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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

A View on the Future of Judicial Review of Constitutional Amendments in Turkey

An Invitation to Judicial Dialogue

Journal European Journal of Law Reform, Issue 3 2019
Keywords basic structure doctrine, Constitutional Court of Turkey, constitutional identity, judicial dialogue, immunity amendment, unconstitutional constitutional amendments
Authors Ali Acar
AbstractAuthor's information

    In this article, I discuss and analyse the Turkish case concerning judicial review of constitutional amendments in light of a recent decision by the Constitutional Court of Turkey (CCT). In the said decision, the CCT rejected carrying out judicial review over a controversial constitutional amendment, which lifted MPs’ parliamentary immunity. This decision urges to consider its implications for the possible future cases. I refer to comparative constitutional law with the hope to shed more light on the Turkish example and grasp it comprehensively. In this respect, I illustrate the most crucial arguments developed by the Supreme Court of India (SCI), the Bundesverfassungsgericht (BVG), and the Conseil Constitutionnel (FCC) in their case law. Based on the comparative account, I draw some lessons for the CCT and invite it to get into a judicial dialogue with other supreme/constitutional courts with regard to the issue.


Ali Acar
Cankaya University Faculty of Law and visiting researcher at Osgoode Hall Law School. I thank Richard Albert, Vicente F. Benítez-Rojas, and Mehmet Turhan for their comments and critiques, which were insightful to develop the ideas in this article.
Article

A Proposal for the International Law Commission to Study Universal Criminal Jurisdiction

Journal African Journal of International Criminal Justice, Issue 1-2 2018
Keywords Universal Criminal Jurisdiction, International Criminal Law
Authors Mr. Charles Chernor Jalloh
AbstractAuthor's information

    The principle of universal jurisdiction is a unique ground of jurisdiction in international law that may permit a State to exercise national jurisdiction over certain crimes in the interest of the international community. This means that a State may exercise jurisdiction regarding a crime committed by a foreign national against another foreign national outside its territory. Such jurisdiction differs markedly from the traditional bases of jurisdiction under international law, which typically require some type of territorial, nationality or other connection between the State exercising the jurisdiction and the conduct at issue. Due to the definitional and other ambiguities surrounding the universality principle, which has in its past application strained and today continues to strain relations among States at the bilateral, regional and international levels, this paper successfully made the case for the inclusion of “Universal Criminal Jurisdiction” as a topic in the long-term programme of work of the International Law Commission during its Seventieth Session (2018). It was submitted that taking up a study of this timely topic, which has been debated by the Sixth Committee of the UN General Assembly since 2010, could enhance clarity for States and thereby contribute to the rule of law in international affairs. It will also server to continue the ILC’s seminal contributions to the codification and progressive development of international criminal law.


Mr. Charles Chernor Jalloh
Mr. Charles Chernor Jalloh is Professor of Law, Florida International University and Member and Chair of Drafting Committee, 70th Session, International Law Commission.

Dr. Beatriz Barreiro Carril
Lecturer of International Law (Rey Juan Carlos University).
Article

Access_open The Questionable Legitimacy of the OECD/G20 BEPS Project

Journal Erasmus Law Review, Issue 2 2017
Keywords base erosion and profit shifting, OECD, G20, legitimacy, international tax reform
Authors Sissie Fung
AbstractAuthor's information

    The global financial crisis of 2008 and the following public uproar over offshore tax evasion and corporate aggressive tax planning scandals gave rise to unprecedented international cooperation on tax information exchange and coordination on corporate tax reforms. At the behest of the G20, the OECD developed a comprehensive package of ‘consensus-based’ policy reform measures aimed to curb base erosion and profit shifting (BEPS) by multinationals and to restore fairness and coherence to the international tax system. The legitimacy of the OECD/G20 BEPS Project, however, has been widely challenged. This paper explores the validity of the legitimacy concerns raised by the various stakeholders regarding the OECD/G20 BEPS Project.


