Articles for category: English Articles

Damage-assessment on the building of international law after the Italian Constitutional Court’s decision no. 238 of 2014: no structural damage, just wear and tear.

This symposium invites reflections on the intercourse between national courts and international law, in light of the recent judgment of the Constitutional Court of Italy (no. 238 of 2014, of 22 October 2014). I briefly examine this judgment’s impact on international law in two respects. First, whether it can point to a new principle of international law. Second, whether it undermines international law as such. I have elsewhere summarised the main aspects of the ruling, and criticised its inward-looking approach. The Italian judges deliberately avoided engaging with international law and therefore their ruling serves, at most, as cheap-talk for the ... continue reading

15. Dezember 2014

No custom restricting state immunity for grave breaches ‒ well why not?

In a recent judgement (discussed here and here), the Italian Constitutional Court (CC) found that the Italian Constitution barred Italian courts from applying the ICJ’s judgement in Germany v. Italy (discussed here and here) and that the Italian laws implementing the judgement were unconstitutional. The CC did so without wandering off into the field of international law. It did however acknowledge the ICJ’s finding, that there was no customary international law exempting states from immunity in the case of grave breaches of international law. I would like to argue that this should not be the question, but rather that this ... continue reading

11. Dezember 2014

Of global cities and Gallic villages: tensions between constitutional and international law

The judgment by the Italian Constitutional Court of 22 October 2014 is but a first climax in a series of recent incidents evidencing the strained relationship between international and domestic law. In the United Kingdom, the Tories are currently debating whether they ought to exit the system of the European Convention on Human Rights (ECHR). And in Switzerland, a new popular initiative entitled »Swiss Law supersedes foreign law« has been announced; in addition, a member of government has formally asked to withdraw from the ECHR.

8. Dezember 2014

EU Free Movement as a Legal Construction – not as Social Imagination

Monetary union demonstrates that some EU projects are realised without preparation for all eventualities. In the case of the euro, the financial crisis revealed lacunae in the field of economic and budgetary supervision, which the euro countries had to bridge through the introduction of new instruments. In the case of Union citizenship the legal gaps are less dramatic, but nonetheless visible – in particular with regard to access to social benefits for persons who do not work. It was these uncertainties that the European Court of Justice (ECJ) had to confront in the Dano judgment of last Tuesday. It opts for a surprisingly conventional solution, which abandons earlier attempts to conceive of Union citizenship as a projection sphere for political visions of a good life and just society.

12. November 2014

Bicameralism and Political Legitimacy

To constitute a democratic order based on freedom and equality, the political system of a society needs to reflect its complexity. Processes of collective decision-making need to allow for the political expression of societal differentiation and diversity. Bicameralism is a crucial mechanism in this regard. Most basically, bicameralism means a diversification of political institutions. It establishes yet another layer of structural complexity within the legislative branch and the actual law-making procedure. It diffuses and decentres legislative power. Bicameral decision-making tends to articulate conflict rather than consensus. It allows for expressing certain aspects of political pluralism and disagreement. Although or maybe because bicameralism aims for legislation to be grounded in a more inclusive, comprehensive political consensus, bicameral decision-making tends to articulate conflict rather than accord. It therefore is of some intrinsic value and justification in societies that are internally heterogeneous and organized in politically self-governing sub-entities.

5. November 2014

The Italian reform of bicameralism: is the time ripe?

Italy's unique "perfect bicameralism" has often been criticized for its inefficiency. The latest attempt to reform it, brought forward by Prime Minister Matteo Renzi, is still debated in parliament. The destiny of the Italian bicameralism and the resolution of the Italian oxymoron lies on the thin line of the agreement between the main political forces, which seems quite frail and uncertain at the moment.

3. November 2014

Bicameralism: an antipodean perspective

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As outposts of the British Empire, the various state parliaments of Australia, and New Zealand as a whole, inherited the Westminster system of government with an elected lower house, in which government is formed, and an unelected house of review. In little under two hundred years, these parliaments have undergone a range of reforms, including democratisation of their upper houses. Two jurisdictions, however, took bolder steps: the Australian state of Queensland, and New Zealand, both demolished their upper houses entirely – with mixed results, at best.

28. Oktober 2014

The Belgian Senate: little damage, little use

The Belgian Senate has just emerged from a major State reform which has significantly reduced its competences. The absence of a federal political culture and the presence of a very strong party system make it hard for the Second Chamber to find a proper role in the political system of Belgium.

23. Oktober 2014

Two Faces of German Bicameralism

In times of small coalitions the face of bicameralism in Germany oftentimes expresses conflict and stalemate. On the other hand, there is the very different face of bicameralism in times of grand coalitions. These two alternating faces of German bicameralism result from a particular historical decision on constitutional design.

22. Oktober 2014

Ireland’s Senate: An Introduction

When the current Government proposed its abolition in a referendum in 2013, perhaps the most notable feature of the debate was the consensus on all sides that there is little, if any, justification for the retention of the Seanad in its current form. In a result that contradicted pre-referendum opinion polls, voters rejected the proposed abolition. Given the widespread agreement during the campaign about the inadequacy of the current institution, attention naturally turned to the question of how the Seanad might be reformed.

16. Oktober 2014