Comparative Constitutional Law - 12.06.25

Who was Jean Bodin?

• Introduced concept of sovereignty 

• Fragmentation of power was threatening public order in France

• Argued for strong centralized authority to preserve unity and peace 

  • → Ideas influenced absolutist monarchies in France and state sovereignty in international law

• Developed sovereignty in the Reformation as a protest against the Church, law/rules independent from religion

Who was Thomas Hobbes?

• People give up liberty to a sovereign authority (a Leviathan) in exchange for peace and order

• State of nature = State of war – dangerous, violent and uncivilized

  • Absolute power to prevent chaos

• Hobbes justifies autocracy if it ensures security

• 12 principles:

  • Sovereign cannot be overthrown

  • Sovereign defines justice, controls religion, punishes arbitrarily etc. 

    • → Blueprint of an unlimited government (autocracy)

    • In contrast, liberal constitutions (US or German Basic Law) are built to limit powers through checks and balances

Who was John Locke?

• Argues that if a ruler has absolute power, then people are unsafe as in the state of nature

• Sovereignty belongs to the people (liberal constitutionalism)

  • Parliamentary oversight, judicial review and rights protection

• “State of nature” =  State of peace – goodwill and mutual assistance, freedom with moral boundaries (because people are governed by reason)

  • All men are free "to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature

    • People are free and equal, but governed by reason, and government is only legitimate with consent

    • Influenced the US constitution, declaration of independence + post-colonial constitutions

Who was Montesquieu?

• Separation of powers (legislative, executive, judicial)

• Most modern constitutions are shaped by Montesquieu’s theory

Who was Jean-Jacques Rousseau?

• “Man is born free, and everywhere he is in chains”

• General will as the basis of law

• Direct democracy over representatives systems

• Major influence on the French Revolutionary constitution

Who was E.J. Sieyes?

• A rallying cry during the French revolution:

  • (1) Third estate (common people) = Everything

  • (2) In politics = Nothing

  • (3) What it wants = To become something

• Popular sovereignty = Government is authorized by the will of the people

• Modern constitutions view source of authority by people, not monarchs or elites 

Created the idea of the “pouvoir constituant” (constituent power) — the people as the authors of the constitution

• And Constituting power where authority’s power derive from the constitution

Sieyes argued that “The Third Estate is everything, it wants to become something.”, he rejected the idea that nobility held sovereign authority, rather the people.

Who was Mary Wollstonecraft?

• Challenged the patriarchy, advocated for equality and education for women

• Early constitution excluded women and other groups of people

What’s the difference between Hobbes, Locke & Rousseau regarding a social contract?

Social contract = All people give away a piece of their own sovereignty in exchange to form a functioning society

• Hobbes: People give all their rights to a sovereign authority (king) to avoid chaos, contract between individuals and sovereign authority

• Locke: People give power to the state to protect life, liberty, and property, second contract between individuals and government

• Rousseau: The people should rule themselves through the general will, contract between people themselves

Hobbes and Rousseau do not envision a second contract between citizens and the state compared to Locke.

What are the key concepts from Week 1?

• Rule of law = State is governed by laws, not arbitrary will

• Rechtsstaat = German idea emphasizing legality and legal certainty

• Democracy =

  • Direct = Referenda

  • Indirect = Parliament

• Sovereignty = Different forms (internal, external, royal, national)

• Constituent power = The power to make a constitution (above any government/legal rule, often identified with the people)

  • E.g. French Revolution with the Third Estate 

• Constituting power = Government power existing because of the constitution (president, parliament, courts) 

  • In the U.S., the President, Congress, and Supreme Court are all constituted powers

• Social contract = All people give away a piece of their own sovereignty in exchange to form a functioning society

  • “Contract” justifies the existence of the state and law

    • Hobbes: People give all power to a king to avoid chaos

    • Locke: People give power to the state to protect life, liberty, and property

    • Rousseau: The people should rule themselves through the general will

• Autocracy = Power centralized by one ruler

How can a lack of amendment be explained in a royal decree?

