 151 University of Milan 90 Walter Carnota University of Connecticut 39, 123, Nik de Boer Australian National University 51, 52 Shaheed Fatima Denis Galligan University of Buenos Aires 289 186, 241, 289 University of Amsterdam 86 Rochelle Dreyfuss Blackstone Chambers 11 University of Oxford 181 Eoin Carolan Moshe Cohen-Eliya Gráinne de Búrca NYU School of Law 173 Veronica Federico Patricia Galvao Ferreira University College Dublin 78, 205 College of Law New York University 7, 31, 107 Tímea Drinóczi Department of Legal Studies- CIGI 221 Elena Carpanelli and Business 35, 147 Emilio De Capitani University of Pécs 168, 197, 272 University of Florence 112 Leopoldo Gama University of Parma 67 Margit Cohn Queen Mary Law School 116 Anél du Plessis Myriam Feinberg Tribunal Electoral del Poder Marta Cartabia Hebrew University Emmanuel De Groof North-West University 188 Minerva Center for the Judicial de la Federación 222 Italian Constitutional of Jerusalem 316 European University Institute 54 Maureen Duffy Rule of Law under Stephen Gardbaum Court 9, 184, 261, 295 Franciska Coleman Josephine De Jaegere University of Calgary 219 Extreme Conditions 118 UCLA 77, 179, 232, 286 Iderpaulo Carvalho Yonsei University Law School 317 University of Antwerp 98 Jeffrey L. Dunoff David Fennelly James Gardner WZB Center for Global Carlo Colombo Tomás de la Quadra-Salcedo Janini Temple University 127 Trinity College 72, 244 University at Buffalo 36 Constitutionalism 153 Tilburg Law School 192, 194 Universidad Autónoma Balthazar Durand Silvia Fernández de Gurmendi Pierre Garrone Federica Casarosa Joel Colon-Rios de Madrid 60, 234 Nanterre University 136 International Criminal Court 10 Council of Europe 150, 151 European University Institute 67 Victoria University Alexandre de le Court Betül Durmuş Víctor Ferreres Allison Geduld Salvatore Caserta of Wellington 84, 181 Universitat Pompeu Fabra 113 Koc University Pompeu Fabra University 294 North-West University 305 University of Copenhagen 105 Jorge Contesse Fiona de Londras Center for Global Public Law 244 Delia Ferri Gert Jan Geertjes Lorenzo Casini Rutgers Law School 43 University of Birmingham 165 Antoine Duval Maynooth University 225 Leiden University 205 IMT School for Hugh Corder Matteo De Nes T.M.C Asser Institute, Yonatan Fessha Maria Elena Gennusa Advanced Studies 128 University of Cape Town 290 University of Padua 288, 289 The Hague 210 University of the Western Cape 92 University of Pavia 115 Sabino Cassese Leiry Cornejo Chavez Marijke De Pauw Massimo Fichera Zlatina Georgieva Scuola Normale European University Institute 43 Vrije Universiteit 100 E University of Helsinki 247 Tilburg University 172 Superiore 65, 128, 233 Magdalena Correa Henao Estefania M. de Queiroz Barboza Caterina Filippini Janneke Gerards Pola Cebulak Universidad Externado Federal University Friederike Eggert University of Milan 149 Utrecht University 34, 156, 255 University of Copenhagen 105, 106 de Colombia 84, 148 of Paraná 81 Johann-Wolfgang-Goethe Michéle Finck Sergio Gerotto Tanja Cerruti Anabela Costa Leão Pasquale De Sena University 205 London School Padua University 234 University of Torino 149 University of Porto 143 Università Cattolica di Milano 199 Stefanie Egidy of Economics 189, 244 Tom Ginsburg Zdenek Cervinek Angela Costaldello Erika De Wet Max-Planck-Institute Guy Fiti Sinclair The University of Palacký University 260 Faculty Member 81 University of Pretoria 9 for Research on Victoria University 227 Chicago Law School 50, 285 Kalliopi Chainoglou Fulvio Costantino Bruno de Witte Collective Goods 276 Maria Fletcher Alberta Giorgi University of Macedonia & University of Macerata 264 European University Mariolina Eliantonio University of Glasgow 309 University of Coimbra 243 University of East London 311 Maria Francisca Miranda Coutinho Institute 129, 191 Maastricht University 170, 192, 194 Monika Florczak-Wator Melina Girardi Fachin Cora Chan Universidade Federal Johanna del Pilar Cortes-Nieto Sümeyye Elif Biber Jagiellonian University Universidade Federal The University of Hong Kong 95 do Paraná 82, 135 University of Warwick 304 Koc University 244 in Cracow 319 do Paraná 81, 135, 215