Sissie Fung
Ph.D. Candidate at the Erasmus University Rotterdam and independent tax policy consultant to international organisations, including the Asian Development Bank.
Article

Access_open Legality of the World Bank’s Informal Decisions to Expand into the Tax Field, and Implications of These Decisions for Its Legitimacy

Journal Erasmus Law Review, Issue 2 2017
Keywords World Bank, legality, legitimacy, global tax governance, tax policy and tax administration reforms
Authors Uyanga Berkel-Dorlig
AbstractAuthor's information

    The emergence of global tax governance was triggered by common tax problems, which are now still being faced by international society of nation-states. In the creation of this framework, international institutions have been playing a major role. One of these institutions is the World Bank (Bank). However, those who write about the virtues and vices of the main creators of the framework usually disregard the Bank. This article, therefore, argues that this disregard is not justified because the Bank has also been playing a prominent role. Since two informal decisions taken in the past have contributed to this position of the Bank, the article gives in addition to it answers to the following two related questions: whether these informal decisions of the Bank were legal and if so, what implications, if any, they have for the Bank’s legitimacy.


Uyanga Berkel-Dorlig
Ph.D. candidate in the Department of Tax Law, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.
Article

Access_open The Right to Same-Sex Marriage: Assessing the European Court of Human Rights’ Consensus-Based Analysis in Recent Judgments Concerning Equal Marriage Rights

Journal Erasmus Law Review, Issue 3 2017
Keywords same-sex marriage, gay marriage, European consensus, margin of appreciation, consensus-based analysis by the ECtHR
Authors Masuma Shahid
AbstractAuthor's information

    This contribution assesses the consensus-based analysis and reasoning of the European Court of Human Rights in recent judgments concerning equal marriage rights and compares it to the Court’s past jurisprudence on European consensus and the margin of appreciation awarded to Member States regarding the issue of equal marriage rights. The contribution aims to analyse whether there is a parallel to be seen between the rapid global trend of legalisation of same-sex marriage and the development or evolution of the case law of the ECtHR on the same topic. Furthermore, it demonstrates that the Court’s consensus-based analysis is problematic for several reasons and provides possible alternative approaches to the balancing of the Court between, on the one hand, protecting rights of minorities (in this case same-sex couples invoking equal marriage rights) under the European Convention on Human Rights and, on the other hand, maintaining its credibility, authority and legitimacy towards Member States that might disapprove of the evolving case law in the context of same-sex relationships. It also offers insights as to the future of European consensus in the context of equal marriage rights and ends with some concluding remarks.


Masuma Shahid
Lecturer, Department of International and European Union Law, Erasmus School of Law, Rotterdam.
Article

Access_open An Empirical Study of the Voting Pattern of Judges of the International Court of Justice (2005-2016)

Journal Erasmus Law Review, Issue 3 2017
Keywords voting pattern, ICJ judges, empirical research
Authors Xuechan Ma and Shuai Guo
AbstractAuthor's information

    The Statute of the International Court of Justice stipulates that judges shall exercise their powers impartially. We question the practicability of this statement and examine whether the voting pattern of the judges are biased. In this light, empirical research is conducted on cases adjudicated from 2005 to 2016. We find strong evidence that (1) judges favour their home States or appointing States; and (2) judges favour States that speak same majority language with their home States.


Xuechan Ma
Xuechan Ma, Ph.D. candidate at Leiden University, LL.M. and LL.B. at Peking University. Email address: x.ma@law.leidenuniv.nl.

Shuai Guo
Shuai Guo, Ph.D. candidate at Leiden University, LL.M. and LL.B. at China University of Political Science and Law. Email address: s.guo@law.leidenuniv.nl.
Article

Equal Access to Information & Justice: A Report on the Online Dispute Resolution (ODR) Forum 2017

The Huge Potential of ODR, Greatly Underexplored (Paris, France, 12 and 13 June 2017)

Journal International Journal of Online Dispute Resolution, Issue 1 2017
Keywords ODR, equal access, justice online, information online, ICC
Authors Mirèze Philippe
AbstractAuthor's information

