Vienna Journal on International Constitutional Law
ISSN 1995-5855 (Online)
The Right to an Unchanging World – Indirect Expropriation in International Investment Agreements and State Sovereignty
Abstract: This paper examines indirect expropriation in international investment agreements and compares current foreign investments protection with property protection in the XIXth century USA, when the US Supreme Court adhered to an abstract and de-physicalized conception of property later contested by legal realists. Its central claim is that investor state arbitration poses a serious and underestimated challenge to state sovereignty, granting arbitrators a ‘proto-constitutional’ power of judicial review on regulatory powers, including the legislative one. Moreover, the indeterminacy of indirect expropriation leads to a potential transformation of property rights protection that could eventually give transnational enterprises a new ‘right to an unchanging world’, as the US Supreme Court did more than a century ago, albeit this time on a global scale.
Explaining Death Penalty Clemency in the Socialist Republic of Vietnam from 1986 to 2015
Abstract: Regarding the operational specifics of death penalty policy, David T Johnson and Franklin E Zimring have argued that it is extreme left or right wing authoritarian states’ aversion to a limitation of their own powers that determines high rates of executions in countries such as Vietnam, Singapore, China and North Korea as opposed to other, less-punitive Asian nations which share similar cultural and religious characteristics. For a regime like Vietnam’s, the swift carrying out of a death sentence, especially when performed in public, serves to highlight the state’s power over life and death and enhance political control over the domestic constituency. At first glance then, little scope for the exercise of the clemency power as a form of lenient reprieve from the death sentence by the executive government appears possible under a repressive regime of this nature. However, unlike China and Singapore, a notable feature of Vietnam’s death penalty practice since the Doi Moi reforms of 1986 has been the executive’s willingness to reprieve a large minority of prisoners sentenced to death through Presidential clemency, even though executions themselves have continued. What official and unofficial justifications have been given for grants of Presidential clemency in Vietnam, and relatedly, what structural and cultural factors explain the use of clemency in a noticeable proportion of death penalty cases? These are the under-researched questions I provide plausible explanations for in this article, incorporating an empirical study of Vietnam’s death penalty clemency grants since the mid-1980s, interpreted through the lens of the relevant academic literature on clemency and pardon grants.
Constitutional Changes and the Incremental Reductions of Collective Religious Freedom in Hungary
Abstract: In the period from 1989 to the present day, Hungary twice changed its constitution and the framework of state-religion relations. In 2011/2012, its most recent constitution, the Fundamental Law was introduced, and with it new legislation on church-state relations, bringing with it an effect of de-registering a number of formerly-recognized smaller religious communities. The European Court of Human Rights in 2014 held these effects to be partially contrary to European human rights standards. I argue that, far from being an aberration, ‘the new church-state regime’ of 2012 represents the formal solidification of the already-operative mode of the 1989-2011 Hungarian church-state system. The Fundamental Law and new legislation on church-state relations merely built on an existing establishment and went on to formally legalize an already present status-based two-tier cooperationist regime between church and state, formally establishing historical churches while converting previously formally equal but de facto unequal smaller religious communities to a status of formal inequality. The positive neutrality stance of the Hungarian Constitutional Court toward state-church relations in the period 1989-2011 transformed applicable constitutional provisions of the previous 1989 Constitution guaranteeing liberal formal equality of religions and separate functioning of church and state into demands for positive neutrality, consequently providing partial legitimacy for the devolution of smaller religious communities to the inferior status of associations after 2012. Against such a background, the influence of the ECtHR and other international and European bodies, which are critical of the direction of state-church relations and politics in Hungary, in general appear limited, and will likely depend upon on-the-ground mobilization in resistance to – or in support of – changes or status quo.
‘Last Resort – Association for Self-Determined Death’: The Freedom of Association within the Two-Track System of Judicial Review in Austria
The refusal to found an association interferes with the freedom of association, but does the same apply to every violation of the ‘simple law’ implementing and shaping the fundamental right? The present decision is a further step towards demonstrating the change in the Constitutional Court’s scope of scrutiny. After this modification became visible for the freedom of assembly, the Constitutional Court has applied the same standard for the second time now to the freedom of association.
The Court decided that the regulation of postal voting for the Romanian citizens domiciled or resident abroad is aimed at ensuring the highest participation of the Romanian citizens in the electoral process, taking account of the need to apply in full the principle of universal suffrage. The regulation shall ensure a fair balance between universal suffrage on the one hand, and free and fair elections as well as direct, secret and free suffrage, on the other.
Croatian Constitutional Court: Suspension of the New Family Act, and ‘Re-Enacting’ the Old One
Upon promulgation of the 2014 Family Act which entirely replaced the earlier Act of 2003, numerous complaints were filed to the Constitutional Court requesting its revision. As the number of complaints was enormous the Court decided to temporarily suspend the Act of 2014 and reinstate the 2003 Familiy Act for the time needed to make a proper decision considering all the submitted complaints.