A royal decree is granted by the monarch which means it is not adopted by people or a constituent body, thus does not need a clause for amendment since it is not a contract between sovereign people and government

 What main difference sets Hobbes’ concept of citizenship apart from that of Rousseau?

• Hobbes’ concept of citizenship (vertical) emphasizes that citizens give up liberty to a sovereign authority in exchange for a functioning and peaceful society.

  • Once a social contract is formed between citizens and the government, individuals relinquish/lose all rights to question authority. 

• Rousseau (horizontal) stated that citizens form sovereign through general will.

  • Thus, true citizenship is about active participation in shaping laws etc. Individuals remain free because they have chosen to participate with the general will of the majority of people

How has Rousseau solved the issue of mankind being able to remain free at the same time as he gives up his liberty when entering a social contract?

Rousseau’s model is based on the general will of people so following laws is obeying oneself as you contributed into making them.

• Individual liberty → Collective freedom

What is a constitution?

• Narrow (formal) = A central, written document that sets out basic rules that apply to the government of socio-political entities (states, e.g. Basic Law, Charter) 

  • The US Constitution or Germany’s Basic Law

• Broad (substantive) = The entire body of fundamental rules that govern that socio-political entity (written or unwritten, guiding socio-political order)

  • E.g. The UK has not single written constitution

Who was Dieter Grimm?

Former judge on the German Federal Constitutional court who:

• Constitution is a set of legal norms w/ purpose to establish supremacy + hierarchy

• Core function is to constitute political order (creates public offices and defines how they are filled and what powers they hold)

• Fundamental democratic principle in Grimm’s theory is that people are the source of constitutional authority 

  • Pouvoir constituent (constituent power) = The people who create the constitution 

  • Pouvoir constitute (constituted powers) = The institutions (executive, legislature, judiciary) created by the constitution and subject to it

• Because authority derives from the constitution, government power is limited by it (no one is above the constitution)

  • Supremacy principle = No political authority can act above or outside the constitutional framework

What are the functions of a constitution?

• Popular sovereignty: Institutional organization, operationalize democracy 

• Legality (separation of powers): 

  • Institutional organizations 

  • Guarantee fundamental rights

  • Express national values and goals

What are the types/characteristics of constitutions?

• Rigidity/flexibility

  • Level of difficulty of amendment

• Descriptive/prescriptive 

  • Reflecting current reality vs. guiding future practice

• Evolutionary/revolutionary

  • Gradual development vs abrupt change

• Constitutive/programmatic

  • Setting structures vs. stating ideals

• Substantive (super) entrenchment

  • Protects certain content, e.g. fundamental rights

• Conditional (super) entrenchment

  • Specific conditions for change

• Temporal (super) entrenchment

  • Time-restricted amendments

What is constitutional efficacy?

• The degree with which what is legally prescribed by the constitutional text (de jure) corresponds with the behavior that actually (de facto) occurs

  • Smaller difference = Higher degree of efficacy

What is the judiciary’s role?

• Venice Commission (2010):

  • Judges have lifetime appointments, not probation

  • Independent judicial councils should oversee appointments 

  • Salaries must be guaranteed and non-discretionary

What is Verfassungswandel?

• Constitutional change = Informal or unwritten changes in the way a constitution is interpreted, applied, or functions without any formal amendment to the constitutional text

Who is Antonin Scalia?

• Originalism = Constitution should be interpreted according to its original meaning—that is, what the text meant to the public at the time it was adopted

  • Limits judicial review

• He rejected the idea of a living constitution = The meaning of the Constitution should evolve with changing societal values

  • undemocratic, subjective without people’s will

What are the key concepts from Week 2?

