Debate sobre mi libro, UPF lunes 2 diciembre 2013

Lunes 2 diciembre 2013

14:00-15:30h

LLOC : 40.249

La complejidad constitucional de la Unión Europea

Giuseppe Martinico, Garcia Pelayo Fellow, Centro de Estudios Políticos y Constitucionales

Universitat Pompeu Fabra, Barcelona
Area de Dret Constitucional

c/ Ramon Trias Fargas, 25-27

08005 Barcelona

Analogy Argumentation in Law: A Dialectical Perspective

Harm Kloosterhuis 

Erasmus School of Law; Erasmus University Rotterdam (EUR)
November 21, 2013

Abstract:      

In this paper I investigate the similarities between the dialectical procedure in the pragma-dialectical theory and dialectical procedures in AI and Law. I do this by focusing on one specific type of reasoning in law: analogy argumentation. I will argue that analogy argumentation is not only a heuristic for finding new premises, but also a part of the justification of legal decisions. The relevant criteria for the evaluation of analogy argumentation are not to be found at the logical level of inference, but at the procedural level of the discussion. I will proceed as follows. I start with an outline of Prakken's theory of argumentation frameworks and procedural models. Then, I will discuss Peczenik's analysis of analogy argumentation and try to combine it with the descriptive-normative research of MacCormick and Summers. Finally, I propose a systematization of the criteria for the evaluation of analogy argumentation within the framework of a pragma-dialectical notion of an argumentation scheme.

Number of Pages in PDF File: 12

Keywords: analogy argumentation in law, analogical reasoning in law, dialectical perspective

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2357945

Lost at Sea: The Euro Needs a Euro Treasury

Jörg Bibow 

Skidmore College - Department of Economics; Bard College - Levy Economics Institute
November 21, 2013

Levy Economics Institute, Working Paper No. 780 
Abstract:      

The euro crisis remains unresolved even as financial markets may seem calm for now. The current euro regime is inherently flawed, and recent reforms have failed to turn this dysfunctional regime into a viable one. Our investigation is informed by the “cartalist” critique of traditional “optimum currency area” theory (Goodhart 1998). Various proposals to rescue the euro are assessed and found lacking. A “Euro Treasury” scheme operating on a strict rule and specifically designed not to be a transfer union is proposed here as a condition sine qua non for healing the euro’s potentially fatal birth defects. The Euro Treasury proposed here is the missing element that will mend the current fiscal regime, which is unworkable without it. The proposed scheme would end the currently unfolding euro calamity by switching policy from a public thrift campaign that can only impoverish Europe to a public investment campaign designed to secure Europe’s future. No mutualization of existing national public debts is involved. Instead, the Euro Treasury is established as a means to pool eurozone public investment spending and have it funded by proper eurozone treasury securities.

Number of Pages in PDF File: 64

Keywords: Euro Crisis, Currency Union, Fiscal Union, Transfer Union, Cartalism, Lender of Last Resort, European Integration

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2358070

Sovereign Bonds and the Conflict of Laws: A European Perspective

Pietro Franzina 

University of Ferrara, Italy - Department of Law
November 21, 2013

Forthcoming in Studi in onore di Luigi Costato, in press – Editorial board: Pasquale Nappi, Giulio Sgarbanti, Paolo Borghi, Luigi Russo, Cristiana Fioravanti, Silvia Manservisi, Chiara Agostini, Marco Borraccetti, Sebastiano Rizzioli 
Abstract:      

This paper provides an account of the rules whereby courts sitting in a Member State of the European Union should decide conflict-of-laws issues relating to loans contracted by States or State-related entities involving the issue of bonds, thereby identifying the country whose legislation must govern the rights and obligations of the bondholders and of the issuing entity. After discussing the peculiar features of sovereign bonds when viewed from a conflict-of-laws perspective, the paper focuses on the choice-of-law clauses almost invariably included in the loans and on the rules governing such clauses pursuant to regulation no. 593/2008 of 17 June 2008 on the law applicable to contractual obligations (the “Rome I” regulation). The article goes on to determine the issues that must be deemed to be governed by the lex contractus and on the possible exceptions to the operation of conflict-of-laws rules, including the rules on choice of law, in accordance with the said “Rome I” regulation. In particular, the paper explores the way in which, and the extent to which, overriding mandatory provisions and the public policy exception may have a role to play in the global governance of sovereign debt crises, balancing the concerns and expectations of creditors, on the one hand, and the interests of distressed sovereign debtors and their populations, on the other.