Participants 340 Participants 341 Yehonatan Givati Simon Halliday I Magdalena Jozwiak Rinat Kitai-Sangero Christopher Kuner Hebrew Univeristy 214 University of New South Wales 288 Leiden University 252 Carmel Academic Center 87 Vrije Universiteit 244 Judit Glavanits Gabor Halmai Mario Iannella Veri Junaedi Astrid Kjeldgaard-Pedersen Mirjam Künkler Széchenyi István University 252 European University Scuola Superiore Sant Anna 55 Initiative Constitution 162 University of Copenhagen 63 SCAS 64 Zuzanna Godzimirska Institute 94, 185, 256 Michael Ioannidis Satvinder Juss Jan Klabbers Raffaela Kunz University of Copenhagen 175 Lisa Harms Max Planck Institute King’s College London 206 University of Helsinki 66, 226, 286 Max Planck Institute 43 Matthias Goldmann Max Planck Institute for for Comparative Law Matthias Klatt Dmitry Kurnosov Goethe University 283 the Study of Religious and International Law 192 K University of Graz 315, 316 University of Copenhagen 133 Marco Goldoni and Ethnic Diversity 160 Maria Ioannidou Nicolas Klausser Dimitrios Kyritsis University of Glasgow 285 Barbara Havelková Queen Mary University 42 Dimitrios Kagiaros Université Paris Ouest University of Reading 114, 179 Diego Andrés González Medina University of Oxford 70 Danielle Ireland-Piper University of Edinburgh 119 Nanterre La Défense 136 Universidad Externado Sajeda Hedaraly Bond University 321 Hent Kalmo Dean Knight L de Colombia 84 McGill University 265 Ivana Isailovic Harvard Law School 283 Victoria University Jurgen Goossens Michael Hein NYU 242 Rodrigo Kanayama of Wellington 316, 317 Sarah Lambrecht Ghent University & University of Göttingen 306 Hannele Isola-Miettinen Universidade Federal do Paraná 81 Nandor Knust University of Antwerp 99 Erasmus University 29 Ragnhildur Helgadóttir National Audit Office Vera Karam de Chueiri Max Planck Institute for Rui Lanceiro Geoffrey Gordon Reykjavík University 152 in Finnish Parliament 222 Universidade Federal Foreign and International University of Lisbon 79 T.M.C. Asser Institute 267 Agnes Hellner Sam Issacharoff do Paraná 81, 134 Criminal Law 63 David Landau Caitlin Goss Uppsala University 37 NYU School of Law 125, 140 Ulas Karan Dimitry Kochenov Florida State University of Queensland 53 Caroline Henckels Istanbul Bilgi University 266 University of Groningen 80 University 30, 96, 140, 294 Niels Graaf Monash University 260 J George Karavokyris Ida Koivisto Alessandra Lang Utrecht University 292 Stéphanie Hennette-Vauchez Democritus University of Thrace & University of Tampere 133 University of Milan 149 Mark Graber Université Paris Ouest Erin Jackson Neapolis University of Paphos 82 Jan Komárek Andrej Lang University of Maryland 124 Nanterre La Défense 108, 135, 241 Harvard Law School 292 Maksim Karliuk London School of Economic Martin-Luther Universität 165 Lorenzo Gradoni Ester Herlin-Karnell Miles Jackson HSE — Skolkovo Institute and Political Science 85, 165 Laurence Burgorgue Larsen Max Planck Institute VU University University of Oxford 53 for Law and Development 106 Tomasz Tadeusz Konczewicz Sorbonne Law School 200 Luxembourg 199 Amsterdam 69, 308, 309 Vicki Jackson Haukur Karlsson University of Gdansk 94 Allison Larsen Paul Gragl Tanya Hernandez Utrecht University 124, 131 European University Karen Kong The College of Queen Mary, 195 Durham University 39, 186 Gary Jacobsohn Institute 102, 103 The University of Hong Kong 304 William and Mary 254 Miroslaw Granat Gleider Ignacio Hernández University of Texas Ireneusz Paweł Karolewski Martin Kopa Erik Lastic Uniwersytet Kardynala Fordham University 120 at Austin 181, 285 University of Wroclaw 176 Palacký University in Olomouc 201 Comenius University 265 Stefana Wyszynskiego 276 Juan C. Herrera Jannika Jahn Sofiya Kartalova Ana Koprivica Luc Lavrysen Jamal Greene Universitat Pompeu Fabra 294 Max Planck Institute University of Tübingen 210 Max Planck Institute 154 Ghent University 261 Columbia Law School 253, 254 Maya Hertig Randall for Comparative Law Betül Kas Emilia Korkea-aho David Law Donna Greschner University of Geneva 234 and International Law 237 European University Institute 235 University of