scholarly journals The Consequences of Sentenza 238/2014: What to Do Now?

2021 ◽  
pp. 215-218
Author(s):  
Doris König
Keyword(s):  
Constitutional Law ◽  
Legal Order ◽  
The Other ◽  
Constitutional Court ◽  
European Law ◽  
Constitutional Courts ◽  
International Court Of Justice ◽  
International Court ◽  
Close Relationship ◽  
The One

AbstractThis chapter illustrates the two ways in which national constitutional courts can deal with a conflict between international or European law on the one hand and national constitutional law on the other hand. The dualist approach of not complying with international or European law comes at the risk of undermining respect for an external legal order and in the author’s view should thus be used in exceptional cases only. The chapter argues that the test of equivalent protection is more constructive but requires a close relationship between the legal orders involved. Therefore, this option is difficult to apply in cases which are about conflicts with international and not with European law. In Sentenza 238/2014, the Italian Constitutional Court chose a dualist approach. Although the legal path has not been exhausted yet (Germany could bring another case before the International Court of Justice), the author advocates negotiations with the aim of achieving a political solution which takes into account the interests of all parties involved.

Judgment No. 238 – 2014 (IT. Const. Ct.)

2015 ◽  
Vol 54 (3) ◽  
pp. 471-506
Author(s):  
Alessandro Chechi
Keyword(s):  
The State ◽  
Legal Order ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
International Court Of Justice ◽  
State Immunity ◽  
Court Of Justice ◽  
International Court ◽  
Constitutional Legitimacy

On October 22, 2014, the Italian Constitutional Court rendered a decision on the constitutional legitimacy of certain domestic norms that required Italy’s compliance with the rule on state immunity sanctioned by the International Court of Justice (ICJ) with the Judgment Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening). The Constitutional Court declared that the international customary obligations on state immunity from jurisdiction can be applied automatically within the Italian legal order only as long as they are in conformity with the fundamental rights contained in the Constitution.

The “Polemical” Spirit of European Constitutional Law: On the Importance of Conflicts in EU Law

2015 ◽  
Vol 16 (6) ◽  
pp. 1343-1374 ◽  
Author(s):  
Giuseppe Martinico
Keyword(s):  
Constitutional Law ◽  
The Other ◽  
Preliminary Ruling ◽  
Eu Law ◽  
Constitutional Courts ◽  
Cautious Approach ◽  
Court Of Justice ◽  
The One ◽  
The Eu

Recently, scholars have argued of the necessity of going beyond “judicial dialogues” and “conflict-and-power” approaches to the analysis of the role of national Constitutional Courts in the Union. On the one hand, there are risks connected to a “too welcoming an approach by national constitutional courts to EU law”; on the other hand, it is possible to criticize both the Court of Justice of the EU (CJEU) and some national Constitutional Courts for other, less cooperative, decisions. I share this cautious approach for many reasons, and primarily because the preliminary ruling mechanism does not exhaust all the possible means of communication between constitutional courts and the CJEU. For instance, what Komárek calls “parallel references” can serve, in some circumstances, as a technique of alternative (or hidden) dialogue, that has favored a sort of “remote dialogue” over the years. My sole point of disagreement with this scholarly position is over the role of conflicts in this scenario. Whilst Komárek seems to confine conflicts to phenomena of mere resistance or to “‘cold’ strategic considerations,” in this work I am going to adopt a much broader idea of conflict, which goes beyond mere “conflicts and power games.”

scholarly journals Between a Rock and a Hard Place: Italian Concerns Between Constitutional Rights and International Law

2021 ◽  
pp. 337-342
Author(s):  
Andreas L. Paulus
Keyword(s):  
International Law ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
International Court Of Justice ◽  
State Immunity ◽  
International Court ◽  
The 1960S ◽  
The One ◽  
Substantive Law ◽  
Domestic Law

AbstractSentenza 238/2014 has led to a sharp dissonance between the international law of state immunity as interpreted by the International Court of Justice (ICJ) and Italian constitutional law as understood and applied by the Corte Costituzionale. While the interpretation and application by the Italian Constitutional Court (ItCC) of the access-to-courts provision in the Italian Constitution may not have been inevitable, this does not remove the need for finding a solution to the stalemate between international and domestic law. On the one hand, the easy solution, namely that the rejection of German state immunity from jurisdiction does not necessarily remove immunity from execution into German property, appears unlikely to be accepted by the ItCC because it would give stones rather than bread to the complainants and render court access a futile exercise. On the other hand, bringing Sentenza to its logical conclusion would result in Italy having to return to Germany what Italian courts took from her by requiring compensation—either by way of the general international law of restitutio in integrum, which the Corte Costituzionale has neither contemplated nor contradicted, or by way of the 1961 Treaty between Germany and Italy in which Italy promises to indemnify Germany against any further claims. Thus, a compromise would have to distinguish between full access to the Italian courts notwithstanding international immunity—as required by the ItCC—and substantive law, which could accept a more symbolical recognition of the suffering of the victims. That recognition could stem from a direct source other than the two states involved, such as a common fund, and address only the small group of immediate victims who were unjustly, if arguably legally, excluded from the previous compensation scheme of the 1960s. It is by no means certain, however, whether such an outcome would be acceptable to all sides—including the Corte itself. Thus, legal certainty would have to be established as quickly as possible so that the victims can still receive at least symbolic compensation.

