Search result: 3 articles

x
Article

Constitutional Narcissism on the Couch of Psychoanalysis

Constitutional Unamendability in Portugal and Spain

Journal European Journal of Law Reform, Issue 3 2019
Keywords unamendable/ eternity clauses, de jure and de facto constitutional change, constitutional narcissism, foundational design, helicopter founding fathers, constitutional alma mater
Authors Catarina Santos Botelho
AbstractAuthor's information

    Comparing the Portuguese Constitution, which has the longest unamendable clause in the world, with the silence of the Spanish Constitution regarding the language of eternity is indeed a fascinating exercise. Each state’s quantum of constitutional change seems to be quite different. One can wonder how two neighbouring states that share a heavy history of right-wing dictatorships and transitioned to democracy forty years ago opted for such dissimilar constitutional designs. However, appearances are often misleading, and an effort should be done to unveil this curious mismatch.
    Both legal orders suffer from what I call constitutional narcissism, which manifests itself through the urge to perpetuate the foundational constitutional moment. Unamendable clauses (Portugal) and quasi-unamendable clauses (Spain) recast one of constitutional theory’s inner paradoxes: Can the constituent power of the people be petrified in one historical constituent decision and constrain future democratic transitions? And what if a volatile contemporary majority seeks to undermine the democratic process and run against the constitutional DNA achievements of the last centuries?
    Even if the original version of the Portuguese Constitution prohibited several provisions from ever being amended, some of these provisions were indeed modified or removed in the 1989 constitutional amendment process. This occurred without major disagreement from the political organs, scholars, or the judiciary. Therefore, the vexata quaestio remains unanswered: Given their obsolescence or hindrance towards good governance, should entrenchment clauses be eliminated de jure (through a channelled constitutional amendment process, such as the double amendment procedure) or de facto (through a revolutionary process materialized outside of the constitutional framework)?


Catarina Santos Botelho
Assistant Professor and Department Chair of Constitutional Law at the Porto Faculty of Law, Universidade Católica Portuguesa. Email: cbotelho@porto.ucp.pt. I thank Paul Kahn, Nuno Garoupa, Richard Albert, Gonçalo Almeida Ribeiro, Yaniv Roznai, Ana Teresa Ribeiro, and Luís Heleno Terrinha for their very helpful comments.
Article

Exploring the intertwining between human rights and restorative justice in private cross-border disputes

Journal The International Journal of Restorative Justice, Issue 1 2019
Keywords International human rights, private actors, horizontal effect, restorative justice
Authors Marta Sá Rebelo
AbstractAuthor's information

    International human rights instruments operate on the assumption that states are the focal human rights duty bearers. However, private actors can harm human rights as well. Moreover, since mechanisms at a supranational level are lacking, these instruments rely primarily on states for their enforcement. Yet states’ internal rules and courts are meant to address infringements that are confined within their borders, and are therefore often structurally unable to deal with violations having transnational impact. Restorative justice has proven to respond in depth to different kinds of wrongdoing and, although addressing the peculiarities of each case, restorative procedures can systemically prevent deviant behaviour as well. Additionally, as restorative justice relies on voluntary participation it need not operate in a specific territory. Having this broader picture in mind, the article explores whether restorative justice might be adequate for dealing with human rights infringements perpetrated by private actors that have cross-border impact.


Marta Sá Rebelo
Marta Sá Rebelo is a PhD researcher at Católica Global School of Law and a teaching assistant at Católica Lisbon School of Law, Universidade Católica Portuguesa, Lisbon, Portugal.

    Whether it is for environmental purposes, by monitoring the Earth’s forests, oceans or the Arctic, or military purposes, such as target selection or troop movements, our modern society has become increasingly dependent on remote sensing activities by satellite; one of the most extensively practised space activities. In addition to these scientific and military uses, a significant commercial remote sensing market has developed predicted to be worth between US$8 and US$15 billion by 2026. Moreover, the technological capabilities of remote sensing satellites are ever improving; for example, with the Airbus Spot 6 and Spot 7 satellites that boast a 70 cm resolution or BlackSky’s Global satellite that boasts a 1 m resolution.
    However, these developments occur against a backdrop of meagre legal regulation of the activity, especially considering how commonplace remote sensing is and the fastpaced technological developments. On an international level, remote sensing activities are primarily addressed through the Remote Sensing Principles under UNGA Resolution 41/65. Yet, the Principles hardly address private entities, the scope is very limited, and the status of the Principles is contentious. In contrast, national space legislation is binding and more apt at keeping up with the developments because it is less complicated to adopt and amend such legislation than to reach consensus within the international community. Nevertheless, few states have actually addressed remote sensing in their national space legislation.
    This paper examines whether the best approach towards creating a stronger framework for regulating remote sensing activities, even on an international level, would be a bottom-up approach through national space legislation. First, it will examine the regulation of remote sensing under international law. Thereafter, this paper will discuss the regulation of remote sensing activities in a selected number of national space legislations, namely France, Germany, and the United States. Third, it will discuss, briefly, the bottom-up approach to international law-making. Finally, in light of the aforementioned considerations this paper will argue that more states should regulate remote sensing activities in their national space legislation, and that this could contribute to create more certainty about remote sensing activities on an international level but will also signal the challenges that such a bottom-up approach will bring with it.


Vincent Seffinga
Department of Law, European University Institute, Villa Salviati, Via Bolognese 156, 50139 Florence, Italy, Vincent.Seffinga@EUI.eu.
Showing all 3 results
You can search full text for articles by entering your search term in the search field. If you click the search button the search results will be shown on a fresh page where the search results can be narrowed down by category or year.