Number of Pages in PDF File: 23

Keywords: Private international law, Sovereign debt, Conflict of laws, Contractual obligations, European Union

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2358069

Originalism and the Unwritten Constitution

Lawrence B. Solum 

Georgetown University Law Center
November 22, 2013

Abstract:      

In his book, America’s Unwritten Constitution, Akhil Reed Amar contends that to properly engage the written Constitution, scholars and laymen alike must look to extratextual sources: among them America’s founding documents, institutional practices, and ethos, all of which constitute Amar’s “unwritten Constitution.” In this Article, I argue that contemporary originalist constitutional theory is consistent with reliance on extraconstitutional sources in certain circumstances. I establish a framework for revaluating the use of extratextual sources. That framework categorizes extratextual sources and explains their relevance to constitutional interpretation (the meaning of the text) and constitutional construction (elaboration of constitutional doctrine and decision of constitutional cases). I conclude by applying the framework to a question posed by Akhil Amar: Can vice presidents preside over their own trial upon impeachment? A negative answer to this question is consistent with an originalist constitutional theory that carefully cabins the use of extratextual sources in constitutional interpretation and construction.

Number of Pages in PDF File: 50

Keywords: Originalism, Constitution, Interpretation, Construction, New Originalism, Akhil Reed Amar, Unwritten, Impeachment

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2358423

Belpietro v. Italy: Does Parliamentary Privilege Extend to the Press?

Ronan Ó Fathaigh 

Ghent University

Dirk Voorhoof 

Ghent University - Faculty of Political and Social Sciences
October 1, 2013

European Human Rights Cases, 2013, Vol. 14, No. 12 
Abstract:      

In Belpietro v. Italy, the European Court of Human Rights reviewed the conviction of a newspaper editor for publishing a defamatory article written by an Italian senator targeting a number of public officials. Criminal proceedings against the senator were dropped as the newspaper article was considered to be covered by parliamentary immunity. The European Court held that the editor’s conviction did not violate the right to freedom of expression; however, the Court did hold that the sanctions imposed (including a suspended four-month prison sentence) were disproportionate. While the Court’s ruling on the sanctions point is correct, this article questions whether the Court’s main ruling on the editor’s criminal liability is consistent with the Court’s prior case law. Further, the issue of parliamentary immunity is explored, and in particular, whether this immunity should extend to protecting editors from criminal prosecution.

Number of Pages in PDF File: 11

Keywords: European Convention on Human Rights. Freedom of expression. Criminal defamation. Parliamentary Privilege. Chilling effect.

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2344641

La Cour Interaméricaine Des Droits De L'Homme: Entre Particularisme Et Universalisme (The American Convention on Human Rights: Between Particularism and Universalism)

Ludovic Hennebel 

Université Libre de Bruxelles (ULB)
September 9, 2008

Abstract:      

Ce papier propose une analyse de la nature et des spécificités du système interaméricain des droits de l'homme.

Analysis of the nature and specificities of the Inter-American Human Rights system.

Note: Downloadable document is in French.

Number of Pages in PDF File: 42

Keywords: American Convention, Human Rights, International Law, Universalism

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2322658

Constructed Functionalism: A Revisionist Framework for the Functional Analysis of Courts

Tommaso Pavone 

Princeton University - Department of Politics
November 17, 2013

Abstract:      

Courts are widely acknowledged to play an important role in constitutional systems, yet a unified, precise, and self-conscious theoretical framework for the functional analysis of judicial institutions remains lacking. In this light, the purpose of this paper is to propose a revisionist functional approach, which I term constructed functionalism, that draws heavily from, and modifies significantly, structural functionalist theory (from sociology) via the selective use of rational choice theory and more recent scholarship in public law and comparative legal institutions (from political science). The objective is to develop a more refined and explicit analytic theory of the functions that the preeminent legal institution – the court – serves in a given constitutional system, and to accomplish this in a way that can facilitate comparative analysis. Due to space constraints, the use of empirical examples is limited to providing illustrations of the framework’s components via brief case studies of noteworthy US Supreme Court cases.