• Constitution (Narrow (formal): Written document, Broad (substantive): Rules, practices and traditions)

  • Flexible/rigid, descriptive/prescriptive, programmatic (vision board for country, goals/values)

    • Substantive (some content remain unchanged)

    • Conditional (can be changed under certain conditions)

    • Temporal entrenchment (cannot change something for a certain amount of time)

    • Super entrenchment (strongest type, nearly impossible or extreme conditions)

  • Evolutionary/revolutionary

• Horizontal separation of powers (Legislative (makes the laws); Executive (enforces the laws); Judicial (interprets the laws))

  • Parliamentary, presidential, semi-presidential 

• Parliamentary confidence

  • The Prime Minister must have the support (confidence) of the majority in parliament.

    • If they lose that support, they may have to resign or call new elections

• Verfassungswandel = Constitutional change without formal amendments

  • Meaning of constitution changes over time without changing the actual written text

What are the similarities between a written constitution and the idea of a social contract?

• The constitution and the idea of a social contract (Rousseau) have the power derived from the people (popular sovereignty)

• Both establish the basis of legitimate power because the government only has authority because the people consent to it (pouvoir constituant — constituent power)

• A constitution outlines obligations of both rulers and the ruled (state must respect rights, citizens must follow laws)

Why does a highly entrenched constitution not necessarily constitute a rigid constitution?

• A constitution can be highly entrenched on paper but considered more flexible in practice with judicial interpretation (Verfassungswandel)

• Behavior (de facto) can differ from the constitutional text (de jure)

What are the 3 purposes of consitituions?

1. Set up and maintain an effective state

   • Constitution helps structure the government and its functions 

2. Establish and respect democracy 

3. Abide rule of law

→ Interdependent; Without an effective state and government, you cannot enforce democracy in a state which makes it impossible to abide the rule of law which ensures that no one is above the law if the people are in charge like in a democracy

What are the different forms of government?

1. Presidential system

   1. Separation of powers between the executive and legislature.

   2. The President is directly elected by the people and holds both head of state and government roles.

   3. The legislature (Congress) is separately elected and independent.

2. Parliamentary system

   1. The executive is derived from and accountable to the legislature (parliament).

   2. The head of government (e.g., Prime Minister or Chancellor) is typically the leader of the majority party or coalition in parliament.

   3. The head of state is usually ceremonial (e.g., monarch in the UK, president in Germany).

   4. The government can be removed by a vote of no confidence.

   5. There is often a fusion of powers (executive and legislative branches are interconnected).

3. Semi-presidential system

   1. Dual executive: a President and a Prime Minister (PM).

   2. The President is directly elected and has significant powers (e.g., foreign policy, defense).

   3. The PM is appointed by the President but must have the confidence of parliament.

What is legislation?

• Process of making law (by legislator) → Acts (statutes, laws)

• Legislation is established through statutes/acts

  • A proposed legislation is referred to as a bill

  • A bill becomes law or an act

  • Legislation process vary from state to state

  • Legislation derives authority from elected legislative bodies

What is a parliament?

• Legislative bodies representing the people (piece of the legislative branch)

  • Unicameral = One chamber, initiative comes from there

  • Bicameral =

    • Lower = Directly elected by the people

    • Upper = Indirectly appointed/elected (e.g. House of Commons)

• The legislative branch is primarily responsible for making laws

  • The executive branch shares a significant role by influencing and enforcing legislation

• Parliament is not exclusively to parliamentary systems

What are the 3 functions of a parliament?

1. Lawmaking/budget approval 

   • Debating proposals, drafting and amending bills 

   • Constitutional amendment 

   • Not being able to agree on the annual budget can lead to new elections/government (only in true parliamentary stems, not the UK)

2. Scrutiny/holding account to (monitoring the government)

   • Budget authority ensures government cannot spend without legislative approval 

3. Representation of people/formation of government

   • Parliaments have committees for detailed scrutiny of bills

   • Each party represents a movement/goal → Ensures legitimacy

   • Government is drawn from members of parliament

What is bicameralism?

