Journal of Constitutional Law - Vol.2, 2020
Issue date: November 2020
Merab Turava: Foreword
Author: Ruth Bader Ginsburg†, Deborah Jones Merritt
The Universal Declaration of Human Rights is one of the first international instruments urging states to take specific action to ensure equality. Throughout the years, Ruth Bader Ginsburg had been a leading activist for women’s rights and equality. The present article, - which is based on a lecture delivered by Justice Ginsburg in 1999 with respect to affirmative action, its international legal grounds, as well interesting practice on this matter in the USA, India and the European Union, - analyzes the problems existing by the end of the last century, and addresses relevant challenges and practical approaches.
Even though some progress has been made with respect to the right to equality and affirmative action throughout the last 20 years, equality between men and women has not yet been achieved. Currently, this topic is particularly relevant to the Georgian context, given that the country has implemented one of the strongest and arguably the most controversial affirmative actions – mechanism of quotas for ensuring political representation. The article provides an overview of practice regarding affirmative action aiming to eliminate gender-based discrimination, as well as discrimination on some other grounds.
This article emphasizes international legal grounds for affirmative action. Oftentimes, laws supposedly aiming to “protect” women do not appeal to them, but rather restrict competition for men. Accordingly, when assessing gender-based affirmative action, we should distinguish those genuinely aiming to remedy historical disadvantages from those that nourish myths and stereotypes, thereby preventing women from achieving their full potential.
Note: Reprinted with permission of the New York City Bar Association. Originally published in The Record of the Association of the Bar of the City of New York, vol. 54, No. 3, May/June 1999, pages 279-310. Reprinted by the Creative Commons License. This article is not included under the Creative Commons Attribution (CC BY) 2.0 License of this Journal. This is an Open Access article distributed under the terms of the Creative Commons Attribution-ShareAlike 4.0 (CC-BY-SA 4.0), which permits copy, distribute and transmit the publication as well as to remix and adapt it, provided that you appropriately attribute the publication, and that you distribute it under an identical licence. For more information visit the Creative Commons website:
Author: Cass R. Sunstein
Why and when does outrage grow? This essay, based on the 2018 LSE Behavioural Public Policy Lecture delivered in February 2018, explores two potential answers. The first points to a revision or weakening of social norms, which leads people to express outrage that they had previously suppressed. The second points to a revision or weakening of social norms, which leads people to express outrage that they had not previously felt (and may or may not now feel). The intensity of outrage is often a product of what is most salient. It is also a product of ‘normalization’; people compare apparently outrageous behavior to behavior falling into the same category in which it is observed, and do not compare it to other cases, which leads to predictable incoherence in judgments. These points bear on the #MeToo movement of 2017 and 2018 and the rise and fall (and rise again, and fall again) of discrimination on the basis of sex and race (and also religion and ethnicity).
Paper: Growing Outrage
Note: Reprinted with permission of the Cambridge University Press. Originally published in Behavioural Public Policy (2019), 3: 1. Reprinted by the Creative Commons License. This article is not included under the Creative Commons Attribution (CC BY) 2.0 License of this Journal. This is an Open Access article distributed under the terms of the Creative Commons Attribution-ShareAlike 4.0 (CC-BY-SA 4.0), which permits copy, distribute and transmit the publication as well as to remix and adapt it, provided that you appropriately attribute the publication, and that you distribute it under an identical licence. For more information visit the Creative Commons website: https://creativecommons.org/licenses/by-sa/4.0/.
Author: Giorgi Nakashidze
Over the last decades, the European Court of Human Rights had to deal with a large number of individual and interstate cases related to armed conflicts. Despite the fact that its original mandate was not designed for such type of cases, the ECtHR plays a significant role in enforcing the European Convention of Human Rights in armed conflict and, in certain cases, the international humanitarian law. The ECtHR’s increased involvement in armed conflict cases is urged by the lack of special enforcement judicial forum for IHL. Leaving aside the jurisdictional, mandate-related and conceptual legal questions arising from the ECtHR’s involvement in armed conflict, this article aims to demonstrate that the ECtHR is sufficiently equipped with adequate procedural infrastructure to ensure effective response to numerous applications alleging human rights violations occurred during an armed conflict.
