Balancing Free Trade Principles with Other Constitutional Provisions in the Context of Preferential Trade Agreements

2015 ◽  
Vol 4 (1) ◽  
pp. 79-107
Author(s):  
Liliana Lizarazo-Rodríguez ◽  
Philippe De Lombaerde
Keyword(s):  
South African ◽  
Free Trade ◽  
National Level ◽  
Case Law ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Regulatory Architecture ◽  
The Government ◽  
The One ◽  
Economic Modernization

Colombia’s Constitution of 1991 is an ambitious text which tries to strike a balance between laying a strong foundation for economic modernization and liberalization, on the one hand, and the creation of a Social State of Law and the protection of an impressive list of constitutional rights, on the other. Because of the doctrine that has been developed by the Constitutional Court since then, it has been considered as one of the most activist courts worldwide, next to courts such as the South African court. One of the factors that has thereby complicated its task is the fact that, since the 1990s, the government has actively multiplied its international economic commitments. In this article, case law of the Colombian Constitutional Court is analyzed, with a focus on balancing: (a) between the binding character of (regional and bilateral) free trade commitments and the constitutional competences of the sub-national level, and (b) between international free trade commitments and the protection of constitutional social rights. Both cases shed light on the balancing task of the court in a complex international context, in the presence of a multi-level regulatory architecture.

Developing the Jurisprudence of Constitutional Remedies for Breach of Fundamental Rights in South Africa: An Analysis of Hoffman and Related Cases

2018 ◽  
Vol 32 (1&2) ◽  
Author(s):  
Chuks Okpaluba
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Case Law ◽  
Public Law ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
The Novel ◽  
Labour Law

In order to accomplish its objectives of extensively regulating rights and obligations, the 1996 Constitution of South Africa similarly provides for the enforcement of those rights by the courts. In turn, it has, in the said enforcement provisions, invested in the courts enormous discretionary powers to enable them to effectively deal with breaches of the entrenched fundamental rights as well as all constitutional rights violations. That the Constitutional Court has purposefully interpreted and made optimum use of the expressions: ‘appropriate relief’ and ‘just and equitable’ order in developing the constitutional remedies jurisprudence is crystal clear from a wealth of available case law. It is also not in doubt that the contributions of Justice Ngcobo (later Chief Justice) in this regard are intellectually gratifying. This presentation singles out for discussion and analysis the judgment of Ngcobo J in Hoffman v South African Airways 2001 (1) SA 1 (CC) which not only typifies judicial activism at its acme; it has also introduced into the South African public and labour laws, the novel remedy of ‘instatement.’ Apparently drawn from the analogy of the labour law remedy of reinstatement, ‘instatement’ is akin to the remedy of mandamus in public law, and specific performance in the law of contract. This article moves from the premise that this innovation is one of its kind in contemporary common law jurisprudence and one which courts in the common law jurisdictions world would no doubt emulate one fine day.

scholarly journals Alexy and the “German” Model of Proportionality: Why the Theory of Constitutional Rights Does Not Provide a Representative Reconstruction of the Proportionality Test

2020 ◽  
Vol 21 (2) ◽  
pp. 163-173
Author(s):  
Niels Petersen
Keyword(s):  
Case Law ◽  
Two Dimensions ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Specific Interpretation ◽  
German Model ◽  
Federal Constitutional ◽  
The One ◽  
Proportionality Test ◽  
German Federal Constitutional Court

AbstractRobert Alexy is one of the most prominent proponents of proportionality in international legal scholarship. His theory has two dimensions. On the one hand, it is a normative defense of balancing. On the other hand, it seeks to provide a reconstruction of the case law of the German Federal Constitutional Court. This Article focuses on the reconstructive part of his theory. It argues that his reconstruction of the jurisprudence of the German Constitutional Court is only partly accurate. In particular, it does not provide a suitable reconstruction of the decisions in which the Court finds a statute to be inconsistent with the constitution. For this reason, the normative critique of Alexy’s theory does not necessarily translate into a critique of the jurisprudence of the German Constitutional Court’s application of proportionality or even the proportionality doctrine itself. Instead, it targets only one specific interpretation of proportionality.

