Band 18, Heft 2

Modern constitutions often contain ‘emergency’ provisions which confer upon the executive, the right to assume unfettered authority free of checks and balances, to respond to extra-constitutional crisis situations. Constitutional theorists, relying on the debate between Hans Kelsen and Carl Schmitt in the context of the Staatgerichtshof’s decision in Prussia contra Reich, have laid out two contrasting normative visions of these emergency powers. While some envisage emergencies as existing outside the constitutional order, to be resolved by sovereign dictators exercising constituent power, others argue that emergency provisions ought to be understood as within the constitutional structure. Recently, these emergency powers were used by the central government in India to abrogate the constitutionally mandated autonomous status of Jammu and Kashmir, thereby enacting a permanent constitutional change in response to a temporary extra-constitutional situation. Using these changes in Kashmir as an exemplar, this paper examines the normative position of such emergency provisions in Indian constitutionalism. By analyzing the Indian and Jammu and Kashmir constituent assembly debates, Kelsenian and Schmittian visions and comparatively considering the development of emergency jurisprudence in India and Pakistan, this paper argues that the Indian constitution has sought to constrain the exercise of such provisions through the courts by prescribing a democratic ‘constitutional morality’.

Natural resources are the foundation for all life on earth, which all living creatures depend on to exist. Thus, it is subject to many sorts of laws and policies. Globally, constitutions follow different approaches to dealing with their respective country’s natural resources, which are rooted in the diverging cultures, political, economic, and legal systems, as well as in the distinct historical developments of the diverse constitutional orders. Accordingly, the present contribution discusses the prominent similarities between the inclusion of provisions relating to ownership, exploitation and exploration, and the use of natural resources, be they renewable or non-renewable, but also notes the different perspectives adopted and methods of protection applied in the analysed countries’ constitutions. The countries discussed in this paper are South Africa and Chad; Brazil, Cuba, and Bolivia; India and Iran; Germany; and Australia. This paper begins by, firstly, defining ‘natural resources’ and delineating its overlapping concepts. Secondly, the framework for comparison of the analysed countries is set out. Thirdly, the countries selected are separately discussed. Lastly, the comparative analysis is presented with a few concluding observations.

The Russian invasion of Ukraine has had many ramifications beyond the immediate fallout of this egregious act of aggression. The blatancy of such unlawfulness at the EU’s periphery has drawn attention to a somewhat understudied provision, which, however, holds significant relevance given Ukraine’s recently awarded status as an EU candidate: The mutual assistance clause under Art 42(7) TEU. This clause will be examined by exploring its meaning and place in the European security architecture, on its own and in complementarity with Art 5 of the North Atlantic Treaty. It will be argued that both provisions of legally prescribed solidarity bear a curious and uncomfortable semblance to Schrödinger’s cat, capable of appearing as strongly worded, hard-law obligations and as undetermined intentions simultaneously. In particular, both clauses entail intentional normative ambiguity in regard to the forms of assistance to be rendered. Reflecting on how Art 42(7) TEU fits into the EU constitutional framework, it is shown that the mutual assistance clause can be read as capable of holding space for flexible and creative approaches to the legal obligations of the Member States, while as yet falling short of representing an autonomous, EU-based architecture of defence and security.

This article analyses the constitutional complaint in Kosovo through the lens of governmental liability and constitutional certainty. Although it is one of the most significant legal mechanisms for the protection of human rights in Kosovo, the remedial impact of a constitutional complaint does not appear to be appropriate for granting ‘just satisfaction’ and holding a public authority accountable for a violation of constitutional rights. To make the state’s constitutional liability for human rights violations a reality, additional legislative reforms are necessary. The introduction of ‘constitutional damage’ award in the context of the Kosovan constitutional judiciary is therefore especially pertinent to this end. Such a remedy would hold the state accountable for abuses of human rights originating from the unconstitutional behavior of government officials. It would finally provide victims of constitutional rights violations with appropriate means of legal redress, which is the ultimate end of constitutional justice. The constitutional principle of ‘legitimate expectation’ is also not unimportant in this context. By offering a critical perspective on the Constitutional Court’s case-law, this article argues for the significance of adhering to the ‘legitimate expectations’ principle to ensure equality of the parties in constitutional litigation proceedings and a constant development of constitutional jurisprudence that is vital for the Kosovan democracy.

This article bridges comparative constitutional law with research inspired by city leadership and the opportunities that technology brings to the urban environment. It looks first to some of the causes of rapid urbanization and finds them in the pitfalls of antidiscrimination law in federations and quasi-federations such as the United States and the European Union. Short of achieving antidiscrimination based on nationality, the EU has experimented with data privacy as an identity clause that could bring social cohesion the same way purportedly freedom of speech has done in the US. In the City however, diversity replaces antidiscrimination, making cities attractive to migrants across various walks of life. The consequence for federalism is the obvious decline of top-down or vertical, state-based federalism and the rise of legal urbanism whereby cities establish loose networks of cooperation between themselves. These types of arrangements are not yet a threat to the State or the EU but might become such if cities are increasingly isolated from the political process (e.g., at the EU level) and lack legal means to assert themselves in court. City diversity and openness to different cultures in turn invites a connection to new technologies since unlike antidiscrimination that is usually strictly examined on a case-by-case level, diversity can be more readily computed.  Finally, the article focuses on NYC and London initiatives to suggest a futuristic vision of city networks that instead of using social credit score like in China, deploy data trusts to populate their urban environments, shape city identities and exchange ideas for urban development..