La cessation des fonctions des membres de la Cour constitutionnelle en droit congolais : modalités et effets juridiques

2021 ◽  
Vol 54 (1) ◽  
pp. 78-97
Author(s):  
Dieu-Merci Ngusu Masuta
Keyword(s):  
Theoretical Analysis ◽  
Detailed Analysis ◽  
Constitutional Law ◽  
The Other ◽  
Constitutional Court ◽  
Other Hand ◽  
Legal Nature ◽  
The Law ◽  
The Republic ◽  
The One

This article provides a study of the modalities and legal effects of the termination of the functions of members of the Congolese Constitutional Court. It offers a detailed analysis based mainly on the relevant provisions of Ordinance No. 16/070 of August 22, 2016 on the special status of members of the Constitutional Court. This Ordinance was adopted in application of the Congolese Constitution of February 18, 2006 in conjunction with organic-law No. 13/026 of October 15, 2013 on the organization and functioning of the Constitutional Court. Distinguishing on the one hand the normal cause of cessation of functions - the expiry of the mandate - and on the other hand the so-called exceptional causes - the resignation, dismissal and death of a member -, the study shows that the enumeration thus retained from the ordinance is incomplete with regard to the above-mentioned organic law. Thus, the list must be supplemented with the "nullity of the appointment" of a member in accordance with articles 2 and 3 of that organic law. The law is silent, however, on the issue of the voluntary retirement of members, although the implementation of this right inevitably has an impact on the end of their functions. The study therefore continues by an examination of both the general and the specific legal effects of these different modalities of ending the functions of a member of the Constitutional Court. Finally, in order to support and complete this essentially theoretical analysis, the article also looks at the question that remains most topical in Congolese constitutional law, namely the legal nature of the 'power' of the President of the Republic to appoint members of the Constitutional Court to other Courts or functions during their term of office. It concludes that such a power is not justified in the current framework of Congolese constitutional law. Indeed, it is inconceivable that such appointments should be imposed on the Constitutional Court members, their acceptance being the only exception to the principle of irremovability that governs them. Such a case should be considered one of voluntary resignation and a subsitute member should therefore only be appointed after this situation has been ascertained and established by the Constitutional Court.

scholarly journals Perspectives on restricting the exercise of constitutional rights and freedoms in order to ensure national security

2019 ◽  
pp. 35-47
Author(s):  
IONUȚ DUMITRU APACHIȚEI
Keyword(s):  
National Security ◽  
Constitutional Law ◽  
The Other ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Close Correspondence ◽  
Other Hand ◽  
Fundamental Law ◽  
The One

The current study aims at presenting the conditions under which the restriction of the exercise of constitutional rights and freedoms can operate in order to satisfy the measures regarding the protection of national security. One the one hand, the valences of constitutional law of this topic lie on the fact that the adopted measures must be in close correspondence with the exigencies of the Constitution, and on the other hand, the checking of the conditions of adopting specific measures to restrict constitutional rights and freedoms is the prerogative of the Constitutional Court asked to verify the compliance with the provisions of the Fundamental Law.

New States, Regionalism and International Law

1967 ◽  
Vol 5 ◽  
pp. 118-141 ◽  
Author(s):  
L. C. Green
Keyword(s):  
General Practice ◽  
International Law ◽  
International Justice ◽  
The Other ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The World ◽  
New States ◽  
The One

Traditionally, international law has come to be regarded as consensual in nature, depending for its authority upon the recognition and acceptance of those entities which it seeks to bind. This view was accepted by the Permanent Court of International Justice in the S.S. Lotus: “The rules of law binding upon States emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims.” Article 38 of the Statute of the World Court, when listing the “sources” of international law, also acknowledges its consensual basis. In its substantive portion the article refers to conventions “establishing rules expressly recognized by the contesting States.” It then refers to custom “as evidence of a general practice accepted as law,” which has been explained by the International Court of Justice in the Asylum Case: “The Party which relies on a custom … must prove that this custom is established in such a manner that it has become binding on the other Party. [It] must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the [one] State … and a duty incumbent on the [other] State.”