• Checks and balances in governance

• Countries make use of the bicameral systems for different reasons

  • Two chambers can counterbalance legislative power (The Netherlands)

  • Representation for ethnic groups (Ethiopia)

  • Class distinctions (UK)

What is symmetrical and asymmetrical bicameralism?

• Italy = Perfect bicameralism

  • Each house has equal power

  • But slows down process of legislation

• The Netherlands = Asymmetrical bicameralism

  • Upper house has limited power

  • Can only vote yes or no on new legislation, does not have a say

What is the majoritarian electoral system?

• Winner takes all – Two rounds 

• Emphasizes geographical representation

• Can lead to one party government (advantage or disadvantage?)

• Pros:

  • Clear outcomes, expectations

  • Each district can give one or three representatives, bigger cities = more representatives 

• Cons: 

  • Disproportionate results

  • Votes “wasted”

  • People cannot relate to their legislator in the big cities → Underrepresentation

What is the proportional representation system?

• Evenly distribution of votes, every party gets seats in the parliament depending if they get enough votes (seats are allocated to amount of votes)

• Necessary to form a coalition = 4 or 5 political parties working together, may be difficult to agree/compromises (different in practice but this is on paper)

• Pros:

  • Considered fair for everyone as they are represented from people’s votes

  • Representation of minorities 

• Cons:

  • Fragmentation → Political instability (Germany’s collapse 2024, Belgium), slow governance

What is the mixed electoral system?

• Germany is an example of a mixed electoral system which is developed to assess the disadvantages of majoritarian and proportional systems

How is the independence of the parliament protected?

1. Parliamentary immunity

2. Fixed parliamentary terms

3. Parliamentary privilege

   1. Freedom of speech

4. Free mandate

   1. Not bound to electoral promises, can decide what is best after being in parliament 

‘In a state that has a clear-cut presidential system, introducing a high electoral threshold for parliamentary elections will significantly contribute to the stability of the executive.’ Defend or oppose this proposition

• In a presidential system, the executive which is the president is directly elected and independent of the parliament (does not need parliament’s confidence) so it is already stable in that sense

• High thresholds may harm representation and risk authoritarianism if only the dominant parties receive the most seats (stability of parliament is independent of the stability of the president/executive)

• In parliamentary systems, if there is a high threshold for a party to get a seat in the parliament then the executive will become more stable because there are less disagreements from extreme minority parties which will naturally stabilize it (fragmented)

In most States, two of the three powers that Montesquieu distinguishes are involved in the procedure to make treaties binding upon the state. Explain why concluding treaties does not neatly fit into the separation of powers

• Legislative (ratification) and executive (negotiating) branches that are involved in the procedure to make treaties that are binding upon the state

  • Executive – enforces the law

  • Legislative – makes the law

  • Judicial – interprets the law

• Unlike national law-making processes, treaties are made between sovereign states which blend the two roles when they are meant to be separate (they overlap).

  • Some trade agreements only about the executive

  • ECHR is closer to general legislation (where parliament is involved)

• However, concluding treaties does not fit into the separation of powers because the judicial role is limited and is usually of last resort if there is an initial conflict with the treaty. 

  • Before brexit, UK judges could overrule international legislation

What is the method of constitutional review by the legislator and executive?

• Pros: 

  • Democratic legitimacy, reflecting the will of the people

• Cons:

  • Self-control, they would be judging their own actions, concerns about objectivity

  • Politicization of constitutional principles, constitutional principles could be influenced by political ends, undermining neutrality

• How:

  • Consultations between ministries, government departments review draft laws together

  • Council of State, advisory bodies (France + Netherlands) gives legal opinions on draft legislation

  • (1) Parliament (specific body method): Creation of a specific body, Parliament might set up an internal constitutional committee

  • (2) Parliament (bicameral method): Bicameral system, Two-chamber system checks on itself

What is the method of constitutional review by the judiciary?