    This article is a brief report on the two-day conference on ‘Equal Access to Information & Justice, Online Dispute Resolution’, organized by the ICC in Paris on 12-13 June. Over 160 lawyers, magistrates, academics, researchers, dispute resolution organizations and online dispute resolution providers, from over 30 countries and representing each continent debated about the use of technology for the resolution of all types of disputes. The 60 speakers explored the future of dispute resolution and the role of technology in all legal fields, from mediation in conflict zones, to commercial and civil disputes. The huge potentials greatly underexplored were discussed. It was noted that much remains to be done to educate users and convince state courts, dispute resolution organizations, merchants and other services’ providers to offer access to justice online. Efforts must be undertaken to allow users seek remedy in an affordable way. The solution for an equal access to justice is to make such access available online. The issues of ethics and standards were also discussed, as well as the increase concern of data protection and cybersecurity. The recording of the discussions on the panels are available on the ICC Digital Library (ICCDRL).


Mirèze Philippe
Mirèze Philippe is a special counsel at the Secretariat of the ICC International Court of Arbitration. She is the founding co-president of ArbitralWomen and member of the Board, member of the Steering Committee of the Equal Representation in Arbitration Pledge, member of the Board of Advisors of Arbitrator Intelligence, member of the Advisory Board of Association Arbitri, and fellow of the National Center for Technology and Dispute Resolution.
Article

Fixed Book Price Regimes

Beyond the Rift between Social and Economic Regulation

Journal European Journal of Law Reform, Issue 3 2017
Keywords fixed book price policies (FBP), Brazil, Resale Price Maintenance (RPM), social regulation, antitrust law
Authors Carlos Ragazzo and João Marcelo da Costa e Silva Lima
AbstractAuthor's information

    Brazil is currently discussing the introduction of a nation-wide Fixed Book Price (“FBP”) policy, thus providing context for a discussion of its welfare benefits. There is a rift between the reasons for implementing FBP regimes, and those used to scrutinize them. In order for the debate surrounding the pros and cons of implementing FBP regimes to become more productive, one must investigate the links between the reasons for designing and enforcing such policies, on one side, and standard antitrust analysis, on the other. There are many interesting arguments at the table that both corroborate and compromise the case for an FPB policy. However, throughout history, these policies have experimented cognizable trends. The objective FBP regimes pursue and their design have changed subtly, yet relevantly throughout history. In our view, the current academic and public policy debate surrounding FBP regimes, in both countries considering adopting or revoking them, would benefit from an enhanced awareness of these trends and their policy implications. Ultimately, so would the antitrust analysis of these policies. We argue that a better grasp of these trends could potentially result in a more sober examination of the welfare risks associated with FBP policies.


Carlos Ragazzo
Carlos Ragazzo is Professor of Law at Fundação Getulio Vargas in Rio de Janeiro; he has a doctorate degree from Universidade do Estado do Rio de Janeiro (UERJ) and an LL.M from New York University School of Law.

João Marcelo da Costa e Silva Lima
João Marcelo da Costa e Silva Lima has an M.A. in Regulatory Law from Fundação Getulio Vargas in Rio de Janeiro.
Article

Report of the UNCOPUOS IISL-ECSL Symposium

Legal Models for Exploration, Exploitation and Utilization of Space Resources 50 Years after the Adoption of the Outer Space Treaty

Journal International Institute of Space Law, Issue 9 2017
Authors Jinyoung Choi, Claudiu-Mihai Taiatu and Qing Zhao
Author's information

Jinyoung Choi
Jinyoung Choi, LL.B., LL.M, Ph.D. Candidate, International Institute of Air and Space Law, Leiden University.

Claudiu-Mihai Taiatu
Claudiu-Mihai Taiatu, Attorney at Law and LL.M. Candidate, International Institute of Air and Space Law, Leiden University.

Qing Zhao
Qing Zhao, LL.M. Candidate, China University of Political Science and Law.
Article

Access_open Evaluating BEPS

Journal Erasmus Law Review, Issue 1 2017
Keywords tax avoidance, tax evasion, benefits principle
Authors Reuven S. Avi-Yonah and Haiyan Xu
AbstractAuthor's information

    This article evaluates the recently completed Base Erosion and Profit Shifting (BEPS) project of the G20 and OECD and offers some alternatives for reform.


Reuven S. Avi-Yonah
Reuven Avi-Yonah is Irwin I. Cohn Professor of Law, the University of Michigan.