Helsinki 170, 227 Max Planck Institute 50, 186 University of Victoria 48 Tom Hickey Sanjay Jain Asa Kasher David Kosar Stephanie Law Elena Griglio Dublin City University 269 ILS Law College 225 University of Calgary 302 Masaryk University 93, 250 Washington University 154, 155 Senate of the Marius Hildebrand Andrzej Jakubowski Satwant Kaur Karl Kössler Marsid Laze Italian Republic 256, 257 Goethe-University 59 Polish Academy University of Warwick 209 EURAC Research University of Rome 110 Dieter Grimm Ran Hirschl of Sciences 312 Aileen Kavanagh Bolzano/Bozen 36, 93 Nicole Lazzerini Humboldt University & University of Toronto 10, 147 Mikkel Jarle Christensen University of Oxford 155, 232 Stylianos-Ioannis Koutnatzis University of Parma 67 Yale Law School 261 Edin Hodzic University of Copenhagen 63 Martin Kayser University of Thrace 298 Suzanne Le Mire Aeyal Gross Analitika - Center for Joanna Jemielniak University of St Gallen 271 Kriszta Kovács University of Adelaide 290 Tel-Aviv University 283 Social Research 102 University of Copenhagen 111 Katalin Kelemen ELTE University 233 Hà Lê Phan Robert Grzeszczak Cora Hoexter Cedric Jenart Örebro universitet 265 Michal Krajewski Freie Universität Berlin 117 University of Warsaw 176 University of the Research Foundation James Kelly European University Institute 91 H.P. Lee Barbara Guastaferro Witwatersrand 290 Flanders 192 Concordia University 98 Michael Krakat Monash University 132, 289 Durham Law School 270 Andreas Hofmann Patricia Jeronimo David Kenny Bond University 179 Ingrid Leijten Rishi Gulati University of Gothenburg 36, 206 University of Minho 217 Trinity College Dublin 281 Michal Kramer Leiden University 35, 121 King’s College London 179 Jakob Hohnerlein Swati Jhaveri Tarunabh Khaitan Freie Universität Berlin 116 Oliver Lepsius Kerem Gulay Albert-Ludwigs-Universität 276 University of Singapore 44, 146 University of Oxford 32, 227 Jan Kratochvil University of Bayreuth 33 Universidad Externado Richard Holden Ángel Aday Jiménez Alemán Sergey Khorunzhiy Palacky University 313 Hanna Lerner de Colombia 142 UNSW Australia 32 Universida de Vigo 279 Russian Presidential Academy Mordechai Kremnitzer Tel Aviv University 124, 147 Andrés Gutiérrez Jakob Holtermann Christian Joerges of National Economy and The Hebrew University Mu Li University of Amsterdam 294 University of Copenhagen 212 University of Bremen 79 Public Administration (RANEPA) 271 of Jerusalem 88 Peking University & Attila Gyulai Grant Hoole Thomas John Emily Kidd White Christoph Krenn University College Dublin 211 Hungarian Academy of Sciences 305 University of Hague Conference on NYU School of Law 38 Max Planck Institute 60 Ioannis Lianos New South Wales 61 Private International Law 53, 131 Jihye Kim Nico Krisch UCL 41 H Tamar Hostovsky-Brandes Mathew John Sunghin University 201 Graduate Institute of Christina Lienen Ono Academic College 208, 259 Jindal Global Law School 256 Younsik Kim International and University College London 263 Nasia Hadjigeorgiou Jula Hughes Brian Christopher Jones Gangneung-Wonju Development Studies 267 Ranieri Lima-Resende University of Central Lancashire 223 University of New Brunswick 290 University of Dundee 281 National University 224 Helle Krunke Federal University Jonathan Hafetz Kirsty Hughes Anna Jonsson Cornell Jeff King University of Copenhagen 104, 152 of Rio de Janeiro 210, 314 Seton Hall University University of Cambridge 310 Uppsala University 152 University College London 31, 77 Martin Krygier Chien-Chih Lin School of Law 118 Leonie Huijbers Eduardo Jordao Lando Kirchmair University of New South Wales 251 Chung Yuan Christian University 280 Helga Haflidadottir University of Utrecht 155 Fundação Getulio Vargas/ Bundeswehr University 163 Pratyush Kumar Chun-Yuan Lin University of St Andrews 220 Rosemary Hunter FGV Direito Rio 101 Amarilla Kiss National Law University Delhi 206 Institutum Iurisprudentiae 313 Michaela Hailbronner Queen Mary University Remy Jorritsma Pazmany Peter Mattias Kumm Suzannah Linton University of Pretoria 65, 85, 140, 286 of London 107 Maastricht University 200 Catholic University 283 WZB 166, 179, 255 Zhejiang Gongshang University 48