• Pros: 

  • Protection of human and minority rights, not only the majority 

  • Anticipatory effect → Encourages lawmakers to act carefully, knowing that courts can strike down unconstitutional laws

• Cons:

  • Juridification of politics, Political decisions may encroach on political matters, turning debates into legal battles

  • Political deadlock, if courts strike down important laws, it can create tension between branches of government

• How:

  • Concrete (specific legal dispute by citizens) or abstract (not tied to a specific legal dispute specific constitutional acts)

  • Ex ante (review happens before law is enacted/takes effect) or ex post (after legislation takes into effect)

  • Constitutional courts

    • Special, only centralized courts specifically for constitutional reviews like German

    • Decentralized judicial review → All districts can review the constitutionality of laws like the US

What are the key concepts from week 4?

• Efficacy = The degree to which what is legally prescribed by the constitutional text (de jure) corresponds with the behaviour that actually (de facto) occurs

• Ex-ante (advisory opinion) = Const. review before adoption/enters into force

• Ex-post = Review after adoption

• Abstract review = A review of the law in general, without reference to a specific case or individual situation

  • Usually state institutions (e.g. president, parliament, ombudsman)

• Concrete review = Review that arises from a specific legal case, usually in the context of a court dispute.

  • Judges or parties in an actual case

• Centralized = Only a specialized constitutional court can decide questions of constitutionality

• Decentralized = All ordinary courts, including the supreme court, can decide constitutional questions

• Consequences? Disapplication or annulment

  • Judges are not fond of annulment because it means that the law could ever be applicable

Briefly discuss two methods of constitutional assessment that do not call for involvement of a judicial body.

1. Constitutional council model = Non-judicial bodies specifically made to review constitutionality 

2. Parliamentary review = Parliament itself review constitutionality (internal constitutional committee) → Criticism because they are not elected, Bicameralism

What is Art. 120 of the Dutch Constitution?

• Art. 120 Grondwet (prohibition on constitutional review by judiciary)

  • Only acts of parliament cannot be reviewed (parliament + government)  

    • → The legislator is the only one able to review their own laws which is highly problematic

    • Also problematic since individuals cannot go to court for their fundamental rights

  • No recognition of minority rights because no one could check if some provisions are unconstitutional

  • Favours democracy because citizens elect members of parliament so they can decide on the constitutionality

  • Highest administrative judge cannot review constitutionality of acts of parliament (lower legislation) → Not efficient

What is entrenchment?

• = Provisions of the constitution are hard to amend

  • Written rules

What is a federal state?

• = Divided sovereignty (one to state and one to federation), two interwoven state organizations on one territory → Regional attribution of powers, regional democratic organs

  • E.g. Belgium, Germany (Lander)

• Constitutional division of public authority:

  • Attribution: Positive and negative list of competences 

    • Positive = Lists specific areas where the regional government has power

    • Negative = Lists areas that are reserved to the central government

  • Supremacy of federal law

  • State participation in federal constitutional amendment 

  • State participation in oversight (maintaining balance)

    • Interpretation of the constitution in a federal state is part of is a key aspect of governmental power

What are the effects on constitutional design of federalism?

• Bicameralism as an expression of federalism 

• Subsidiarity and proportionality as requirements to justify use of federal legislative powers

• Judiciary 

  • Separate judicial columns: Dual federalism

    • Dual federalism (regional participation in executing and adjudicating federal law) = The US

  • Integrated judicial column: Cooperative federalism

    • Cooperative federation (no regional participation but parallel federal organs) = Germany

    • Resembles the EU

  • Constitutional review

    • Maintaining vertical balance of power

What are the centripetal and centrifugal effects?

• Centrifugal = Tendency for power to move from center to regions

• Centripetal = Tendency for power or authority to move toward the center, concentrating control in a central government or authority

What is devolution?

• = Transfer of powers by a central government to local/regional administration

  • Devolution gives Scotland, Wales, and Northern Ireland considerable autonomy in areas like health, education, and transport

• The UK resembles a federal state because sovereignty i split between the states and powers are delegated to Scotland etc, but this delegation is not constitutionally entrenched, thus still unitary.

What is a confederation?