Haiyan Xu
Haiyan Xu is Professor of Law, University of International Business & Economics, Beijing; SJD candidate, the University of Michigan.
Article

Access_open Corporate Taxation and BEPS: A Fair Slice for Developing Countries?

Journal Erasmus Law Review, Issue 1 2017
Keywords Fairness, international tax, legitimacy, BEPS, developing countries
Authors Irene Burgers and Irma Mosquera
AbstractAuthor's information

    The aim of this article is to examine the differences in perception of ‘fairness’ between developing and developed countries, which influence developing countries’ willingness to embrace the Base Erosion and Profit Shifting (BEPS) proposals and to recommend as to how to overcome these differences. The article provides an introduction to the background of the OECD’s BEPS initiatives (Action Plan, Low Income Countries Report, Multilateral Framework, Inclusive Framework) and the concerns of developing countries about their ability to implement BEPS (Section 1); a non-exhaustive overview of the shortcomings of the BEPS Project and its Action Plan in respect of developing countries (Section 2); arguments on why developing countries might perceive fairness in relation to corporate income taxes differently from developed countries (Section 3); and recommendations for international organisations, governments and academic researchers on where fairness in respect of developing countries should be more properly addressed (Section 4).


Irene Burgers
Irene Burgers is Professor of International and European Tax Law, Faculty of Law, and Professor of Economics of Taxation, Faculty of Business and Economics, University of Groningen.

Irma Mosquera
Irma Mosquera, Ph.D. is Senior Research Associate at the International Bureau of Fiscal Documentation IBFD and Tax Adviser Hamelink & Van den Tooren.

Olga A. Volynskaya
Russian Foreign Trade Academy, Russian Federation, o.a.volynskaya@gmail.com.

Robin J. Frank
Robin J. Frank, Esq., Associate General Counsel International Law, Office of the General Counsel, National Aeronautics and Space Administration, United States.

David R. Lopez
David R. Lopez, Attorney Adviser, Office of the General Counsel, National Aeronautics and Space Administration, United States.
Article

Emerging Approaches in Development Efforts

Chinese Perspective on Space and Sustainable Development

Journal International Institute of Space Law, Issue 5 2017
Authors Yun Zhao
Author's information

Yun Zhao
Professor of Law, The University of Hong Kong.
Article

The Hague Space Resources Governance Working Group

Second Progress Report and the Way Forward

Journal International Institute of Space Law, Issue 2 2017
Authors Tanja Masson-Zwaan, René Lefeber, Giuseppe Reibaldi e.a.
Author's information

Tanja Masson-Zwaan
Tanja Masson-Zwaan (corresponding author), International Institute of Air & Space Law, Leiden University, The Netherlands, t.l.masson@law.leidenuniv.nl.

René Lefeber
René Lefeber, Netherlands Ministry of Foreign Affairs, The Netherlands, rene.lefeber@minbuza.nl.

Giuseppe Reibaldi
Giuseppe Reibaldi, Special Space Policy Advisor, The Netherlands, giuseppe.reibaldi@gmail.com.

Dimitra Stefoudi
Dimitra Stefoudi, International Institute of Air & Space Law, Leiden University, The Netherlands, d.stefoudi@law.leidenuniv.nl.
Article

The New Handshake: Where We Are Now

Journal International Journal of Online Dispute Resolution, Issue 2 2016
Keywords consumers, consumer protection, online dispute resolution (ODR), remedies, e-commerce
Authors Amy J. Schmitz and Colin Rule
AbstractAuthor's information

    The internet has empowered consumers in new and exciting ways. It has opened more efficient avenues for consumers to buy just about anything. Want proof? Just pull out your smartphone, swipe your finger across the screen a few times, and presto – your collector’s edition Notorious RBG bobblehead is on its way from China. Unfortunately, however, the internet has not yet delivered on its promise to improve consumer protection.


Amy J. Schmitz
Amy J. Schmitz is the Elwood L. Thomas Missouri Endowed Professor at the University of Missouri School of Law and Center for the Study of Dispute Resolution, and the founder of MyConsumertips.info.

