Download Constitution Compared and more Lecture notes International Public Law in PDF only on Docsity!
State
“Sate” can mean several things. One possibility is to use “state” in the sense of “public authority”, as in “wages are determined by the free market or by the state” or “the state sometimes interferes with private life”. In that sense, “state” is often used synonymously with “the government” as opposed to the private realm.
- STATE AS IN SOVEREIGN COUNTRY. In that sense, a state is a socio-political entity with its own set of government institutions exercising control over its population and territory. This should correspond with the definition of a state under public international law.
- STATE AS IN FEDERAL ENTITY. In some countries that have a federal structure, the territory is made up of several sub-entities that are called States. We shall use capitalization to describe States in the sense of entities that form part of a federation.
Country
In formal speech, “country” is usually used synonymously with “states”, as in “France is a sovereign country”. When referring to sovereign countries we shall use the formal term “state”, and only occasionally refer to “country” to avoid ambiguities.
Nation
Another term that is sometimes used interchangeably with “state” is “nation”. Strictly speaking, a nation refers to an ethnic-cultural category. The “nation” can be a founding concept in a constitutional system, such as the source of all sovereign power. Equating “state” with “nation”, is a habit deriving historically form nationalist thinking, holding that every nation deserves to have its own state. Since virtually all states in the world are multi-ethnic, we shall avoid the term “nation”, and only occasionally use terms such as national capital , national anthem or nation-wide to prevent ambiguities.
Government
The term “government” is also a term that gives rise to ambiguities and translation problems in comparative constitutional discourse. We have three most important meanings:
- GOVERNMENT AS IN STATE ORDER. In that sense, government, or system of government, broadly refers to the entirety of the organs of public authority, including lawmakers, ministers and judges.
- GOVERNMENT AS IN EXECUTIVE. In that sense, the government comprises the head of government and a body of ministers, or “secretaries”, representing executive power as opposed to the parliament and the courts.
- GOVERNMENT AS IS GOVERNING MAJORITY. In parliamentary democracies, the political party or parties that have a majority in parliament can form the government. This means that they are entitled to compose the cabinet, but they can also be referred to as being the government, as opposed to the minority or parliamentary opposition.
Republic
The term “republic” is usually meant to denote a particular system of government.
- FIRSTY. A state that has adopted a republican form of government is one whose head of state is not a monarch.
CONSTITUTIONS COMPARED
- SECONDLY. Republic can refer to the name of a state which has a republican order, such as the French Republic, the Federal Republic of Germany, the Portuguese Republic or the Republic Cyprus. Not all republics bear the republican character of their constitution in their official name, though.
- THIRDLY. Republic can also refer to a period in a state’s history when a republican order prevailed, especially after the deposition of a monarch or before the establishment of a monarchy in the same system.
Monarchy
Even where a state is a monarchy, it needs to be governed by absolute one-man rule. Most European monarchies whereby the power of the monarch, such as a king/queen or grand duke, derive from, and is limited by, a constitution. Usually, monarchies the King or Queen holds office until abdication or death and is then succeeded by their heir. Monarchies can therefore in reality just as well live by “republican” values in a broader sense: democratic representation, rule by many with the consent of the governed, separation of powers, limited government and rule of law. Absolute monarchies or near-absolute autocracies are rare in the contemporary world. E.g. the Vatican in Europe. Nor do monarchies need to be hereditary; they can also be elective. In that case, a new monarch, rather than ascending the throne by a fixed line of succession, gets chosen by a body of electors. E.g the Vatican state is an elective monarchy, where the Pope gets elected by a college of cardinals.
Democracy
Often presented as a fundamental characteristic of Western constitutional systems, emphasizing governance by the people either directly or through elected representatives.
- INDIRECT DEMOCRACY : Citizens elect representatives to make decisions on their behalf.
- DIRECT DEMOCRACY : Citizens directly vote on specific issues or laws (e.g., Swiss referenda). Even within democracies, the application of democratic principles can differ widely (e.g., UK, Germany, France). The use of referenda varies significantly among countries, with the UK using them sparingly for specific issues (e.g., Brexit, Scottish independence). The EU operates under a unique democratic model, combining representative democracy with aspects of dual legitimacy, wherein both citizens and states are represented.
Overview
The current constitution of Us, The Netherlands, France and Germany can be viewed as
an expression of effort to replace an old order with a new one.
NOTE :
Republic is the opposite of monarchy, this is also the sense in which the constitutions of the US, France and Germany refer to “republicanism”: they safeguard this principle so as to bar the re-introduction of a monarchy. That a “revolutionary moment” may occur which does for all practical purposes change a republic into a monarchy and vice versa. Such a change may be unconstitutional under the rules of the former constitutional order, but still acquire legitimacy through acceptance by the people and/or the adoption of a new constitution.