The Italian Constitutional Court Case Law on Competition Law and Free Trade within the Framework of the European Union Legal System

ICL Journal ◽  
2016 ◽  
Vol 10 (3) ◽  
Author(s):  
Elisabetta M. Lanza
Keyword(s):  
European Union ◽  
Free Trade ◽  
Legal System ◽  
Case Law ◽  
Court Case ◽  
Constitutional Court ◽  
The European Union ◽  
European Union Law ◽  
The One

AbstractThis 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.

scholarly journals THE ELEMENTS OF PROPORTIONALITY AS A PRINCIPLE OF HUMAN RIGHTS LIMITATIONS

2017 ◽  
pp. 235
Author(s):  
Luka Anđelković
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Major Elements ◽  
Constitutional Court ◽  
Individual Rights ◽  
Important Requirement ◽  
European Court ◽  
Restrictive Measure ◽  
The Government ◽  
The One

The article discusses the elements of proportionality as the most important requirement that must be satisfied in the limitation of human rights. There are four major elements of this principle: legitimacy, adequacy, necessity, and proportionality stricto sensu. Legitimacy means that limitation must pursue a legitimate aim. Adequacy means that the chosen measure must be suitable for achieving that aim. Furthermore, the government may only use the least restrictive measure for achieving the aim, the one that causes least damage to protected rights and interests. In order to be deemed proportionate, the limitation must satisfy the test of proportionality stricto sensu, which means that achieving a particular aim must be important enough to justify the damage which will be caused to individual rights. This article particularly focuses on the application and the significance of these elements in the case-law of the European Court of Human Rights and the Constitutional Court of Serbia.

Uzasadnienia orzeczeń Trybunału Konstytucyjnego w kwestii dopuszczalności wniosków i skarg konstytucyjnych a konstytucyjne standardy sprawiedliwości proceduralnej

2014 ◽  
pp. 117-136
Author(s):  
Łukasz M. Bębenista
Keyword(s):  
Procedural Fairness ◽  
Case Law ◽  
The Other ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Reasonable Time ◽  
Other Hand ◽  
Comprehensive Examination ◽  
The One

The author focuses on how the Constitutional Court formulates reasons for its decisions on the admissibility of the constitutional complaints and applications. The Court’s practice is confronted with constitutional standards of procedural fairness. The author draws attention to the need to ensure the predictable nature of the decisions of the Constitutional Court by the consistency of its case-law, in particular with regard to the concept of the matters referred to in Art. 191 paragraph 2 of the Constitution. The author analyzes the requirement to indicate in what way the freedom or the applicant’s constitutional rights have been violated, having regard to the obligation to disclose the motives of the Court’s ruling in a clear manner. In the author’s opinion, the obligation to justify the decision in such a way that the applicant verify the judge reasoning also applies to the decision on account of appeal against a decision to refuse to grant constitutional complaint further. The author looks at the ground for refusal of the application or the constitutional complaint further action from the perspective of, on the one hand, the obligation of a comprehensive examination of the facts, on the other hand, the obligation to smooth hearing within a reasonable time.

The Resilient Constitution

2021 ◽  
pp. 277-309
Author(s):  
David Dyzenhaus ◽  
Alma Diamond
Keyword(s):  
South Africa ◽  
South African ◽  
Transitional Justice ◽  
Comparative Approach ◽  
Constitutional Court ◽  
Extreme Pressure ◽  
The Face ◽  
Justice Process ◽  
The One

This chapter evaluates the so called 'transitional constitution' of South Africa and the 'permanent constitution' of Colombia. Through a comparative approach, it contends that constitutions are better understood in terms of their resilience rather than either being transitional or permanent, and that a 'resilient constitution' is the one capable of springing back even after being subjected to extreme pressure, as long as leaders maintain their commitment to governing within the limits of the law. In this sense, the differences between the Colombian transitional justice and the South African case do not stem primarily from the 'permanence' of its Constitution, but rather from the difficulties and tensions inherent to any transitional justice process, because it derives from some of the very rights it is designed to promote. The chapter then details how the jurisprudence of the Colombian Constitutional Court on transitional matters can be understood as having moved from an understanding of the Constitution as permanent, to one of resilience that does not represent a new power grabbed by the Court. Rather than that, it signals an understanding of the role of the Court in maintaining a constitutional order even in the face of existential threats to it.

scholarly journals Comments on the Representation of Romania in the European Council and on its Consequences for Democratic Accountability

2014 ◽  
Vol 14 (1) ◽  
pp. 7-36
Author(s):  
Constantin Mihai Banu
Keyword(s):  
Prime Minister ◽  
Case Law ◽  
European Council ◽  
Constitutional Court ◽  
Democratic Accountability ◽  
Parliamentary Debates ◽  
The Government ◽  
Significant Attention

