Vienna Journal on International Constitutional Law
ISSN 1995-5855 (Online)
Abstract: For decades, international law has denied the right to secede even if it enshrines self-determination. Existing scholarship explains this contradiction by opposing the right to self-determination and the principle of territorial integrity: self-determination itself does not justify a valid claim to the disputed territory. This article, against conventional wisdom, argues that the opposition is superficial. The real problem lies within the notion of self-determination itself. Self-determination contains within it two opposite faces: one breeds separatist movements; the other supports unification and territorial sovereignty. Historically, self-determination grounded both union and separation in the rise of the nation-state; secessionist self-determination only came into play when epochal wars had weakened the sovereignty of the parent state. Conceptually, the ambiguity of self-determination makes defining the ‘self’ a daunting task for the law, especially when both the parent state and the seceding group make national claims.
Abstract: This article comprehensively examines the 1999 recommendation of the Tunisian government to create an International Constitutional Court that is designed to enhance the principles of democracy and human rights and to strengthen the constitutional doctrine which states that the people are the source of authority in a given country. This proposal, which was strongly advocated by former Tunisian President Mohamed Moncef Marzouki during his term in office, aims to underscore the importance of establishing an international judicial entity and analysing its bylaws with respect to its terms and conditions, formation, jurisdiction and selection of judges. The article traces the trajectory of the movement, from the proposal stage to the latest developments in formally establishing the international judicial entity. Finally, the article identifies various possible difficulties and challenges that are likely to stand in the way of implementing the proposal.
Constitutionality of the Agreement between the Foreign Affairs Ministers of the Republic of Korea and Japan on the Issue of ‘Comfort Women’ on 28 December 2015
Abstract: On 28 December 2015, Korean Foreign Minister Yun Byung-se and Japanese Foreign Minister Fumio Kishida held a meeting at the Korean Foreign Ministry in Seoul and announced that they had reached an agreement to resolve the so-called ’comfort women’ issue, who were forcibly drafted into sexual slavery by the Japanese imperial army in World War II. But the agreement’s binding effect and constitutionality are highly controversial. This agreement violates not only the principle of the statutory or parliamentary reservation by the restriction of the basic rights and the power of the National Assembly to consent to the treaty pursuant to Article 60 (1) of the Constitution, but also infringes the constitutional rights of the ‘comfort women’ victims, such as the right to human dignity, the right to know, and the right to property. This article provides a review of current and potential constitutional litigation regarding the agreement, including the claim that has already been brought by the comfort women survivors, and potential suits concerning the competence dispute and impeachment by the National Assembly.
Abstract: Equal suffrage is a basic principle of democratic elections which is included in most constitutions and international human rights documents. It applies to the design of the boundaries of the political community, electoral system and electoral procedure. However, there are special cases where the effectiveness of this principle is questionable. This paper deals with two different aspects of the Hungarian regulation concerning the voting rights of Hungarian citizens living abroad. The paper gives an overview of the regulation and presents the recent constitutional disputes and relevant case law of Hungarian and European fundamental rights protection mechanisms. Finally, it opens the debate by posing some key questions on the future of the Hungarian situation and more generally, on the level of protection of voting rights before the national and international institutions.
Special Topic: Establishment and Unconstitutionality of Political Parties
Various legal systems contain provisions on the unconstitutionality of political parties. However, the requirements and measures for their prohibition vary broadly. Since the Austrian legal framework contains the notion of unconstitutional political parties, the question arises which parties are considered to be unconstitutional and what procedure is applicable to such parties.
Special Topic: Procedural Rules and Practices Grounding the Decisions of the Constitutional Court of Romania
The significant powers given by the Romanian Constitution to the Constitutional Court represent various and effective instruments to achieve its main role, meaning to guarantee the supremacy of the Constitution. Since the Constitutional Court’s decisions are generally binding, and given their role to ‘remodel’ the entire legal system, for the purposes of its constitutionalisation, it is vital to make them known and understood, also with reference to the underlying decision-making process. In this regard, the configuration of the procedure to settle the cases referred to the Constitutional Court represents in itself a framework ensuring the transparency in the decision-making process, in particular through the involvement in this process of public authorities representing the three State powers which are asked, according to the law, to express their written opinions in almost all cases judged by the Court. There are also other professionals, bodies, and authorities that may be requested to submit information and opinions and, furthermore, we have to underline the legal duty of publication of the decisions of the Constitutional Court in the Official Journal of Romania. This framework, as well as other instruments such as the system which provides for an online, direct access of the media, or the viewing/listening of Constitutional Court’s public sessions, press releases, other tools and practices aiming at informing on the activity of the Constitutional Court provide openness and transparency to its activity.
Georgian Constitutional Court: The System of Legal Capacity of Natural Persons and its Impact upon the Georgian Legislation
On 8 October 2014, the Georgian Constitutional Court adopted a precedential judgment in the case of ‘Irakli Qemoklidze and Davit Kharadze, Citizens of Georgia v the Parliament of Georgia’. Provisions of the Georgian law challenged by the plaintiffs concerned issues such as finding natural persons incapable, the impossibility by persons declared incapable to express their intention under civil law and the notion of guardianship. In particular, the plaintiffs were disputing the constitutionality of the provision governing legal incapacity at the material time in several ways. According to their assertion, the existing model contradicted the requirements of the rights to free development and equality. The Constitutional Court partially upheld the lawsuit allowing the State a period of six months to implement a relevant reform. The case served as a starting point for reforming the notion of legal incapacity.