A distinction can be made between popular sovereignty and national sovereignty. The difference is that the people are a concrete and real entity while the nation is a somewhat more abstract and philosophical notion that does not coincide with the current population.
POPULAR – the sovereign population can exercise its will through a referendum to
change the constitution
NATION – if the nation is the sovereign, then such possibility could, then a referendum
to change the constitution could be excluded, since the nation is an abstraction and is not able to act on its own. National sovereignty can only be exercised by the nation’s representatives, in the manner laid down in the constitution. The representatives of the nation could be the people, but do not be necessary.
Popular Vs State Sovereignty
The concept of sovereignty in a federal system can be a potential conflict due to the claim of individual states to continued sovereignty, or independence. In the US, the states gave life to the new Union, and without them, the Union would not exist. The term sovereignty sometimes appears as a remnant of the original autonomy and independence of individual states. Powers not delegated to the federal level are considered ‘sovereign' powers of the individual states. Modern reality has seen Union-friendly case law, consolidation of stable federal institutions, and the Union's victory over the Confederates in the Civil War. The German Basic Law of 1949 is clearer on the sovereignty point, as it explicitly based on the sovereignty of the German people. In the US, the civil war and Supreme Court case law denied the right of independence for individual states, and the German Constitutional Court ruled that there is no constitutional right of secession for the Länder. However, a right to independence or secession of part of a state’s territory may exist with the permission of that State, as seen in the Scottish independence referendum of 2014. Any new referendum or steps towards Scottish independence would require permission from the UK Parliament. In Catalonia, Spain, being a unitary state, sought independence contrary to the Spanish unitary constitution. No distinction exists between federal states Germany and the US and unitary states Spain and the UK.
Parliamentary Sovereignty
The United Kingdom's sovereignty is attributed to Parliament, also known as the King/Queen-in- Parliament, which adopts bills and receives royal assent from the monarch. This means legislative supremacy, or parliamentary supremacy, as the Acts of Parliament are the highest law in the land. No public authority can invalidate the Acts of Parliament, and only the King/Queen-in-Parliament can undo previous legislation. The term ‘sovereignty of Parliament' was coined by scholar Albert Dicey in 1885 to describe the founding principle of the UK constitutional system. Since the late 17th century, the monarch cannot legislate without parliamentary approval, and the King/Queen is bound by Parliament's will. UK constitutional law does not allocate sovereignty to the people, but rather, it is held by Parliament and the King/Queen acting together.
The Absence of Sovereignty
The Dutch Constitution does not address the issue of sovereignty, avoiding sectarian conflicts between republicans, royalists, and clericals. The Constitution contains no preamble ,
where sovereignty references would usually be found. The issue could have been clarified during the 1983 constitutional overhaul, but it was deliberately left unresolved. The rules governing the relationship between the monarch, parliament, and government are still largely defined by custom, not the constitutional text. The Netherlands operates as a democratic constitutional monarchy with a parliamentary system governed by the rule of law. The ultimate fundamental authority is the constitutional lawmaker, with the government and parliament in two readings and a two-thirds majority in the second reading.
Sovereignty and European Integration
The European Union (EU) is a complex legal system that has evolved over time, with its law now being part of the national laws of member states. This change has led to several approaches to understanding the EU's constitutional impact. One approach is to argue that the EU is a state, with member states as part of a larger federation, where federal law would override state law. However, this approach is too far as the EU comprises states but is not a state itself. Another approach is to argue that the EU is an international organization, based on international treaties like the Treaty on European Union and the Treaty on the Functioning of the European Union. The European Court of Justice has argued that if the EU left it up to member states to decide how to embed European law in the national legal order, the uniform Union-wide application of European law could be frustrated. This would depend on member states' decisions on whether to allow individuals to rely on European law in national courts and give European law precedence over national law. The EU's unique legal order allows EU law to generate direct effects in member states and supremacy over all conflicting national provisions. This unique legal system, combined with the possibility for the Council to act by qualified majority, creates unique characteristics that distinguish the EU from other countries. However, issues arise within member states regarding the sovereignty of a country and the supremacy of national law. These include the role of national lawmakers and judges in applying European law, the balance between European and national democracy, and the challenges of reconciling the two levels of democracy. The European Union (EU) only holds powers conferred upon by member states in a treaty ratified by all voluntarily and unanimously. This may be argued to include a specific 'Europe clause' in the national constitution, as it has domestic constitutional implications. However, even a Europe-friendly constitution can still be a supreme constitution. The key is to reconcile European claims to supremacy with national claims to sovereignty. Some authors argue that sovereignty exists if there is still the power to exit the EU, while others argue that sovereignty is a conglomerate of powers and when too many are transferred to an international organization like the EU, this violates the notion of sovereignty. The concept of 'core sovereignty', coined by the German Constitutional Court, has not been infringed by the transfer of powers under EU law. Another issue is the perceived absence of a full democratic underpinning of the EU and its policies. Authors argue that far-reaching globalization of Europeanization conflicts with notions of democracy and sovereignty and can only have a limited impact. The EU may even enhance the joint efforts of member states to put in place effective policies in a de facto globalized world. A study of European systems without taking full account of their EU membership would be incomplete. EU law has transformed national constitutional law and impacted the division of constitutional powers on the national level and the scope of those powers.