Author: Givi Adamia
Article 6 (2) of the Constitution of Georgia recognises free competition as the basis of the economic order in the country. Defining the content of the constitutional clauses regarding economic competition and determining positive and negative obligations of the state deriving from the constitution usually give rise to significant practical and theoretical challenges.
Preceding paper aims to establish proper theoretical grounds to overcome abovementioned legal obstacles. Based on the best western experience and scientific approaches, it defines the scope of the state’s positive and negative obligations concerning free competition and competitive equality of undertakings. The paper also examines the teleological grounds of the constitutional provisions regarding free competition and its role in the process of assessment of the constitutionality of a legislative act related to economic competition. Moreover, the study discusses the functions of free competition with respect to freedom of enterprise and consumers’ rights, and it identifies the relevant legal values as well.
Author: Ana Jabauri
Due to the ECHR’s decision regarding the request for interim measures lodged by Armenia against Azerbaijan with respect to an armed conflict, the issue of giving international humanitarian law (IHL) relevance through the jurisprudence of regional human rights bodies has recently become relevant once again. Some European scholars have criticized the Court’s attempt to get involved in the case concerning the international armed conflict, deeming the related interim measures vague, ineffective and incompatible with the role of the Court. However, while focusing on the jurisprudence of Inter-American human rights bodies, this paper will try to remind the readers that the ECHR is not the only human rights body which had to deal with IHL. It will be demonstrated that the experience of these bodies is far more creative and diverse as compared to that of the ECHR.
It is not the aim of this paper to argue that decisions attempting to incorporate IHL will necessarily be complied with; nor does it intend to engage into theoretical mandate-related discussion on whether or not human rights bodies should dare dealing with IHL at all or not. Rather, it will review the jurisprudence of bodies of the Inter-American system of human rights, and suggest that, should other judicial or quasi-judicial bodies be willing to manifest the bravery of giving IHL relevance through their case-law, the IACHR and the IACtHR could be the bodies the example of which might be the one to follow.
Author: Vazha Datuashvili
2020 will certainly become a part of history of the mankind not just due as a healthcare crisis related to COVID-19 (novel Coronavirus), but also as vivid example of a more “coordinated action” of the “civilised nations”, the situation, the management and improvement of which became the reason for unity of the “international society”. However, despite such unity, even in the era of technological development like this one, the only relevant measure of combating the virus is the one from the century before.
Thus, the foregoing paper discusses the public-law aspects of the emergency caused by the pandemic on the basis of legal analysis of state policies. The goal of the paper is to vividly distinguish the power of information in the process of managing the pandemic and to demonstrate that censorship is used by the states for silencing the political opponents. Apart from demonstrating the problems, the paper aims at showing the ways, which the international society can use to face disinformation and unjustifiable involvement in media activity shackled by authoritarianism.
The main postulate of the paper is that in the era of technological development, gossip and conspiracy have no place and that the states shaping the current political agenda should treat the power of information and its impact on the wellbeing of the society with higher preservation.
Author: Constitutional Court of Georgia
In the Volume 2, 2020 the Journal of Constitutional Law continues to publish short summaries of the notable recent Judgments adopted by the Constitutional Court of Georgia. Two cases discussed below have been adopted in the second half of 2020 and both deal with complex issues, such as the constitutionality of the appointment of the Supreme Court Members in Georgia and the Gender Quota for the Parliament of Georgia. The controversiality is probably best demonstrated by the dissenting opinions, which are also summarised in the Case Notes. The Journal hopes both the majority and the dissenting opinions will be interesting for our readers worldwide and will support academic discussions regarding the case-law of the Constitutional Court of Georgia.
The Public Defender of Georgia v. The Parliament of Georgia (30 July 2020 Judgment №3/1/1459,1491)
N(N)LE Political Union of Citizens ‘New Political Center’, Herman Sabo, Zurab Girchi Japaridze and Ana Chikovani v. The Parliament of Georgia (25 September 2020 Judgment №3/3/1526)