Participants 342 Participants 343 Kasper Lippert-Rasmussen Martina Mantovani Ekaterina Mihaylova Roberto Niembro Michael Pal William Phelan Aarhus University 227 Max Planck Institute 155 New Bulgarian University 219 Instituto Tecnológico University of Ottawa 218 Trinity College Dublin 252, 325 Vanice Lirio do Valle Deyana Marcheva Piotr Mikuli Autónomo de México (ITAM) 187 Alfonso Palacios Gavin Phillipson Estácio de Sá University 314 New Bulgarian University 219 Jagiellonian University 309 Janne Nijman Universidad Externado University of Durham 31, 78 Ryan Liss Pawel Marcisz Tomasz Milej University of Amsterdam 188 de Colombia 148 Giovanni Piccirilli Yale Law School & University of Warsaw 111 Kenyatta University 197 Ardian Nikolla Francesco Palermo LUISS Guido Carli 151 Columbia Law School 212 Nancy Marder Marija Milenkovska Swiss Federal EURAC Research Paulo Pinto de Albuquerque Mary Liston IIT Chicago-Kent St. Kliment Ohridski University 318 Administrative Court 271 Bolzano/Bozen 36, 92, 256 Catholic University of Portugal 296 University of British Columbia 62 College of Law 302, 303 Panu Minkkinen Stefania Ninatti Stephanie Palmer A. Sofia Pinto Oliveira Han Liu Lila Margalit University of Helsinki 246, 247 University of Milano-Bicocca 115 University of Cambridge 32 University of Minho 143 Tsinghua University 322 Israel Democracy Institute 166 Michael Mohallem Alba Nogueira Gianluigi Palombella Flavia Piovesan Daniella Lock Yseult Marique Getulio Vargas Foundation 219 University of Santiago Scuola Superiore Sant’Anna 286 Catholic University of São Paulo 218 University College London 264 University of Speyer 193 Alfredo Moliterni de Compostela 304 Matina Papadaki Darinka Piqani Titia Loenen Margarita Markoviti Sapienza University 101 Max Planck Institute 119 Leiden University 222 University of Leiden 121 Hellenic Foundation for Kai Möller O Tatjana Papic Eliska Pirkova Jan-Peter Loof European and Foreign Policy 242 LSE 65, 179 Union University Belgrade 101, 102 University of Helsinki 202 Leiden University 121 Marta Maroni Christoph Möllers Colm O’Cinneide Davide Paris Anna Pirri Kelley Loper University of Helsinki 318 Humboldt-University 114, 164 Chiba University 137, 191 Max Planck Institute 73, 184 IMT 128 The University of Hong Kong 229 Craig Martin Benedikte Moltumyr Høgberg Keigo Obayashi Gregory S. Parks Radek Pisa Rocío Lorca Ferreccio Washburn University 83 University of Oslo 152 University College London 229 Wake Forest University 89 Charles University 204 Universidad de Chile 38 Luis Claudio Martins de Araujo Toon Moonen Enyeribe Oguh Leonardo Parona Katharina Pistor Germán Lozano Villegas Attorney General’s Hasselt University 257 University of York 209 University of Trento 46 Columbia Law School 8 Constitucional Office of Brazil 40, 322 Madalina Moraru Tuomas Ojanen Luca Pasquet Misha Plagis Lawyer University 148 Jędrzej Maśnicki European University Institute 67 University of Helsinki 152 Max Planck Institute 199 Freie Universität Berlin 117 Hendrik Lubbe University of Warsaw 176, 315 Nadiv Mordechay Zoran Oklopcic Paolo Passaglia Sébastien Platon North-West University 209 Michele Massa Hebrew University 29, 83 Carleton University 139 University of Pisa 55 University of Bordeaux 323 Nicola Lupo Università Cattolica Eduardo Moreira Phoebe Okowa Alan Paterson Aurora Plomer Luiss Guido Carli University 99 del S. Cuore 233 Federal University Queen Mary University 11 Strathclyde University 290 University of Bristol 172 Guy Lurie Carissima Mathen of Rio de Janeiro 40, 269 Tarik Olcay Jaclyn Paterson Kálmán Pócza The Israel Democracy Institute 259 University of Ottawa 296 Violeta Moreno-Lax University of Glasgow 248 Northumbria University 270 HAS Center for Political Science 305 Andrew Lynch Magda Matusiak-Frącczak Queen Mary University Anna Olijnyk Kyriaki Pavlidou Olga Podoplelova University of New South Wales 290 University of Lodz 273 of London 72 University of Adelaide 61 Free University of Berlin 113 National Research University 291 Orla Lynskey Juan A. Mayoral Elisabetta Morlino Angela Oliveira Kostantin Peci Karolina Podstawa LSE Law Department 245 University of