Number of Pages in PDF File: 41

Keywords: function, functionalism, courts, constitutions, constitutional systems, judges, constitutional ideology

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2358777

Values, Diversity and the Justification of EU Institutions

Emanuela Ceva 

University of Pavia, Department of Political and Social Sciences

Gideon Calder 

University of South Wales
June 22, 2009

Political Studies, 57(4), 2009: 828-45 
Abstract:      

Liberal theories of justice typically claim that political institutions should be justifiable to those who live under them – whatever their values. The more such values diverge, the greater the challenge of justifiability. Diversity of this kind becomes especially pronounced when the institutions in question are supra-national. Focusing on the case of the European Union, this paper aims to address a basic question: what kinds of value should inform the justification of political institutions facing a plurality of value systems? One route to an answer is provided by John Rawls, who famously distinguishes between comprehensive and political values, and defends the exclusion of the former from the foundations of a political theory of justice. This paper questions the tenability of the Rawlsian solution, and draws attention to an alternative twofold conceptual distinction: that between minimal and non-minimal and between substantive and procedural values. Minimal values are meant to be as independent as possible of controversial conceptions of the good and views of the world, regardless of whether these are comprehensive or purely political. It will be argued that their endorsement may thus further specify the nature of what should be shared in order to justify political institutions in conditions of pluralism. In order to further refine the account of such basis of justification, two variants of minimalism will be presented according to whether they invest substantive or procedural values. Substantive values qualify the property of an outcome; procedural values qualify the property of a procedure. The latter part of the paper consists of a ‘face-off’ between minimal proceduralism and minimal substantivism, considering reasons in favour of the adoption of each. The result, we suggest, is a helpful reorientation of the political dimension of the value debates to which the multiplicity of values amid contemporary European horizons give rise.

Number of Pages in PDF File: 25

Keywords: Political justification, European Union, Pluralism, Minimalism, Proceduralism, Political values, Neutrality

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2354872

Plural Values and Heterogeneous Situations. Considerations on the Scope for a Political Theory of Justice

Emanuela Ceva 

University of Pavia, Department of Political and Social Sciences
July 1, 2007

European Journal of Political Theory, 6(3), 2007. pp. 359-375. 
Abstract:      

This paper aims to investigate the way in which a political theory of justice should respond to the endorsement of pluralism. After offering reasons in support of the necessity for such a theory to take pluralism seriously, an argument is put forward for its characterisation in minimal and procedural terms. However, taking issue with the straightforward relationship of implication identified by a number of scholars between pluralism and procedural justice, this paper contends that a direct relation can only be established between pluralism and the need to define a minimal theory of justice, i.e. a theory that assumes as little as possible in terms of values and views of the world. Its procedural formulation is seen, instead, as a consequence of the limited predictive power of theory facing the heterogeneous situations with which it is expected to deal.

Number of Pages in PDF File: 21

Keywords: Justice, Justification, Pluralism, Procedural Justice, Substantive Justice, Theories of Justice

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2354883

Institutional Design of Democratic Conditionality in Regional Organizations

Carlos Closa 

Consejo Superior de Investigaciones Científicas CSIC
June 1, 2013

EUI Working Paper Series RSCAS 2013/45 
Abstract:      

Democratic conditionality accession clauses have become increasingly common in certain international organisations. Similarly, provisions on suspension of membership because of breaches of democratic order have emerged. Why do regional organisations introduce these kin of clauses? In most cases, they developed after 1989 in a new geopolitical climate in which democratic ideals acquired normative hegemony. This does not exclude a purposive rational institutional design. On the one hand, accession clauses developed a posteriori of the creation of the organization being applied hence to new members rather to the ones creating them. These clauses have been used as an instrument for fostering clubness and imposing institutional features of applying states. On the other hand, in the case of suspension, institutional design serves to trade-off two competing principles: commitment to democratic conditionality and respect for sovereignty of member states and it does so by leaving wide discretion in implementing provisions for suspension clauses.

