Journal of Constitutional Law - Vol.2, 2018
Issue date: December 2018
Author: Claus Kreß
Abstract
In the early hours of 15 December 2017, the Assembly of States Parties to the Rome Statute made the decision to activate the International Criminal Court’s jurisdiction over the crime of aggression from 17 July 2018 onwards. The activation resolution was adopted after intense negotiations about one aspect of the jurisdictional regime, which had remained controversial since the adoption of the Kampala amendments on the crime of aggression. The New York breakthrough completes the work of the Rome and Kampala conferences and marks the culmination of a fascinating century-long journey. With all its imperfections, the consensus reached at the United Nations headquarters sends a timely appeal to the conscience of mankind about the fundamental importance of the prohibition of the use of force in any international legal order aimed towards the preservation of world peace.
Paper: On the Activation of ICC Jurisdiction over the Crime of Aggression
Pages: 7-24
Note: Reprinted from: Claus Kreß, On the Activation of ICC Jurisdiction over the Crime of Aggression, Journal of International Criminal Justice, Volume 16, Issue 1, 1 March 2018, Pages 1–17, doi:10.1093/jicj/mqy007, reprinted by the permission of the Author. (c) The Author 2018. For permissions please email Oxford University press at journals.permissions@oup.com.
Author: Jon Elster
Abstract
Contrary to a traditional view, constitutions are rarely written in calm and reflective moments. Rather, because they tend to be written in period of social unrest, constituent moments induce strong emotions and, frequently, violence. The paper examines two such cases: the Federal Convention of 1787 and the French Assembleé Constituante of 1789–1791. These involved state violence as well as popular violence. In the USA, the unequal political representation of the backcountry explains both the violent events leading to the Convention and its outcome. In France, the dismissal of the King’s Minister Necker explains the subsequent urban and rural violence, and ultimately the abolition of feudalism and the fall of the monarchy.
L'anarchie est un passage effrayant, mais nécessaire, et c'est le seul moment où l'on peut arriver à un nouvel ordre des choses. Ce n'est pas dans des temps de calme qu’on prendrait des mesures uniformes. (“Anarchy is a frightening but necessary passage, and the only moment when one can establish a new order of things. It is not in calm times that one can adopt uniform measures”.)
Paper: Constitution-Making and Violence
Pages: 25-54
Note: Reprinted from: Jon Elster; Constitution-Making and Violence, Journal of Legal Analysis 2012; 4 (1): 7–39, doi:10.1093/jla/las009, by permission of Oxford University Press on behalf of The John M. Olin Center for Law, Economics and Business at Harvard Law School. (c) The Author 2012. Published by Oxford University Press on behalf of The John M. Olin Center for Law, Economics and Business at Harvard Law School. This article is not included under the Creative Commons Attribution (CC BY) 2.0 License of this Journal. This article is distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0), which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited. For commercial use please email journals.permissions@oup.com.
Please visit: https://academic.oup.com/jla/article/4/1/7/839393.
Author: Kakhi Samkharadze
Abstract
The idea of the Constitutional Court is essentially linked to the constitutional control of the power of state authorities. In the Constitutional judicial history, one of the most important precedents (Marbury vs. Madison) happened in the United States constitutional justice, which was particularly regarding the crisis of power division between state authorities. Therefore, at the modern development stage of the constitutionalism, it is important to evaluate the role and significance of the Constitutional Court's competence regarding the competence disputes. It is also necessary to evaluate the European experience in this direction and important and interesting consequences for the constitutional control and constitutional justice within such authority. Consequently, within the framework of this key instrument of constitutional control, we should talk about the primacy of the law, within which the constitutionalism should be developed. This issue has a doctrinal importance and at the same time has a special significance for the development of Georgian constitutionalism. Derived from this, the major constitutional tool for exercising the principle of division of powers should be based on the legal argumentations of the Constitutional Court and it should not be a standard political constraint – a legal instrument prevailing the balancing tools, which of course cannot be exercised without political component, however, the final decision should be made in legal context instead of a political one, ensuring the fundamental and more or less objective basis for the realization of the principle of division of powers. We should also mention that Georgia has still to achieve the political consensus, necessary for constitutionalism and realization of division of powers principle. This is why it is necessary to discuss the particular relevance of the Constitutional Court and generally the law, in direction of the foundational realization of the idea of division of powers.