Copenhagen 175, 258 University of Brazil’s Office of the Luiss University 239 University of Lodz 67, 273 Masri Mazen Naples Suor Orsola Prosecutor General 132 Franco Peirone Mark A. Pollack M City University London 259 Benincasa 109, 238, 239 Elena Alina Ontanu NYU School of Law 301 Temple University 127 Jedrzej Mazonicki Mariana Mota Prado Research Institute on Petra Pekkanen Oreste Pollicino Cormac Mac Amhlaigh University of Warsaw 176, 315 University of Toronto 200 Judicial Systems 58 Lappeenranta University 58 Bocconi University of Edinburgh 164, 218 Kasey McCall-Smith Jacqueline Mowbray Brian Opeskin Guilherme Pena de Moraes University 93, 144, 274, 296 Benedita Mac Crorie University of Edinburgh 156 University of Sydney 123 University of Technology 290 Fluminense Federal Monika Polzin University of Minho 143 Audrey McFarlane David Moya Stefano Osella University 40, 269 University of Augsburg 223 Vanessa MacDonnell University of Baltimore 89 University of Barcelona 206 European University Institute 252 Simone Penasa Elena Pontelli University of Ottawa 253 Beverley McLachlin Conrad Bosire Mugoya Ilaria Ottaviano University of Trento 167 IMT ALTI STUDI LUCCA 128 Pedro Machete Canadian Judicial Council 9 University of University of Roma Tre 45 Paula Pereira Thomas Poole Catholic University of Portugal 261 Juan Manuel Mecinas Montiel the Western Cape 92 Tormod Otter Johansen Federal University 269 The London School of Economics Malcolm MacLaren CIDECentro de Cliodhna Murphy University of Gothenburg 262 Thomaz Pereira and Political Science 195 University of Zurich 189 Investigación y Docencias Maynooth University 72 Jannemieke Ouwerkerk FGV Direito Rio 97, 183, 254 Mihai Popa Miguel Maduro Económicas 97 Tuomas Mylly Leiden University 308 Vlad Perju Hellenic Foundation for European University Institute 315 Dimitriy Mednikov University of Turku 173 Jørn Øyrehagen Sunde Boston College Law School 94 European and Foreign Policy 243 Andrea Magliari Institute for Law and University in Bergen 74 Karni Perlman Patricia Popelier University of Trento 46 Public Policy 292 N Asli Ozcelik Olcay Haim Striks School of Law, University of Antwerp 36, 98, 245 Sabine Mair Tamar Megiddo University of Glasgow 54 College of Management Francisca Pou Giménez European University Tel Aviv University 38 Giulio Napolitano Levent Emre Özgüç Academic Studies 291 ITAM 254 Institute 164, 190 Joana Mendes Roma Tre University 101, 200 Koc University 244 Vilhelm Persson Anastasia Poulou Christophe Majastre University of Francesco Natoli Ceren Ozgul Lund university 262 Max Planck Institute 113, 191 FRS-FNRS/ Luxembourg 90, 163, 200 Université Paris Ouest Grassrootsobilise 243 Anne Peters Catherine Powell Université Saint-Louis 86 Mario Mendez Nanterre La Défense 135 Utku Öztürk Max Planck Institute for University of Notre Dame 320 Sylwia Majkowska-Szulc Queen Mary University 195 Ulla Neergaard KOC University 244 Comparative Public Law Emilia Justyna Powell University of Gdańsk 176 Parvathi Menon University of Copenhagen 104 and International Law 33 Fordham University 263 Elaine Mak Max Planck Institute 120 Yota Negishi P Felix Petersen Zoltán Pozsár-Szentmiklósy Utrecht University 246, 292 Eugenie Merieau Waseda University 43 University of Copenhagen 297 Eotvos Lorand University 248 Stavros Makris Sciences - Po Paris 217 Jaclyn L. Neo Marco Pacini Hanne Petersen Jenny Preunkert EUI 42 Michelle Miao National University Bank of Italy 45 Humboldt Universität 105 University of Oldenburg 59 Leandro Mancano The Chinese University of Singapore 77, 183, 284, 285 Octaviano Padovese Niels Petersen Elena Pribytkova University of Edinburgh 309 of Hong Kong 264 Luísa Neto Hamburg Universität 154, 216 University of Münster 77, 279 University of Basel 305 Rafal Mańko Hans Micklitz Faculdade de Direito Michaic Padziora Bilyana Petkova Jose Gustavo Prieto Munoz University of Amsterdam 121 European University Institute 234 da Universidade do Porto 143 310 Maastricht University 275, 287 University of Verona 214 Giulia Mannucci Samuli Miettinen Dwight Newman Tania Pagotto Jan Petrov Athanasios Psygkas University of Florence 300 Tallinn University 308 University of Saskatchewan 303 Foscari University of Venice 160 Masaryk University 236 University of Bristol 172