Number of Pages in PDF File: 27

Keywords: Institutional design, Comparative regional integration, Democratization

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2355307

EU Accession to the ECHR: Competence, Procedure and Substance

Paul P. Craig 

University of Oxford - Faculty of Law
November 12, 2013

Fordham International Law Journal, Vol. 36, No. 1115, 2013 
Abstract:      

The issues raised by EU Accession to the ECHR have already generated a valuable and growing literature. This article seeks to contribute to this literature. The discussion begins with an overview of the European Union’s competence to accede to the European Convention on Human Rights, and the process by which the Accession Agreement was negotiated. The focus then shifts to analysis of whether the EU needs its own Charter of Rights in addition to membership of the ECHR.

This is followed by examination of a range of procedural issues raised by EU accession to the ECHR. This includes the choices open to claimants when pursuing rights-based claims and the constraints placed on those choices resulting from EU accession to the ECHR. It will be seen that accession raises difficult issues concerning who should be the respondent and co-respondent in any particular case, and the manner in which a case concerning Convention rights is routed to the European Court of Human Rights. The new schema will moreover generate problems of delay.

The final section of the article addresses some of the prominent substantive issue raised by EU accession to the ECHR. This includes a re-assessment of the case law defining the relationship between the EU and the ECHR prior to accession and evaluation of the extent to which it is relevant post accession; discussion of the impact of accession on the autonomy of EU law; and consideration of the way in which the ECHR rights and Charter rights will interact in the future.

Number of Pages in PDF File: 38

Keywords: accession, fundamental rights, competence, procedure, autonomy

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2354975

Debating Europe's Justice Deficit: The EU, Swabian Housewives, Rawls, and Ryanair

Grainne De Burca 

New York University (NYU) - Law School

Dimitry Kochenov 

University of Groningen - Faculty of Law

Andrew Trevor Williams 

University of Warwick - School of Law
November 14, 2013

EUI Working Paper, LAW 2013/11, 2013 
Abstract:      

This edited working paper proposes a new way of appraising the process of European integration, taking the notion of Justice as a starting point. With a number of contributions from the leading theorists of EU integration as well as younger scholars and practitioners of European law, it adopts a multi-faceted approach to what the editors branded as a possible "justice deficit" in Europe, looking at procedural as well as substantive elements of justice, also connecting justice with legitimacy, democracy, the rule of law, and other key principles of European law. Taking justice seriously is no doubt an indispensable element of any mature constitutional system. In starting the debate on justice in the EU context and immediately involving a number of leading scholars into the debate, the working paper aims at bridging an important gap in our theorising of European integration and law by starting a wide exchange on the topic of key importance, which is the essence of Justice, informing the integration project in Europe.

The following scholars contributed to the debate: Daniel Augenstein, Richard Bellamy, Gráinne de Búrca, Daniela Caruso, Damian Chalmers, Gareth Davies, Sionaidh Douglas-Scott, Oliver Gerstenberg, Jane Holder, Dimitry Kochenov, Damjan Kukovec, Mattias Kumm, Justine Lacroix, Antonia Layard, Carole Lyons, Agustín J. Menéndez, Jürgen Neyer, Danny Nicol, Fernanda Nicola, Jiri Priban, András Sajó, Robert Schütze, Joanne Scott, Suryapratim Roy, Stavros Tsakyrakis, Juri Viehoff, Neil Walker, Michael Wilkinson, Andrew Williams and Floris de Witte.

Number of Pages in PDF File: 67

Keywords: EU Law, justice, legitimacy, justice deficit, democratic deficit, democracy, propostionality, justification, margin of appreciation, human rights, future of integration

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2354568

A Liberal Communitarian Paradigm for Counterterrorism

Amitai Etzioni 

George Washington University
November 13, 2013

Stanford Journal of International Law, Vol. 29, No. 2 (2013) 
Abstract:      

This paper argues that the current normative and legal paradigms that shape the Unived States' response to security threats posed by acts of transnational terrorism are misapplied. In the international arena, we should downplay states' right to sovereignty in favor of a paradigm that requires nation states not only to protect select common goods including the responsibility to protect (R2P), but also to observe a new duty, namely, not to harbor or support terrorists. With regard to those alleged terrorists who are captured, the current paradigm that treats them as criminals should be replaced with one that treats them as a distinct class of defendants, entitled to their own rights and procedures -- just as we deal differently with ex-cons, sex offenders, and many other classes of offenders. Finally, those terrorists faced in armed conflicts should be expected to abide by the rule of distinction and, if they violate it, they should bear part of the onus for the resulting collateral damage.