Transjudicial dialogue and constitutionalism: a risk or an opportunity for democracy?

2009 ◽  
pp. 113-138
Author(s):  
Maria Rosaria Ferrarese
Keyword(s):  
Constitutional Law ◽  
The United States ◽  
The Other ◽  
Institutional Characteristics ◽  
Constitutional Courts ◽  
National Sovereignty ◽  
Constitutional Protection ◽  
Pass Through ◽  
The One ◽  
Paradoxical Results

- After briefly explaining how constitutional dialogue works and has mostly been elaborated, together with how it is encouraged and made possible by some of the institutional characteristics of the judiciary, this paper addresses a specific issue: the link between the position adopted by the courts with regard to this practice and the different kinds of legitimisation which they refer to, whether democracy or constitutionalism. Legitimacy may be based more on democracy, with the idea that national sovereignty is its almost exclusive source, or on the idea that, in matters of rights, universal standards may or must pass through different democracies. As usual parlance is of course about "constitutional democracies", it reconciles the potential opposition between the two aspects. However, globalisation, with the challenges it sets towards national sovereignty, is strengthening this opposition, pushing it toward the one or the other aspect. Courts and especially constitutional courts are thus becoming the places where decisions are made about the ambivalence between the risk of de-nationalising national constitutional law and the opportunity to take part in creating new cosmopolitan forms of law and universalising a constitutional protection of fundamental and human rights. Two possible answers to this ambivalence are highlighted by focusing particularly on the example of two national constitutional courts, that of South Africa and that of the United States, starting from their different attitudes towards involvement in the constitutional dia- logue. Their different, even opposite, ways of approaching transnational dialogue lead to paradoxical results.

Constitutional Court: The Dilemma of Law and Politics

2018 ◽  
Vol 64 (4) ◽  
pp. 480-482
Author(s):  
Andreas Voßkuhle
Keyword(s):  
Decision Making ◽  
The Other ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Law And Politics ◽  
Other Hand ◽  
Election Process ◽  
The One

This article raises questions in the context of the tension between the activities of parliament and government on the one hand and constitutional courts on the other hand. As to this tension, it concludes that the manner and method of decision-making on the part of government or parliament differs fundamentally from the manner in which constitutional courts operate. The article further elaborates, in particular, on the acceptance of decisions rendered by the constitutional court, as well as on questions in the context of the election process of constitutional court justices.

Albrecht Durer and the 16TH Century Melancholy

2020 ◽  
Vol 2 ◽  
pp. 37-49
Author(s):  
Marcel Henrique Rodrigues
Keyword(s):  
Religious Culture ◽  
The Other ◽  
16Th Century ◽  
Other Hand ◽  
Close Relationship ◽  
The One ◽  
Deep Sense

Little has been discussed in academia about the close relationship between the Renaissance of the 16th century and melancholy humor, and esoteric elements arising mainly from Florentine Neoplatonism. The link between melancholy and esotericism becomes very clear when we analyze the gravure “Melencolia I” by Albrecht Dürer (1471-1528), composed of a significant number of symbols that refer to an esoteric religious culture that then emerged. Renaissance melancholy gained several nuances. On the one hand, it was considered a sin, a despicable mood characteristic of witches; on the other hand, a deep sense of inspiration typical of men of “genius”. This ambivalence also occurred in the firmament, as the melancholic people were guided by the dark planet Saturn, according to astrological belief. We also have the cultural scenario of the 16th century, especially in Dürer's Germany, which contributed to strengthening the melancholy issues.

Dreams of Truck Drivers: A Test of the Continuity Hypothesis of Dreaming

2005 ◽  
Vol 25 (2) ◽  
pp. 179-186 ◽  
Author(s):  
Michael Schredl ◽  
Arthur Funkhouser ◽  
Nicole Arn
Keyword(s):  
Empirical Studies ◽  
Truck Drivers ◽  
The Other ◽  
Continuity Hypothesis ◽  
Future Studies ◽  
Daytime Activity ◽  
Close Relationship ◽  
The One ◽  
Dream Emotions ◽  
The Relationship

Empirical studies largely support the continuity hypothesis of dreaming. The present study investigated the frequency and emotional tone of dreams of truck drivers. On the one hand, the findings of the present study partly support the continuity regarding the time spent with driving/being in the truck and driving dreams and, on the other hand, a close relationship was found between daytime mood (feelings of stress, job satisfaction) and dream emotions, i.e., different dream characteristics were affected by different aspects of daytime activity. The results, thus, indicate that it is necessary to define very clearly how this continuity is to be conceptualized. The approach of formulating a mathematical model (cf. [1]) should be adopted in future studies in order to specify the factors and their magnitude in the relationship between waking and dreaming.

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