Participants 344 Participants 345 Dana Pugach Céline Romainville Kim Lane Scheppele Catalina Smulovitz Thomas Streinz Hans-Jörg Trenz Ono Academic College 208 University of Louvain 246 University of Universidad Torcuato Di Tella 132 NYU School of Law 253 University of Copenhagen 104 Marcio Pugliesi Andrea Romano Toronto 50, 115, 144, 181 Claire-Michelle Smyth Maarten Stremler Bosko Tripkovic Pontifícia Universidade University of Rome 258 Paul Scherer University of Brighton 138 Tilburg Law School 323 Birmingham Law School 190 Católica de São Paulo 40 Graziella Romeo Humboldt University 219 Tommaso Soave Franciszek Strzyczkowski Elizabeth Trujillo Elisabetta Pulice Bocconi University 256 Dagmar Schiek Graduate Institute of University of Lodz 297 University of Texas at Austin 96 University of Trento 167 Francisco Javier Romero Caro Queens University 104 International and Yen-tu Su Lee Jack Tsen-Ta University of the Basque Country 55 Stephan Schill Development Studies 217 Institutum Iurisprudentiae 270 Singapore Management Q Francesca Rosa University of Amsterdam 141 Irene Sobrino Guijarro Julie Suk University 201 University of Foggia 256 Stefan Schlegel University of Seville 304 Yeshiva University 33, 228, 241 Nino Tsereteli Haibin Qi Roni Rosenberg Max Planck Institute 160, 161, 264 Iyiola Solanke Raanan Sulitzeanu-Kenan Masaryk University 74, 238 Central China Tel Aviv University 87 Dana Schmalz University of Leeds 39, 89 The Hebrew University Anna Tsiftsoglou Normal University 158 Evan Rosevear Cardozo School of Law 123 Oleg Soldatov of Jerusalem 89 London School of Economics 298 University of Toronto 316 Maria-José Schmidt-Kessen Università Commerciale Nimer Sultany Lilian Tsourdi R Mimma Rospi European University Institute 42 Luigi Bocconi 202 University of London 267 European University Institute 129 University of Pisa 57 Eugene Schofield-Georgeson Ximena Soley Silvia Suteu Yuichiro Tsuji Danielle Rached Andrea Rovagnati University of Technology 298, 320 Max Planck Institute 250 University College London 70 University of Tsukuba 306 University of São Paulo 314 State University of Milan 167 Bas Schotel Alexander Somek Yu-Yin Tu Klodian Rado Yaniv Roznai University of Amsterdam 68 University of Vienna T Tamkang University 211 Osgoode Hall Law School 293 University Angela Schwerdtfeger School of Law 65, 153 Juha Tuovinen Biancamaria Raganelli of Haifa 29, 139, 181, 249, 285 Friedrich-Schiller-Universität Hilary Sommerlad Sanne Taekema European university institute 103 University of Rome Rafael Rubio Jena 185 University of Leeds 39 Erasmus University Valerio Turchini Tor Vergata 298 Ministry of the Presidency and Anat Scolnicov Jiewuh Song Rotterdam 114, 163, 144, 286 University of Tuscia-Viterbo 109 Giada Ragone Territorial Administrations 187 Winchester University 321 Seoul National University 145 Giacomo Tagiuri Marko Turudic University of Milan 167 Ruth Rubio Marin Joshua Segev Maxim Sorokin Bocconi University 323 University of Zagreb 323 Sabrina Ragone University of Seville 70, 108, 227 Netanya Academic College 68, 265 National Research University 321 Michal Tamir Mark Tushnet Max Planck Institute 96 Susana Ruiz-Tarrias Guy Seidman Lorne Sossin The Academic Center Harvard Jothie Rajah University of Granada 223 The Radzyner School of Law 101 York University 33 of Law and Science 87, 88 Law School 49, 77, 147, 187, 232 American Bar Foundation 51 Natalia Sekretaryeva Giovanna Spanó Antonio Tanca Gonzalo A. Ramírez-Cleves S Institute for law and School of Advanced Studies 56 Universita di Milano 116 U Universidad Externado Public Policy 292 Anne-Katrin Speck Amnart Tangkiriphimarn de Colombia 30, 96 Camilo Saavedra Maciej Serowaniec Middlesex University 237 Thammasat University 146 Güneş Ünüvar Narissa Ramsundar Supreme Court of Justice 187 Nicolaus Copernicus University 198 Huub Spoormans Eljalill Tauschinsky University of Copenhagen 111 Queen Mary University 208 Alicia Isabel Saavedra-Bazaga Xavier Seuba Open Universiteit Deutsche Universität 69 Maksim Usynin Sofia Ranchordas