The paradigms most often employed in conceptualizing and legitimating counterterrorism campaigns -- the paradigms of war among nations and of law enforcement -- are ill-suited to meet new realities. The considerable policy mistakes, misjudgments, and above all, morally flawed positions that are caused by the misapplication of these concepts, point to a need for a distinct normative and legal paradigm for dealing with transnational terrorism. This Article focuses on the normative assumptions of such a paradigm, which have clear legal parallels. Further, this Article seeks to develop this distinct paradigm by situating it in ongoing transnational moral dialogues on the just and effective ways to combat terrorism. This distinct paradigm would benefit if it were consolidated into a new Geneva Convention in the future.

Number of Pages in PDF File: 42

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2354033

Subsidiarity and Robustness: Building the Adaptive Efficiency of Federal Systems

Jenna Bednar 

University of Michigan at Ann Arbor - Department of Political Science
November 14, 2013

Abstract:      

Subsidiarity - a systemic predilection for locating authority at the most local level feasible - has long been admired for its ability to protect localized, diverse interests from the tyranny of a national majority. In this article I suggest a novel benefit of subsidiarity: it boosts the adaptive efficiency of federal systems. To remain relevant, federal systems must adapt to meet changing circumstances. The process of adaptation involves both pushing federalism's boundaries in search of improved national-state balance, and selecting beneficial changes and rejecting harmful ones, a job most efficiently conducted by a set of diverse, complementary safeguards. By drawing a distinction between policy subsidiarity and safeguard subsidiarity, I describe how each form of subsidiarity contributes to the process of constitutional adaptation and federal system robustness.

Number of Pages in PDF File: 26

Keywords: federalism, evolutionary theory

Full text available: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2354314

Call for Papers

THE PRELIMINARY REFERENCE TO THE COURT OF JUSTICE OF THE EUROPEAN UNION

BY CONSTITUTIONAL COURTS

Seminar in memoriam of Gabriella Angiulli

organised by

the Centro di Studi sul Parlamento, LUISS Guido Carli of Rome,

in co-operation with the Centro interdipartimentale di ricerca e formazione

sul diritto pubblico europeo e comparato, University of Siena

28th & 29th March 2014

Venue: LUISS Guido Carli, Rome, Italy

Organizers: Maria Dicosola, Cristina Fasone, Irene Spigno

In an age of globalisation of markets, policies and law, European integration is undergoing an extraordinary expansion. This process, far from involving only the harmonisation of national legislation according to common principles, is underpinning the transformation of the nature of the European constitutional systems. According to many distinguished scholars, in fact, a multilevel system of sources and courts is re-defining the boundaries of European Law, which has now an inherent constitutional dimension.

Within this framework, the phenomenon of the so called ‘dialogue’ between domestic and European courts is particularly relevant. The ‘dialogue’ should be ‘taken seriously’ as far as it is generating a wide impact on the protection of fundamental rights of the individuals. Amongst the tools of cooperation between European Courts, the preliminary reference to the Court of Justice of the European Union (CJEU) by the Constitutional Courts is crucial.

Indeed, by their very nature, Constitutional Courts are sui generis courts because of their procedures of appointment, composition and functions, and most of them in the EU Members States have been engaged in a direct – by means of the preliminary reference procedure, as also the recent engagement of the French Conseil Constitutionnel (Decision n. 2013-314P QPC, 4th April 2013) and the Spanish Tribunal Constitutional (Order ATC 86/2011, 9th June 2011) shows us – or indirect ‘dialogue’ with the Court in Luxembourg, as regards the German Bundesverfassungsgericht (Decision n. BVerfGE 37, 271, 19th May 1974, and Decision n. 2 BvR 2661/06, 6th July 2010). The CJEU and the national Constitutional Courts often agree on the interpretation of EU Law and national (constitutional) law, but sometimes a clash of jurisprudences does appear, especially when it comes to balancing rights with the objectives of the European integration (see the examples of the European Arrest Warrant, of the Data Retention Directive, and ultimately of the enforcement of the Charter of Fundamental Rights in the EU, as in the Melloni case: Case C-399/11, 26th February 2013).