• = Limited cooperation between states, states are sovereign and create organs that can exercise certain powers, like IGOs (no split of sovereignty, bishop)

What is a unitary state?

• The state as one unit (central claim to sovereignty)

• No regional participation in constitutional amendment

• Regional legislative and executive power, BUT on the basis of attribution by law

• All courts are national courts

What are the effects on constitutional design of unitarism?

• Legislator decides at which level public authority is exercised

  • Encouraged to decentralize power but is not required

• Equality of citizens is at the core of unitarism

What is deconcentration and decentralization?

• Deconcentration = Agents of national state reside all over the country; dispersal of administrative responsibilities within the central government’s hierarchy (franchise)

• Decentralization = Actual transferral of powers to politically and administratively autonomous local or regional authorities (transferral)

What is democratic backsliding?

• = State-led debilitation or elimination of the political institutions sustaining an existing democracy

  • State-led = Fairly elected politicians

  • Slow erosion, process of democracy

• Rule by law = Governing authority as somehow being above the law

  • Run through judges, they must be independent from other governing parties (impartial)

  • One of the strategies is to replace existing judges with ones that are not impartial + independent → Overturn laws/constitution

  • Opposition (e.g. media) → Journalism focus on discovering the truth, populists buys news outlets to produce propaganda 

• Rule of law = No one (authority, government) is above the law

What is asymmetrical federalism?

1. The distribution of competences amongst the constituent states

   • The distribution of power is not equal amongst the state such as in a symmetrical one. Some regions can have more power and autonomy than others.

2. By the institutional design of the federation

   • Some states have special representation or institutions in federal decision-making bodies. For example, in Belgium with a distinct set-up and system categorized by language. 

   • Asymmetrical institutional design for federation = Some states have more votes than others, e.g. Germany (Bundesrag)

   • Symmetrical = The US

What are fundamental rights?

• 1st generation: Civil and political, freedom of religion, CCPR, negative obligations (duty not to act)

• 2nd generation (dependent on political and resources of state): Social, economic, cultural rights, European Social Charter, positive obligations (to do something)

• 3rd generation: Right to healthy environment, solidarity rights, 1992 (Rio Declaration on Environment)

What was the case of KlimaSeniorinnen v. Switzerland

• Court was aware of awkward separation of powers

  • Executive and legislative branch must check on each other, does not mean that courts must stay out of politically sensitive issues

  • Primary responsibility of Executive and parliament must take charge of climate change because they can enact laws to prevent it

  • Rule of law – Positive obligations, Switzerland is part of the international convention, thus they must take action since they set their own climate goals

  • Politics is about current affairs, but climate change is intergenerational → Thus, the court can look at all affairs and is not only political

  • State has a large margin of appreciation when not wanting to take action, thus they have the competences → Make sure there is appropriate separation of powers for state to decide what to do

• Received negative feedback after the case was published

  • (1) Invented new concepts as an international court, thus no legal basis

  • (2) The court violated the separation of powers

  • (3) The court behaves as an international court

What are the methods of interpretation?

• Principle of precedence

  • Previous case law helps determine current cases

• Textual/grammatical meaning

  • Generally meaning of the word (e.g. vehicle)

• Systematic

  • Considering the law in its legal context (text law, legislation road, import etc.)

• Historical/will of the historical constitutional legislator

  • Intended meaning when the law was drafted/implemented

• Traditional/pragmatic

  • What has the lower legislation said about the word after the ratification of the certain word

• Teleological

  • Interpreter the concept by looking at the aim of the norm/value it has been included in → Goal of word

What is the dual nature thesis by Robert Alexy?

• Constitutional rights have a dual nature 

  • Two sides to each fundamental right, positive & ideal (moral/abstract right)

    • Positive = Written in constitution

      • It has binding force within the legal system.

      • It can be invoked in court as a subjective right by individuals

      • It reflects what the law currently guarantees, based on legal procedures and democratic processes

    • Moral/abstract = Teleological, value of right

      • It reflects justice, dignity, equality, or other constitutional values.