European University Institute 194 Université de Strasbourg 173 Nederland 159, 203 Diletta Tega University of Copenhagen 215 University of Leiden 216, 298 Urška Šadl Gianluca Sgueo Taylor St. John University of Bologna 185 Jerfi Uzman Mikael Rask Madsen European University New York University 45 University of Oslo 127 Hans-Martien ten Napel Leyden University 121, 281 University of Copenhagen 7, 11, 65, Institute 174, 190 Ayelet Shachar Fulvia Staiano Leiden University 121, 256 286 Maja Sahadžić University of Toronto 147 Italian National Mayu Terada V Zane Rasnača University of Antwerp 56 Yoon Jin Shin Research Council 220 International Christian University 216 European University Institute 102, András Sajó WZB Berlin Michaic Stambulski Bruck Teshome César Vallejo 191 Central European Social Science Center 145 University of Wroclaw 310 Hebrew University 117 Universidad Externado Fabio Ratto Trabucco University 10, 144, 181 Adam Shinar Catalin Gabriel Stanescu Yvonne Tew de Colombia 295 University of Venice 198 Janne Salminen Radzyner Law School 259 University of Copenhagen 122 Georgetown University 29, 82 Anne van Aaken Clara Rauchegger University of Turku 152 Agon Sivan Shlomo Tine Stein Malcolm Thorburn University of European University Institute 130 Elizabeth Salmón Bar-Ilan University 180 University of Kiel Westring 64 University of Toronto 157 St. Gallen 179, 180, 260, 261 Sara Razai Pontifical Catholic University 148 Reva Siegel Talya Steiner Giulia Tiberi Lukas van den Berge University College London 122 Inger-Johanne Sand Yale University 228 Hebrew University 89 University of Insubria 115, 116 Erasmus School of Law 114 Signe Rehling Larsen University of Oslo 266 Janine Silga Scott Stephenson Marta Tomasi Martijn van den Brink London School of Economics Judit Sandór University of Luxembourg 225 The University of Melbourne 61, 287 Free University of Bozen/Bolzano 166 European University Institute 235 and Political Science 145 Central European University 182 Jack Simson Caird Max Steuer Maxim Tomoszek Steven Van Garsse Amnon Reichman Boaz Sangero House of Commons 62 Comenius University 265, 279 Palacký University 279 University of Antwerpen 193 University of Haifa 271 College of Law & Business 87 Katarína Šipulová Bryan Stevenson Veronika Tomoszkova Josephine van Zeben Dominik Rennert Catarina Santos Botelho Masaryk University 94, 251 Equal Justice Initiative 7 Palacký University 221 University of Oxford 189 Humboldt University 320 Catholic University Fritz Edward Siregar Hamish Stewart Khemthong Tonsakulrungruang Luca Pietro Vanoni Pablo Riberi of Portugal 143 Indonesia Jentera School University of Toronto 157 Chulalongkorn Univesity 51 Università degli Universidad Nacional Jenna Sapiano of Law 161, 218 Nico Steytler Neus Torbisco-Casals Studi di Milano 150 de Córdoba 48 University of St Andrews 203 Poonthep Sirinupong University of the Graduate Institute of Antoine Vauchez Thomas Riesthuis Iwan Satriawan Thammasat University 307 Western Cape 36, 92 International and Pantheon-Sorbonne University 66 Erasmus University Muhammadiyah University of Britta Sjoestedt Øyvind Stiansen Development Studies 108 Grigory Vaypan Rotterdam 114, 163 Yogyakarta 162 Lund University 203 University of Oslo 237 Marcelo Torelly Institute for Law and Ilton Robl Filho Matthew Saul Izabela Skomerska-Muchowska Rowie Stolk The University of Brasília 106 Public Policy 291 University of Passo Fundo 81 University of Oslo 255 University of Lodz 273 Leiden Law School 221 Aida Torres Pérez Mariana Velasco Rivera Neliana Rodean Andrej Savin Achilles Skordas Gila Stopler Pompeu Fabra University 80 Yale Law School 84 University of Verona 168, 169, 307 Copenhagen Business School 274 University of Copenhagen 105, 133 College of Law and Business 147 Jubran Manal Totry Roxan Venter Mariana Rodrigues Canotilho Mario Savino Daniel Smilov Edoardo Stoppioni Bar Ilan University 216 University of University of Coimbra 79 Tuscia University 207 University of Sofia 181 Max Planck Institute 199 Ioanna Tourkochoriti Johannesburg 159, 276 Mary Rogan Lucia Scaffardi Terry Smith Peter Strauss School of Law Ingo Venzke Trinity College 210 University of Parma 215 DePaul University 89 Columbia Law School 34 NUI Galway 248, 296, 297 University of Amsterdam 163