This issue was the topic of the Ph.D. thesis assigned to Gabriella Angiulli, to whom the conference is dedicated. Gabriella Angiulli was Ph.D. student at the University of Siena and teaching assistant at LUISS Guido Carli, where she graduated with a dissertation in Comparative Public Law in 2008.

The Conference will feature the participation of a number of distinguished scholars, including Thomas Beukers (European University Institute), Francesco Cherubini (LUISS Guido Carli), Monica Claes (Maastricht University), Melina Decaro (LUISS Guido Carli), Tania Groppi (University of Siena), Nicola Lupo (LUISS Guido Carli), Giuseppe Martinico (Centro de studios políticos y constitucionales-Scuola superiore Sant’Anna, Pisa), Oreste Pollicino (Bocconi University), Robert Schütze (Durham Law School), who have already confirmed their presence.

During the first day of the Conference (entirely in English), on Friday 28th March, the morning session will be devoted to the analysis by the invited scholars of the relationship amongst Constitutional Courts of the Member States, the CJEU, and the European Court of Human Rights; while the afternoon session will consist of a workshop of young scholars (PhD Students and Post-Doctorate Researchers) based on the presentations of the paper givers. The second day of the Conference (in Italian and in English), on Saturday 29th March morning, will deal with the Italian Constitutional Court’s attitude towards the preliminary reference proceedings.

The organizers invite the submission of paper proposals on the case-law of one or several Constitutional Courts in the EU Member States issuing preliminary references, or on a specific decision or set of decisions of Constitutional Courts on a particular subject (e.g. the constitutional identity of Member States) raised by preliminary references and rulings. Moreover, also abstracts on Constitutional Courts that have not issued a preliminary reference yet are welcome, possibly describing the relevant case-law in which a request for preliminary reference has been raised and why finally the tool has not been used.

ABSTRACT SUBMISSION PROCEDURE: Ph.D. Students and Post-Doctorate Researchers (who have completed their Ph.D. by no more than two years) interested in presenting a paper on this topic can submit an abstract (max. 500 words) and their CV by 22nd December 2013 at preliminaryreference@gmail.com. The results of the selection process will be notified by 10th January 2014 and the deadline for submitting papers at preliminaryreference@gmail.com will be 28th February 2014. Meals during the Conference and accommodation in Rome will be provided to the selected Speakers (the hotel will be reserved and paid for one or two nights depending upon logistics and travel origins).

Subject to a blind peer-review process, the papers submitted can be published in the LUISS School of Government Working Paper Series: http://sog.luiss.it/it/ricerca/working-papers.

For additional information, please contact Maria Dicosola (mdicosola@luiss.it), Cristina Fasone (cristina.fasone@eui.eu), or Irene Spigno (irene.spigno@unisi.it).

International Labour Law and the Challenge of Pluralism in the International Order

Janelle Marie Diller 

International Labour Organization (ILO)
October 12, 2013

Manchester Journal of International Economic Law, Vol. 10 Issue 2 (2013) 
Abstract:      

International labour law (ILL) is changing in the face of new realities of the world of work. Transnational value chains bring an increasingly complex web of relationships and responsibilities between workers and employers, suppliers and retailers, and even States receiving and generating income. In addition, more and more rules and practices refer to ILL in international economic and monetary cooperation, bilateral trading arrangements, and voluntary industry initiatives in social responsibility. The pluralistic nature of this situation deepens as public international organizations and non-state actors wield increasing influence over public policy choices affecting ILL which used to be made exclusively within States.

These realities pose new challenges to the fundamental aim of ILL for all human beings to have the opportunity for well-being through decent work under national law that guarantees fair competition and the rights of workers. To effectively protect workers in globalized production and society, ILL’s traditional paradigm of State sovereignty is evolving to accommodate new methods for designing regulatory responses and collective bargaining arrangements.