      • It exists independently of whether it’s been perfectly written or implemented.

      • It acts as a guiding principle to shape interpretation and development of the law.

  • Thus, important to balance general principles and subjective rights in court

    • Wording is less important method of interpretation to capture the abstract view of right

    • People are hyperfocused on positive side of fundamental right

    • Historical and contextual interpretation becomes problematic

What are the methods of interpretation used by the ECtHR?

• (1) Effective interpretation

  • Access to lawyer for free

  • Without A, I cannot access B

    • Rights must be usable

• (2) Autonomous meaning

  • Court emphasis that definitions within the ECHR has autonomous meaning (its own, different from national law)

  • Distinguish between international and national court

• (3) Living instrument doctrine

  • ECHR as a living instrument which evolves with society’s changing values

    • Evolutive interpretation

    • Definitions may change as our ideas develop

• (4) Common ground-method (European consensus)

  • Diversity in how member states dealt with transitioning at that time

  • According to the court, there was an international trend of trans-rights, gender identity 

  • Looks at how most European countries handle an issue to identify emerging consensus

• (5) Meta-teleological approach: values of a democratic society

  • Interprets rights in light of the Convention’s core values: Human dignity, democracy, pluralism and rule of law

  • Art. 8 (scope, can be interpreted in many ways → discover new elements of the specific angle of the case)

What type of power is treaty-making?

• A separate federative power

  • Today, concluding treaties has become a legislative power → Parliament needs to be involved because it has to be in accordance with a procedure prescribed by law

What are the steps of treaty-making?

1. Concluding treaties (text is fixed)

   • The executive’s decision to negotiate the conclusion of a treaty

   • Semi-presidential system? (directly elected, with own mandate, same with parliament, government is dependent on both)

     • Set rules from the constitution on how the executive can negotiate because the parliament can disagree

     • Constitution decides whether president or government can conclude treaties

2. Approving treaties

   • Parliamentary approval

   • Parliament bound by treaty when it is binding

   • Some treaties need approval by an Act of Parliament

   • Parliament does not need to approve everything, depending on content of treaty

   • Treaties (approval from parliament) vs. executive agreements (does not need approval by anyone because it is made by the executive)

     • Difference between both?

       • Read in the constitution

3. Ratifying treaties (treaty is binding)

   • States are bound

   • Federalism:

     • Public authority is constitutionally split, thus difficult to make sure that treaty conclusion does not involve every state

       • Art. 1(10) US Constitution

         • “No state shall enter into any treaty (...)” 

       • Treaty conclusion is a federative power because it concerns external sovereignty

       • ⅔ of Senate approval 

       • Risk of setting the power balance between state and federation

How do states apply international law in their domestic system?

1. Pure monism = Int. law applies directly in domestic law (upon ratification)

   1. Can be invoked in domestic courts

2. Conditional monism (incorporism) = Treaties become part of domestic law upon ratification → Constitution needs to decide to what extent treaty law applies and what is applicable

   1. Treaties may or may not have prefcedence over national laws, depending on the constitution.

   2. The constitutional court may decide if a treaty can override statutes or not

   3. Both executive and parliament must be involved either way

3. Dualism/transformism = Int. does not apply automatically

   1. Treaty must be transformed into national law by an act of parliament

   2. Cannot be invoked in domestic courts

   3. Respects external sovereignty/legitimacy of democracy (elected members of parliament)

What happens when domestically applicable international law collides with national law?

• Acts of parliament (treaty transformation) below the constitution 

• Treaty conform interpretation

• Lex posterior = Newer laws overrides older ones

How does international law view domestic applicability?

• Not automatically because of external sovereignty, but a state is bound by treaties (→ pacta sunt servanda = agreement must be kept).

• But international law does not demand domestic applicability — that’s for the state’s internal law to decide.

How does constitutional law view domestic applicability?