Participants 346 Participants 347 Lieselot Verdonck Marlene Wind Ghent University 100 University of Copenhagen 258 Sergio Verdugo Sabrina Wirtz Notes New York University Maastricht University 193 School of Law & Thomas Wischmeyer Universidad del Desarrollo 96 Institut für Staats- Sarah Verstraelen wissenschaft und Research Foundation Flanders 98 Rechtsphilosophie 275 Francesco Viganò Cindy Wittke Università Bocconi 213, 296 University of Konstanz 203 Giulio Enea Vigevani Jens Woelk University of Milan 275 University of Trento 256 Benedetta Vimercati Charlotte Woodhead State University of Milan 167 University of Warwick 311 Teresa Violante Kathryn Wright Nova University of Lisbon 60 University of York 171 Lorenza Violini Anna Wyrozumska University of Milan 166, 168 University of Lodz 272 Micaela Vitaletti Mirosław Wyrzykowski Primary affiliation 310 University of Warsaw 177 Luis Viveros Montoya University College London 54 X Oleksandr Vodiannikov Judicial Reform Council 180 Napoleon Xanthoulis Valentina Volpe College London 171 Lille Catholic University 238 Jochen von Bernstorff Y University of Tübingen 35, 226 Armin von Bogdandy Po-Jen Yap Max Planck Institute 144 University of Hong Kong 44, 95 Dragica Vujadinovic Katie Young Political Theory 288 Boston College 32 Ladislav Vyhnánek Masaryk University 93, 185, 265 Z

W Juliano Zaiden Benvindo University of Brasilia 83, 97 Shucheng Wang Fred Felix Zaumseil City University of Hong Kong 306 WZB Berlin Catherine Warin Social Science Center 268 University of Luxembourg 281 Limor Zer-Gutman Sophie Weerts Haim Striks School of Université de Neuchâtel 245 Law, College of Management Joseph H. H. Weiler Academic Studies 291 European University Institute 8 Jan Zglinski Henrik Wenander High Court of Hamburg 190 Lund University 262 Xiaobo Zhai Mattias Wendel the University of Macau 268 Humboldt University 86 Paolo Zicchittu Diego Werneck Arguelhes University of Milan-Bicocca 116 Fundacao Getulio Uri Zilbersheid Vargas Law School 97, 183 University of Haifa 282 Jonathan White Roman Zinigrad LSE 153 Yale University 315 Luthfi Widagdo Eddyono Jan Zobec The Constitutional Court Republic of Slovenia, of Indonesia 162 Constitutional Court 261 Micha Wiebusch Beke Zwingmann SOAS/IOB 106 Cardiff University 151 Irene Wieczorek Alain Zysset University of Cambridge 308 University of Oslo 213, 255 Chris Wiersma Ghent University 319 Ralph Wilde University College London 207 Javier Wilenmann Universidad Adolfo Ibáñez 157 Michael Wilkinson LSE 50, 145, 285

Participants 348 Notes 349 Notes 350 Notes 351 With the collaboration of

2017 ICON  S Conference Organizing Committee

Richard Albert ( Boston College Law School ) Lorenzo Casini ( IMT School for Advanced Studies of Lucca ) Rosalind Dixon ( University of New South Wales ) Nico Krisch ( Graduate institute of Geneva ) Mikael Madsen ( University of Copenhagen, iCourts ) Phoebe Okowa ( Queen Mary, University of London ) Joseph H. H. Weiler ( NYU )

2017 ICON  S Conference Organization

Lorenzo Casini and Maria Lotz with Malene Vinberg Johansen, Funded by in collaboration with: Anna-Sophie Emilie Bager, Oscar Borg, Mikkel Jarle Christensen, Martin Lolle Christensen, Juan Antonio Mayoral Diaz-Asensio, Stine Hellqvist Frey, Claudia Golden, Julie Hansen, Johanne Keiding, Sharon O’Carroll Khan, Rasmus Kidde, Klara Winther Kiselberg, Henrik Stampe Lund, Julia Katinka Bergholt Løcke, Rasmus Glud Madsen, Malene Magaard, Phillip Ballieu Martens, Matias Means, Simon Lund Meyer, Helle Pedersen, Stine Resen, Ann-Sofie Schjerlund, Lykke Sennels-Andersen, Marianne Soucy, Michael Herløv Corvenius Tarris, Heidi Thornsvad. With the support of Design: Happy Little Accidents, Leipzig, Germany Printing: Mercoprint, Albertslund, Denmark

The International Society of Public Law ( ICON  S ) 40 Washington Square South, New York New York 10012 United States www.icon-society.org [email protected] Twitter: @_ICON_Society N ICON  S CONfereNCe e COurtS, POwer, PublIC law G

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