ILL offers a distinctive laboratory in which to evaluate the interaction and coordination of the exercise of public authority by international and regional organizations, and the impact of private industry and unions in transnational initiatives. Examples are presented to expose the type of normative and operational inconsistencies in rules for the conduct of States and other duty bearers that risk to deter ILL and its broader effect on development and peace. The outlook ahead combines direct international cooperation with public and private sectors in countries of need, the extension of ILL’s value by leveraging external international instruments invoking ILL, and an innovation of ILO’s own methods of work to new structures that are discernable in yet distinct from national legal systems.

Number of Pages in PDF File: 24

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2352036

Conventions, Constituent Assemblies, and Round Tables: Models, Principles and Elements of Democratic Constitution-Making

Andrew Arato 

New School for Social Research
2012

Global Constitutionalism, Vol. 1, No. 1, 2012 
Abstract:      

The article presents the Round Table form, elsewhere post-sovereign multi-stage constitution making as an independent democratic type superior to the alternatives. It locates the form along with Convention and Constituent Assembly both in a comprehensive typology based on models of regime transformation, as well as historically. After making a set of normative arguments comparing the three forms, focusing on the issue legitimation, I make a case for the synthetic nature of the Round Table in relation to the two important democratic predecessors. Finally, I reluctantly admit the path-determined nature of the Round Table that strictly speaking seems relevant only 1) in the transitions from dictatorships, if 2) new forces do not have the power to accomplish revolutionary change. Nevertheless, I argue that the principles of the Round Table (inclusion, consensus, publicity, legality and veil of ignorance) are relevant to other paths, from the point of view of their legitimation. I further claim with reference to Iraq, Turkey and the European Union that elements of the Round Table can be adopted even under conditions of revolutionary change, as well as constitutional reform.

Number of Pages in PDF File: 28

Keywords: Round Table, Interim Constitution, Convention, Constituent Assembly, Sovereignty

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2352293

Banishing the Sovereign? Internal and External Sovereignty in Arendt

Andrew Arato 

New School for Social Research

Jean L. Cohen 

Columbia University
2009

Constellations, Vol. 6, No. 2, 2009 
Abstract:      

According to Hannah Arendt “the great and, in the long run, perhaps the greatest American innovation in politics as such was the consistent abolition of sovereignty within the body politic of the republic, the insight that in the realm of human affairs sovereignty and tyranny are the same.” It is very clear that Arendt considers the American abolition of sovereignty to pertain to internal affairs only; first, because she explicitly says “within the body politic,” and second because she rightly implies that one of the points of forming a more perfect union by moving from a confederacy to a federal state in 1787 was to enhance external sovereignty. The task was to “reconcile the advantages of monarchy in foreign affairs with those of republicanism in domestic policy.” It would be absurd to call this a chance or careless remark, given the correspondence of its thrust with the intentions of the authors of The Federalist that had to be entirely clear to Arendt. But is it possible to leave external sovereignty untouched, while abolishing internal sovereignty?

The first part of this essay will explore the meaning of the abolition of sovereignty in Arendt’s work (I). We turn next to her conception of the American model of internal sovereignty (II) and then to the tenability of her analysis of the boundary between external and internal sovereignty in the American case (III). We provide an assessment of what is wrong with her model conceptually and historically (IV) and conclude with a proposal for a corrective in the spirit if not in the letter of her work (V).