Abstract The article approaches issues concerning the representation of Romania in the European Council, question that has received significant attention in recent years. Several decisions handed down by the Constitutional Court of Romania were meant to clear up to a certain degree the division of roles between the President of Romania and the Prime Minister in representation in the European Council meetings, while other matters are still waiting for a clearer answer. These developments occurred with parliamentary debates on what is today the Act no 373 of 18 December 2013 on cooperation between the Parliament and the Government in the field of European affairs. The article aims to asses this case-law of the Constitutional Court in the broader framework of EU affairs.

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.

scholarly journals Limitation of Socio-Economic Rights in the 2010 Kenyan Constitution: A Proposal for the Adoption of a Proportionality Approach in the Judicial Adjudication of Socio-Economic Rights Disputes

2017 ◽  
Vol 16 (5) ◽  
pp. 171
Author(s):  
Nicholas Wasonga Orago
Keyword(s):  
South African ◽  
Positive Impact ◽  
The State ◽  
Bill Of Rights ◽  
Economic Rights ◽  
Poverty And Inequality ◽  
Standards Of Living ◽  
Legislative Policy ◽  
The Government ◽  
The One

On 27 August 2010 Kenya adopted a transformative Constitution with the objective of fighting poverty and inequality as well as improving the standards of living of all people in Kenya. One of the mechanisms in the 2010 Constitution aimed at achieving this egalitarian transformation is the entrenchment of justiciable socio-economic rights (SERs), an integral part of the Bill of Rights. The entrenched SERs require the State to put in place a legislative, policy and programmatic framework to enhance the realisation of its constitutional obligations to respect, protect and fulfill these rights for all Kenyans. These SER obligations, just like any other fundamental human rights obligations, are, however, not absolute and are subject to legitimate limitation by the State. Two approaches have been used in international and comparative national law jurisprudence to limit SERs: the proportionality approach, using a general limitation clause that has found application in international and regional jurisprudence on the one hand; and the reasonableness approach, using internal limitations contained in the standard of progressive realisation, an approach that has found application in the SER jurisprudence of the South African Courts, on the other hand. This article proposes that if the entrenched SERs are to achieve their transformative objectives, Kenyan courts must adopt a proportionality approach in the judicial adjudication of SER disputes. This proposal is based on the reasoning that for the entrenched SERs to have a substantive positive impact on the lives of the Kenyan people, any measure by the government aimed at their limitation must be subjected to strict scrutiny by the courts, a form of scrutiny that can be achieved only by using the proportionality standard entrenched in the article 24 general limitation clause.

scholarly journals Limits of permissible intervention in biomedical studies of somatic human rights

2020 ◽  
pp. 92-96
Author(s):  
Myroslava Hromovchuk
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Biomedical Research ◽  
National Level ◽  
Central Place ◽  
Legal Regulation ◽  
Constitutional Rights ◽  
Moral Ideal ◽  
The One ◽  
Definition Of

The article examines the features of the essence and content of the constitutional principles of human rights as a basis for legalregulation of biomedical research of somatic human rights. The author reveals the essence and content of international and nationallegal principles of human biomedical research. It was found that there are currently no standards of legal regulation of human rightsprotection during biomedical research at the national level and at the level of international acts in this field. It is pointed out that theissue of human and civil rights and freedoms in the conditions of formation and development of civil society in democratic states occupiesa central place. It is established that the effective provision of constitutional rights and freedoms of man and citizen is associatedwith the need for restrictions in their implementation. It is determined that it is of fundamental importance that the attitude to law, tohuman rights and freedoms for the Ukrainian legal consciousness is impossible only through the awareness of a certain moral ideal asa goal in one’s own life. Therefore, any legal problem for the Ukrainian mentality is inextricably linked with the values of goodnessand justice, truth and humanity.It is noted that the approaches to the definition of “freedom” have both common and different features or certain clarificationsregarding certain manifestations. Without resorting to controversy about the truth or falsity of each of them, by generalizing their content,we can conclude that freedom, on the one hand, is an action according to their own desires, on the other - an action against them.The limits of permissible intervention in conducting biomedical research with human participation have been studied, as well asthe ethical examination of biomedical research as a way to protect human rights has been determined.

Sign in / Sign up

Export Citation Format

Share Document