Vienna Journal on International Constitutional Law

ISSN 2306-3734 (Print)
ISSN 1995-5855 (Online)

Abstract: As a WTO member and one of the largest trading countries, China is subject to a series of rule-of-law related international obligations. Yet, China emphasizes ‘Chinese characteristics’, ‘rule by law’, and recently, ‘socialist ethics’. What is the impact of WTO law on China? This paper examines the WTO and Chinese regulatory frameworks in terms of adminis-trative review settings. Through reviewing the roles of self, law, and government under Confucianism and Chinese Legalism, this study finds that China generally adopts a Confucian internal regulatory framework based on self-regulation, which negates external control. The WTO law, however, assumes a Chinese Legalist like external regulatory framework based on control by rules in the form of checks and balances. The impact of WTO law on China, therefore, is about a battle between these internal and external frameworks at the opposite regulatory directions. On this battlefield, China seems not to be affected by the WTO yet.

Abstract: This article assesses whether the United Nations Security Council must respect human rights under international law when acting under Chapter VII of the United Nations Charter. It argues that the Security Council has to respect human rights enshrined in those human rights treaties drawn up under the United Nations’ auspices and in non-peremptory customary international law, when this is not incompatible with the Security Council’s objective of maintaining or restoring international peace and security. The analysis also argues however that the Security Council must comply with peremptory international human rights, with no exception. The paper concludes that Chapter VII action by the Security Council is limited only to a small extent by international human rights standards.

Abstract: This paper analyzes the path paved by the Italian Constitutional Court (ICC) in order to reconcile the series of its inconsistent judgments dealing with free trade, right to economic initiative, and freedom of competition. For this purpose, this article aims at investigating the role of the Italian Constitutional Court in the ‘constitutionalization’ of free trade and freedom of competition and at assessing the relationship between European Union policies and the Constitutional Court interpretation thereof. The last decade demonstrates, on the one hand, that the European Union law has influenced the domestic case law and, on the other hand, that, in turn, the European Union legal system has been ‘constitutionalized’ through the introduction of social and constitutional principles deriving from the Member States’ Constitutions.

For the first time, the Austrian Constitutional Court had to pronounce upon the merits of a complaint of a person claiming that her personality rights have been infringed during her hearing as a witness before a committee of inquiry of the National Council. The complainant claimed infringements of her rights to honour and to the protection of her economic reputation due to statements of committee members and the failure of the committee’s officials to intervene. The Court dismissed the complaint as unjustified on the merits, ruling that – in the light of the right to freedom of expression provided for in Article 10 ECHR – there has been no infringement of the complainant’s personality rights.

The Constitutional Court of Hungary recently delivered two important decisions concerning freedom of information. In both cases, the National Assembly attempted to curtail the transparency of the Central Bank and the Hungarian Mail, and the President of the Republic requested for an ex ante constitutional review. The decisions contain pivotal arguments concerning legal certainty and freedom of information, and can be read as proof that in the most crucial cases the Constitutional Court of Hungary still stands up against the majority of the parliament. However, it is worth mentioning that in the more straightforward case – the decision about the modification of the Act on the Central Bank of Hungary – there was a wide professional consensus on the unconstitutionality of the new rules. This consensus was supported by the opinion of the National Authority for Data Protection and Freedom of Information. The reasoning of the other decision which examines the new rules of the Postal Service Act could arguably be read in two different ways, as will also be elaborated in this paper.