• Not automatically because of external sovereignty (needs approval by act of parliament)

• The constitution decides to what extent int. law applies

How does EU law view domestic applicability?

• Automatic application because of the autonomy of EU law

  • Has direct effect

What is judicial activism?

• = The exercise of the power of judicial review to set aside government acts

  • Required to move past positive law (written down) → Judicial activism 

  • Demanding more from judge than just applying law, interpretation

• Critique: Subjective approach from judges, do judges make up new stuff or make use of their actual role?

What is the prismatic effect?

• = Convention rights can reflect and expand their scope over time and across all cases, not in the text of Art. 6

  • Although fixed in wording, are interpreted in light of changing contexts, values, and situations, often expanding their scope beyond the original text

What are associative rights and freedom of association?

• Associative rights = Other human rights that depend on human association or relationships

  • Rights that require a social connection or are exercised in a group context (facilitates the right to use other rights, e.g. Freedom of Speech)

• Freedom of association = Constitutional guarantees that protect an individual's ability to form and join groups with others to collectively express, promote, pursue, and defend common interests

  • Fundamental right 

  • Form groups/exchange ideas which is significant in a democratic society, representation of minority groups and political participation

  • Broad protection of all groups but it can be limited

What is the scope of freedom of assembly?

• Public gatherings (physical dimension)

• Communication/message (expressive dimension)

  • Restriction must be content neutral

  • Participants in peaceful demonstrations must not be subject to restriction → ECHR

• Positive aspect (join/form groups)

  • Make policies, decide on activities etc.

• Negative aspect (freedom to leave/not to join)

  • Some states explicitly protect the freedom to leave

• Most severe restrictions

  • Dismembering associations

What is the freedom of assoiation?

• Internal group management = Groups ability to manage their own internal affairs

  • Roberts v. Jaycees

    • Difference between intimate associations and expressive ones (larger groups formed for political activism) → More restrictive on expressive ones

    • Anti-discrimination laws easier applicable for larger and more widespread groups

    • The Court allows greater state regulation of expressive associations when:

      • The association is large/public,

      • Anti-discrimination interests are strong, and

      • The regulation doesn’t seriously undermine the group’s message

  • Boy Scouts v. Dale

    • When inclusion would alter the core message of the group, the Court protects associational autonomy more strongly

  • → Balancing autonomy and non-discrimination → States have positive obligation to respect freedom of association, not interfere (actively protect them)

What are the grounds for the ban of political parties?

1. To protect democracy (FDGO, e.g, Germany)

   • DRP, Communist party banned

   • If a party wants to abolish a democratic right/separation of powers

2. Maintaining public order/scrutiny (e.g. Netherlands, France)

   • Ban extremist groups 

   • Endangering existence of federation republic 

3. Incitement to hatred/violence

What are the different threshold for banning political parties in different countries?

• High threshold in Germany → Potential to achieve aim

  • A political party can be too insignificant, to implement racist views 

  • Case law, needs to be real/imminent danger

• Lower threshold in Netherlands + France

  • Influenced by the ECHR

  • Not explicitly mentioned in their case law, but moving more towards German approach

• USA: Brandenburg test (incitement standard)

  • Very high threshold due to the first amendment (freedom of expression)

  • Impossible standard to meet

Who decides on who can ban political parties?

• Judicial model in Germany

  • Only federal constitutional court has the power to do this

• Executive with judicial review in France

  • The president can issue an order where a party can become dissolved

  • Afterwards, judicial review in an administrative court

• Hybrid model in the Netherlands

  • Regular judge/court reviews the request before the ban (contract to French)

  • On request of public prosecution service

• “No Ban” Model in the USA

What are the underlying philosophies to understand why states differ in banning political parties?

1. Militant democracy

   1. Every democracy should make it possible to combat anti-democratic organization to preserve its existence, balancing democratic freedoms

2. Libertarian approach

   1. Must tolerate even anti-democratic ideas unless they involve actual unlawful acts, the state should not censor political views simply because they are extreme