Volume 11, Issue 1 -

In some circles the idea of international constitutionalism, or international constitutional law, appears to provoke a considerable and perhaps unexpected degree of resistance, and indeed animosity. My goal on this occasion is to try to figure out why this attitude of scorn might exist, and in the process also to say something about the relationship between international law and international constitutionalism.

Constitutionalization is a peculiar process which characterizes the whole fabric of modern international law. It may however display different levels of evolution and different implications when distinct legal sub-systems are considered: this appears to be especially true at the European level, in particular in the context of the European Union law and of the European Convention on Human Rights. This article aims at unveiling the key elements of the constitutionalization process as developed by the judges sitting in Luxembourg and Strasbourg. In their relevant case law, both the EU Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) have identified the core concepts and elements lying behind the constitutionalization of their respective legal systems. The analysis of the ECJ and ECtHR case law will be divided into two different parts dealing with the internal dimension from one side, and external one from the other side. While presenting nuances and implications that are linked to the diverse degree of integration of the two legal systems, it may be submitted that the core elements of constitutionalization depicted by the Luxembourg and Strasbourg judges reveal some common patterns.

This article examines the human flesh search ( Ren Rou Sou Suo ), which may be the most salient and controversial phenomenon in the Chinese cyberspace. Unlike the conventional view that treats the human flesh search as illegal or trivial, this article argues that: first, the human flesh search may indeed have some ‘bad’ aspects (eg libel and privacy infringement), but the laws we have so far are sufficient in regulating these ‘bad’ aspects without scapegoating the entire human flesh search; second, and more importantly, every human flesh search is an online free speech mass movement. It gives millions of ordinary Chinese citizens a chance to express themselves in various forms and on wide-ranging topics, and allows them to create a new and more democratic culture. For the first time, activating the long dormant Article 47 of the Chinese Constitution and creating a culture ‘of the people, by the people, for the people’ may become possible in China.

In this judgment the Austrian Constitutional Court pronouned that the runoff election of the Federal President had to be repeated in its entirety in all of Austria. It held that the system of postal voting is in conformity with the constitutional principles of voting in person and secrecy of ballots. However, votes may only be handled and counted by the collegiate election boards, the representative composition of which is seen as a specific guarantee for a transparent and impartial carrying out of elections. If state authorities transmit results of the vote count prior to the closing of the election, this runs counter to the principle of freedom of voting. A challenge to an election must be allowed if proven infringements of legal provisions aiming to prevent manipulations affect a decisive number of votes, regardless of whether or not manipulations have actually occurred.

The decision of the Austrian Constitutional Court to annul the run-off election of the Federal President in 2016 has caused a broad (and overdue) discussion in the field of voting regulations. The important task of electoral jurisdiction conferred to the Constitutional Court is highly delicate, linking the political and democratic process to the competence of the Constitutional Court to safeguard the rule of law and the constitutionality of elections.

One reason for the annulment of the Presidential Election was the violation of the principle of free elections enshrined in the Austrian Federal Constitutional Law (cf VfGH 1.7.2016, W I 6/2016, paras 511 ff). This can be seen as a consistent further development of former case-law by the Constitutional Court.

In the course of the annulment of the run-off election of the Federal President by the Austrian Constitutional Court in 2016 formal unlawfulness became evident. This contribution argues that the Constitutional Court did not sufficiently consider if the proven illegalities actually had an effect on the election result. Furthermore, it discusses if the jurisprudence concerning electoral freedom needs to be interpreted more extensively in times of new media.

It follows from the settled case-law of the European Court of Human Rights (ECtHR) that the legal obligation of landowners to tolerate hunting on their property, although they oppose hunting on ethical grounds, may constitute a violation of the right to the peaceful enjoyment of one’s possessions. On the occasion of a landowner’s constitutional complaint the Austrian Constitutional Court assessed such obligation under the Carinthian Hunting Act and came to a different conclusion. In Austria there was a particular public interest in the comprehensive management of game which justifies the obligation to tolerate hunting despite of one’s beliefs. The landowner’s possibility to have the hunt suspended on land that is fully enclosed by a stable fence provided for in the provision was considered appropriate in order to protect the owners’ ethical interests. The Austrian Constitutional Court thus found that the compulsory hunting on one’s land in Carinthia does not violate Article 1 of Protocol No 1 to the ECHR.

The Constitutional Court declared in its ruling 22/2016 (XII 5) that by exercising its competences, it can examine whether the joint exercise of competences under Article E) (2) of the Fundamental Law of Hungary infringes human dignity, other fundamental rights, the sovereignty of Hungary, or Hungary’s self-identity based on its historical constitution.

In its decision U 3/13 from 26 November 2015 the Bosnian Constitutional Court found on the request of a Member of the Presidency of Bosnia and Herzegovina that Article 3 (b) of the Law on Holidays of the Republika Srpska concerning the 9 January as ‘Day of the Republic’ is not in conformity with Article I (2) of the Constitution of Bosnia and Herzegovina, Article II (4) of the Constitution of Bosnia and Herzegovina in conjunction with Article 1 (1) and Article 2 (a) and (c) of the International Convention on the Elimination of All Forms of Racial Discrimination, and Article 1 of Protocol No 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Constitutional Court ordered the National Assembly of the Republika Srpska to harmonize Article 3 (b) of the Law on Holidays of the Republika Srpska with the Constitution within a time limit of six months from the date of delivery of the decision and to inform the Constitutional Court of the measures taken to enforce the Decision.