Number of Pages in PDF File: 25

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2352304

From ICONnect http://www.iconnectblog.com/ Call for Papers: Conference on “Constitutionalism Across Borders in the Struggle Against Terrorism” Posted: 10 Nov 2013 11:04 AM PST International Association of Constitutional Law Research Group on Constitutional Responses to Terrorism Call for Papers for Conference at Harvard Law School (USA) – 6-7 March 2014 “Constitutionalism Across Borders in the Struggle Against Terrorism” On behalf of the IACL Research Group on Constitutional Responses to Terrorism, we hereby invite proposals in the form of abstracts for papers to be delivered at an international conference on “Constitutionalism Across Borders in the Struggle Against Terrorism” hosted by Harvard Law School, in Boston – Massachusetts (USA), on 6-7 March 2014. During the last two decades the struggle against terrorism has increasingly acquired a world-wide dimension. States have pooled their forces by coordinating their counter-terrorism policies in the framework of international or regional organizations. At the same time, states have resorted to transnational instruments of cooperation, for instance by sharing information on national security threats on a peer-to-peer basis. The recent disclosure about surveillance by the NSA has occasioned transnational disputes and concerns. We welcome proposals that seek to bring comparative analysis to bear on these new dynamics, from the perspective of national security and human rights. Issues that authors might want to address include, for example: - Constitutional challenges and opportunities arising from international institutions and obligations - Constitutional issues arising from EU and ECHR obligations and coordination - Constitutional challenges posed by transnational cooperation and divergence in counter-terrorism policy and practice - Constitutional questions about trans-border coverage and protection: who beyond a nation’s own citizens enjoy constitutional rights, and where do such rights apply? The conference will last a day and a half and will feature the participation, among others, of Martin Scheinin (President of the IACL and former UN Special Rapporteur on Terrorism and Human Rights), Lech Garlicki (Former Judge of the European Court of Human Rights), Savvas Papasavvas (Judge of the General Court of the EU), Kim Lane Scheppele (Princeton University), Erika de Wet (University of Pretoria) and Vicki Jackson, the host of the event at Harvard Law School. Abstract proposals of max. 300 words and the author’s cv should be emailed, along with any query, to federico.fabbrini@gmail.com by November 17, 2013. Once abstracts are accepted, papers of max. 6000 words will be due February 15, 2014 to permit exchange of drafts prior to the conference and possible inclusion in a publication with a top international publisher soon afterwards. Selected speakers are expected to bear their own costs for travel and accommodation. Convenors Prof. David Cole, Georgetown University, Research Group Chair Ass. Prof. Federico Fabbrini, Tilburg Law School, Research Group Coordinator

EU Citizenship for Latvian 'Non-Citizens': A Concrete Proposal

Dimitry Kochenov 

University of Groningen - Faculty of Law

Aleksejs Dimitrovs 

European Parliament
November 7, 2013

Jean Monnet Working Papers (NYU Law School) No. 14/13, 2013 
Abstract:      

This contribution embraces a purely utilitarian view of European Union law in suggesting a viable way to enlarge the horizon of opportunities of the holders of the so called “non-citizen” status in the Republic of Latvia, which is reserved for some ethnic minorities in that country and does not amount to the possession of full Latvian citizenship. It is argued that the extension of EU citizenship to the holders of this status can be helpful in the context of an ethnically divided society. It is demonstrated that such an extension is legally feasible and is in line with the doctrine of continuity on which the statehood of the Latvian Republic rests, implying virtually no economic or political internal cost.
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Number of Pages in PDF File: 32

Keywords: Non-citizens, Latvia, EU citizenship, Russian minority, Ethnic minorities, EU law, discrimination, baltic states, nationalism, EU law, Latvian constitution, Latvian citizenship, state continuity, statelessness

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2351181

Global Solutions, Local Damages: A Critical Study in Judicial Councils in Central and Eastern Europe

Michal Bobek 

College of Europe

David Kosar 

New York University School of Law
November 7, 2013

Department of European Legal Studies Research Paper in Law, 07/2013 
Abstract:      

This article examines why, how, and with what results have judicial councils spread under the influence of European institutions throughout Central and Eastern Europe in the course of the last twenty years. It first traces back how the judicial councils, themselves just one possible form of administration of courts, have emerged as the recommended universal solution Europe-wide and internationally. Second, it discusses how has this model been exported under the patronage of European and international institutions to transition countries in Central and Eastern Europe. Assessing, thirdly, the reality of the functioning of such new judicial councils in these countries, in particular in Slovakia and Hungary, with the Czech Republic without a judicial council providing a counter-example, it is suggested that their impact on further judicial and legal transition has been either questionable or outright disastrous. This brings, eventually, into question the legitimacy as well as the bare reasonableness of the entire process of European/international standards setting and their later marketing or in reality rather imposition onto the countries in transition.

Number of Pages in PDF File: 35

Keywords: International standards; soft law; European Union; Council of Europe; administration of courts; judicial councils; court presidents; judges; Central and Eastern Europe; transition; law exportation

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2351299