As a reaction to terrorist attacks in Paris, EU institutions adopted a directive that in some respect tightened the gun control rules. Using the prevailing eurosceptic mood of citizens and (unexistent) threat of Muslim immigration, opponents of the directive started to fight its implementation in Czechia. Their efforts started to be supported by the government which invented “a solution”: basically an introduction of the right to bear arms through an amendment to Constitutional Law on Czech Security. It claimed the amendment would become part of Czech national identity and thus derogates the directive. Even if EU law and constitutional law experts pointed to total legal irrationality of the argument, the amendment was moving through the legislative process. My contribution will trace the process, using data from numerous interviews and internal governmental databases. It will show how constitutional deliberation could be abused by lobbyists and politicians in order to fight EU law.
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The Royal Prerogative and Legal Constraints on the Use of Force: Brining Canada Into Line
This article provides a comparative analysis of the constitutional constraints on Canadian government decisions to use military force, and makes theoretical and normative arguments for change. It examines how, in contrast to a trend among constitutional democracies, the executive power in Canada has particularly unfettered discretion to engage in armed conflict under the Royal Prerogative. This article, grounded in theories on deliberative democracy, the democratic peace, and the constitutional incorporation of international law principles, argues against such an expansive executive role. It advances reasons for narrowing the Royal Prerogative, with the development of a greater parliamentary role in the decision-making process, the establishment of clear and increased constitutional limits on the conditions under which the government may engage in armed conflict, and thus narrow grounds for potential judicial review of decisions that depart from the process.
Rule of Law and Democratic Legitimacy: Legislative Engagement in National Security
There is a common refrain, in US and UK legal writing, that an assertive exercise of judicial power particularly in matters of national security jeopardizes established institutional arrangements, most especially democratic accountability. When courts take the reins, the legislature loses the incentive to act and provide political/democratic checks on executive power. As the division between the national and the international becomes increasingly complex there is greater strain on the institutional public law principles underpinning judicial and legislative authority—in this case the values of articulated governance and that of democratic legitimacy. In this paper I ask two distinct but related questions. Can judicial review prompt legislative engagement? And, what can the theory underlying the doctrine of the separation of powers tell us about what legitimate judicial and legislative action looks like in this arena?
National Security and Human Rights in the Courtroom
Does Australian law provide any tangible protection for human rights in the context of national security cases? For better or worse, human rights and national security are often portrayed as two social aims locked in an inevitable tug-of-war. In Australian courtrooms, basic rights to procedural fairness, legal counsel, proportionate punishment and so on have been directly undermined by national security legislation. This paper argues that, despite the efforts of many judges, the Australian justice system is ill-equipped to protect human rights from a direct assault justified on national security grounds – even within it’s heartland, the courtroom. Is this simply the price of preventing terrorism, or is there a better way?
National Security Concerns in Trade Disputes: An Analysis of Art. XXI (b) (iii) GATT
The paper elaborates on a legal issue of the GATT which has remained essentially unsolved so far: the security exceptions of Art. XXI (b) (iii) GATT and its potentially abusive application in trade-related conflicts between WTO Members. The invocation of Art. XXI (b) (iii) GATT regularly results from political reluctance to international cooperation and is considered an appropriate means for an effective response strategy due to a purportedly limited standard of review for a panel or the Appellate Body. The paper addresses the current dispute between Qatar and the United Arab Emirates (UAE) before the WTO DSB, dealing with economic sanctions and their intended justification under Art. XXI (b) (iii) GATT, in order to assess the provision's understanding of “security” and the limitations of its assertion.
Limited “Spheres” vs. Limited “Capacities”: Judicial Institutional Identity in Emergency and Security Cases
What is the institutional role of judges in deciding emergency and security cases? In this paper I distinguish between two types of claims made by judges about their limited role on such matters. One is a classic separation of powers account that justifies deference to government by demarcating “spheres” for judicial, executive and legislative supremacy. This type of argument often masks both an expansion and an abdication of judicial jurisdiction. The second approach envisions a more democratic institutional landscape – a shared and open terrain of “limited capacity”. Here judges see themselves as limited not because they are spatially confined but because the constitutional system operates in such cases under the general assumption of uncertainty. When judges operate under such assumption, I claim, they may acknowledge and support the creation of more democratically diverse institutional tools to ensure both accountability and efficiency in responding to security threats.