Colin Rule
Colin Rule is co-founder and Chairman of Modria.com and the former Director of Online Dispute Resolution for eBay and PayPal.
Article

ChAFTA, Trade, and Food Safety

When the Rubber Hits the Road

Journal European Journal of Law Reform, Issue 4 2016
Keywords food safety laws in China and implementation issues, China-Australia Free Trade Agreement (ChAFTA), agricultural trade, corporate social responsibility, collaborative governance
Authors Ying Chen
AbstractAuthor's information

    Over the past decade, food safety has evolved into a compelling issue in China. The Chinese government has been committed to strengthening the regulatory framework. A series of laws and regulations ensuring the quality and safety of food in the interests of public health have been promulgated. However, a fairly comprehensive set of laws, along with harsh punishments, does not substantially deter food safety violations. Rather, foodborne illnesses continue to occur on a daily basis. How to improve food safety has become China’s national priority; it is also the main focus of this research. This article determines that one of the main obstacles to food safety is poor implementation of laws. It identifies the external and internal impediments to food safety governance in China. It further proposes an evolving series of potential solutions. Externally, weak enforcement undermines the credibility of the food safety laws. Internally, food manufacturers and distributors in China lack the sense of corporate social responsibility (CSR). To effectively reduce or even remove the external impediment, it is imperative to improve the overall governance in various sectors. As for the internal impediment, incorporating CSR principles into business operations is vital for food safety governance. In fact, the enforcement of many regional trade agreements, in particular, the enforcement of China–Australia FTA (ChAFTA) will largely increase market share of Australian food products in China. Undoubtedly, Chinese food businesses will face unprecedented competition. The pressure to gain competitive advantages in food markets yields an enormous change in motivation for Chinese food businesses. Chinese food companies will ultimately be forced to ‘voluntarily’ integrate CSR principles into their business operations. A significant change in the food sector is expected to be seen within the next decade. The article concludes that better practice in food safety governance in China requires two essential elements: a comprehensive regulatory and cooperative framework with essential rules and institutions, and an effective implementation mechanism involving both the public and private sectors.


Ying Chen
Dr. Ying Chen, Lecturer in Law, University of New England School of Law, Armidale, NSW2351, Australia. Email: ychen56@une.edu.au.
Article

Narrative Approaches to Understanding and Responding to Conflict

Journal International Journal of Conflict Engagement and Resolution, Issue 2 2016
Keywords narrative, conflict resolution, development, assessment, evaluation
Authors Sarah Federman
AbstractAuthor's information

    While stories have circulated for millennia and constitute the very fabric of life in society, narrative as an optic for understanding and engaging with conflict emerged in the field of conflict resolution only in the past few decades, and has already amassed an array of significant contributions (Bar-Tal and Salomon, 2006; Cobb, 2013; Grigorian and Kaufman, 2007; Kellett, 2001; Lara, 2007; Nelson, 2001; Rotberg, 2006; Winslade and Monk, 2000). They encompass several spheres of action. Narrative analysis provides a means to locate individual and communal meaning in their discourse and to pinpoint conflicts in their world views that threaten their identity and agency. Further, it helps explain how marginalized people remain marginalized. Narrative interventions allow for conflict transformation, helping people to renegotiate their social positions and reclaim lost agency stemming from marginalized positions. Narrative evaluation highlights the flexibility of that model to measure change through a detection of discursive shifts over time. This article provides an overview of narrative approaches to conflict, answering: (a) What is narrative and what is its potential as a tool for understanding and responding to conflict? (b) How might we conduct a narrative analysis of a conflict? (c) From this analysis, how might we then construct narrative interventions and programme evaluations?


Sarah Federman
Sarah Federman is an Assistant Professor at the University of Baltimore in the department of Negotiations and Conflict Management. Federman completed her doctorate at George Mason University’s School for Conflict Analysis and Resolution where she studied the role of the French National Railways (SNCF) in the Holocaust and the on-going conflict in the United States over whether the company has done enough to make amends. She used narrative and ethnographic methods to construct a narrative landscape of the conflict over time and to better understand the social construction of victim-perpetrator binaries. Federman began this research as a masters student at the American University of Paris.
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