Parliamentary and Presidential Systems
In comparing government-parliament relations with different systems, a fundamental distinction can be drawn between parliamentary and presidential systems. A presidential system is defined by whether the head of the executive is elected with a mandate of In the US, both chambers of parliament, Congress, and the head of the executive, the President, each have their own mandate. The President owes his/her authority to being elected, and he is not accountable to Congress in the sense of a confidence rule. In parliamentary systems, the head of the executive is not directly elected but stays in the office because they enjoy the confidence or tolerance of the
participation of their regions in federal decision-making. Regional representation in the national capital is typically ensured via an upper chamber of bicameral parliament, while the lower chamber represents the population of the federation. The autonomous powers of the sub-units and their representation at the federal level are enshrined in the national written constitution, which ensures federalism is a fundamental and entrenched feature of the state. Involvement in federal constitutional amendment usually takes the form of two-chamber approval at the national level or ratification of amendments in the regions themselves. An independent arbiter resolves conflicts between the central authority and the sub-units over the scope of their powers, usually the judiciary, which has the responsibility of supervising the competences transferred to the federal entity and ensuring they are not extended to the detriment of the sub- entities.
Bicameralism
Many parliaments in the world are indeed bicameral, meaning that they are not a single assembly but comprise two assemblies, or chambers next to each other. The “lower” chamber is then usually directly and democratically elected, and it is the more important one politically and the more powerful one constitutionally. The “upper” chamber is then typically the additional chamber that complements the lower chamber. In federal systems, the upper chamber is typically used to represent the constituent parts of the state as such, in addition to the lower chamber which is elected in nation-wide elections. The European union’s legislatives institutions are modelled after federal bicameralism as well, where the European Council represents the individual member states. These institutions/chambers/senates are therefore an expression of federalism and federalism is their reason for being.
The legislative process
Lawmaking is a crucial task for parliament and its chambers, but the details of how this task can be exercised differ between systems. The powers that are particularly relevant to a parliament or chamber are:
**- The right of initiative
- The right of amendment
- The right of veto** The power of initiative may seem relatively trivial, yet without a proposal there can be no statue. The power of initiative may seem relatively trivial, yet without a proposal there can be no statue. Furthermore, the one who proposes statues is also the one who decides what is discussed and when. Veto power may seem a strong tool; the total rejection of a proposal is a heavy-handed measure if only slight changes to the proposal are desired. Veto power without the power to propose amendments means being confronted with take it or leave choices. Systems where both chambers of parliament are co-equal, especially where a bill requires the approval of both chambers to become law, are called perfect bicameralism. This means that the upper chamber has an absolute veto against the lower chamber because it can without its approval and thereby stop a bill. In most bicameral systems the upper chamber’s powers of initiative, amendment or veto are restricted. Usually, a veto from the upper chamber can be overruled by the lower chamber, so that the bill may become law even against the will of the upper chamber. E.g. the senates of the US and Australia, ensure that representativ es from the regional subdivisions, or senators NOTE:
- A veto that cannot be overruled is called an ABSOLUTE veto.
- A veto that merely delays the adoption of a law is called a
In cases of disagreement between the two chambers, a bill may either continue to go back and forth until there is an agreement, or the process may end after a certain number of readings. The requirements for a lower chamber to finally overrule the upper chamber differ between systems, too.
The Government and the Head of State
In a parliamentary system, the government takes an active role in the legislative process.
- FIRST. Almost all bills are drafted and tabled by the government.
- SECOND. The rejection of an important government bill in the parliament may lead to a cabinet crisis, since it means that the government cannot count on a loyal parliamentary majority. The head of state may participate in the legislative process, in that s/he signs the bills into law but in some systems might also refuse to sign them.