Paper: Primacy of Real Law of the Division of Powers Principle in Constitutional Adjudication
Pages: 55-70
Author: Givi Luashvili
Abstract
The purpose of the discussion in the present paper was to assess the dependence of the reform of the Constitution of Georgia regarding the Constitution Revision mechanism. The study revealed the main positive and negative trends that characterize the new mechanism for revising the basic act.
Within the scope of the research, the new method of revising the constitution was evaluated in the retrospective context, which led to the conclusion that the mechanism of revision of the constitution becomes more robust. The research assessed positive and negative sides of the Scandinavian model selected for the revision of the constitution and the conclusion indicated that the Scandinavian, quasi-referendum model may have a lot of negative characteristics, but as an expression of direct democracy and an important mechanism of stability was recognized as a positive step in the final assessment. Also, critical assessment was made on the revision and accelerated mechanism of adoption of the Constitution, which in fact opposed the existence of a Scandinavian model.
The paper discusses the attitude of the constitution revision mechanism to the constitutional control and the perspective of existence of entrenched clauses, which resulted in specific recommendations and tools for their implementation in the Constitution of Georgia. The paper also expresses the views on the better formation of several procedural issues in revising the constitution.
Finally, the constitutional reform of the 2017 regarding the constitutional revision should be assessed as a step forward, but it must be noted that there are important shortcomings in the existing mechanism and it is impossible to say that the mechanism of revision of the Constitution of Georgia is perfect and flawless.
Paper: The Mechanism for Revising The Constitution of Georgia And The Constitutional Reform of 2017
Pages: 71-90
Author: Shota Kobalia
Abstract
This paper examines the basic characteristics of centralized and decentralized constitutional review in the lens of a modern constitution and public power. Based on the “spontaneous order” doctrine and “framework originalism” - the type of constitutional interpretation, the opinion of Professor Stone Sweet regarding the strictly legal nature of the constitutional review in decentralized models has been criticized. Erga omnes effect that is characterizable to the centralized models and the monopoly on constitutional interpretation has been regarded, as institutes harmoniously complying with the semantic system stemming from modern constitutions. Decentralized models are represented, as an appeal to the fragile nature of legal systems and the transcendence from a set of characteristics of a modern constitution. The leitmotif of the paper is the idea that the independent assessment of constitutional review models is not relevant and the absence of destructive effects due to an existence of the social contract does not render the model perfect.
Pages: 91-100
Author: Giorgi Mirianashvili
Abstract
The paper reviews the decision of the European Court of Justice in the case of “Stefano Melloni v. Ministerio Fiscal”, where the absolute primacy of European Union Law over those of the member states was exercised. This decision has a significant influence on framing the equality and mutual dependence of the constitutions of the Union member states and the law of European Union. The paper claims that from the point of view of EU Law, in relation to the national law, including the constitutions, primacy is held not only by the European Union Acts, adopted supranationally, but, also, the so-called intergovernmental legal tools – Framework Decisions. The current paper shows that expanding cooperation and maintaining achieved results in the scope of European integration, are fundamentally reflected on the supremacy of constitutions of the member states and cause content modifications thereof.
Paper: Doctrine of Supremacy of the European Union Law over Member State’s Constitutions According to the Melloni Case (Case Review)
Pages: 101-106
Author: Constitutional Court of Georgia
Abstract
The Constitutional Court of Georgia has rendered several significant cases in 2018, which have influenced the constitutional adjudication and established new approaches. Below are case notes of seven important judgments adopted by the Court within the first part of the year depicting the content and argumentation of the cases.
Cases Provided:
Citizens of Georgia – Gucha Kvaratskhelia, Givi Tsintsadze, Giorgi Tavadze, Elizbar Javelidze and Others (17 Appellants) v. the Parliament of Georgia
Citizen of Georgia Tamar Tandashvili v. the Government of Georgia
Lepl “Evangelical-Baptist Church of Georgia” And Others v. the Parliament of Georgia
Ltd “Coca-Cola Bottlers Georgia”, Ltd “Castel Georgia”, Jsc “Healthy Water” v. the Parliament of Georgia And The Minister Of Finance Of Georgia
Citizen of Georgia Nana Parchukashvili v. the Minister of Justice of Georgia Special Penitentiary Service
Citizens of Georgia – Marine Mizandari, Giorgi Chitidze and Ana Jikuridze v. the Parliament of Georgia
Citizens of Georgia – Zurab Japaridze and Vakhtang Megrelishvili v. the Parliament of Georgia
Paper: Case Notes of the Constitutional Court of Georgia
Pages: 107-122