Right of initiative
As regards the introduction of bills, the presidential US system does not grant the President the right of initiative. S/he may communicate to Congress his/her wishes or may otherwise let his/her allies in Congress introduce bills for him/her. Usually, parliamentary systems simply accord the government with the right of initiative. The passage of a bill may at times be explicitly made matter of parliamentary confidence in the government. This is a means to discipline the government parties and to “blackmail” parliament into approving bill, for otherwise a cabinet crisis would be triggered, possibly followed by early elections. The US President has explicit veto power, but it can be overruled by Congress's super-majorities. Deadlocks can occur if opposition doesn't have the necessary majority, especially when the President vetoes the annual budget. In the EU, no other veto powers exist, but the Commission can advise on amendments, and the Council can only adopt them with consensus when the Commission advises negatively.
Separation of powers
The terms legislative and executive are rooted in the principle of separation of powers, which is a fundamental principle of Western constitutional legal tradition. It aims to prevent abuse of powers and absolute powers from being in the hands of one person or institution. The United States has a clear system of separation of powers, with federal legislative power exercised by Congress, executive power by the President and his subordinates, and judicial power by the Supreme Court and all inferior federal courts. However, this does not mean that the three branches operate in total isolation from each other. Separation is complemented by a system of checks and balances between the branches to ensure no single branch accumulates too much power for itself. In France, the separation des pouvoirs means judges must be kept separate from lawmaking and apply the law without questioning its constitutionality. The 2008 reform that allowed the two highest courts to refer questions regarding the constitutionality of statutes to the Constitutional Council is remarkable. In Western parliamentary democracies, the line can easily blur, as the government plays a leading role in the legislative process, drafting and introducing new bills with the help of its civil service Parliament usually debates, approves, and legitimizes legislation, so that in practice it does not actually make new laws itself. In some constitutional monarchies, where the King/Queen's government and the elected parliament operate side by side, the notion of 'legislature' is used together. In the Netherlands and Belgium, legislative power is exercised by the government and the parliament jointly, with the King/Queen's signature
concluded either by the head of state or on their behalf. Internally, heads of state serve an integrative function in society as 'figureheads', representing continuity and national unity.
Head of state and heads of government
Republics that replace monarchies typically do not abolish the division between head of state and head of government. Instead, the office of prime minister would remain as head of government, while the monarch would be replaced by a republican head of state, typically a president. This is common in countries like the French Second Republic, the German Weimar Republic, the First Austrian Republic, Italy, and newly independent states establishing a democratic republican order. In some systems, the president is elected to be both head of state and head of government, while the prime minister would be head of government. The head of state would formally appoint and dismiss ministers, but they have limited choice in whom to appoint and merely gives their ceremonial blessing to choices made by others. In China, the power to appoint the prime minister and ministers belongs to the National People's Congress, albeit upon nomination by the president. Not all systems actually separate the offices of head of state and head of government. In presidential systems, such as the United States and most Latin American countries, the President is elected to be both head of state and head of government. South Africa equally unites the functions of the head of state and the head of government in one office, namely the President, only here the President is elected and dismissed by parliament like a prime minister. From a European perspective, the US has a president who is also head of the government while South Africa has a prime minister who also functions as a president (and who is called president, too). Some systems do not attribute the function of head of state to a single person but to a collective body. For example, the former Soviet Union had the head of government technically being the chairman of the council of ministers, but since the Stalinist period, real executive power lay in the hands of the secretary-general of the central committee of the communist party. The figurehead functions of a head of state were exercised by the chairman of the presidium of the Supreme Soviet, a legislative assembly. In the present-day Islamic Republic of Iran, head-of- state functions and executive functions are carried out by both the President and the Supreme Leader, the highest cleric, who ranks above the President. The office of prime minister also existed in Iran, separately from the President and the Supreme Leader, until it was abolished in
- The European Union features several presidencies, with the President of the European Commission presiding over a mostly executive apparatus. Since 2009, the European Council is presided over by a permanent President serving terms of two and a half years. With the increase in importance of the European Council, its President's role has also grown. In some contexts, the EU has five presidents: the President of the Commission, the President of the European Council, the President of the European Parliament, the President of the European Central Bank, and the President of the Eurogroup. Arguably, the EU has a collective head of state, with the European Council as its paramount permanent institution, as it is set up to steer the main policies of the EU and is composed of the heads of state/heads of government of the member states.
The Rank of the Prime Minister
The constitutional position of the prime minister in a parliamentary monarchy is more subtle than in a republic. In the United Kingdom and the Netherlands, prime ministers are considered the first among equals, as per constitutional doctrine. The post is almost completely conventional, with the Dutch Constitution explicitly mentioning the prime minister since the middle of the 18th century. Prime ministers are not technically head of government but head of the cabinet, and Sweden is exceptional in not granting notional government chairmanship to the
King/Queen. Prime ministers are referred to as 'heads of government' in everyday speech, as they steer government business and establish the course for other ministers. The European Council, a supreme body of the European Union, brings together heads of state and government of EU member states. The Dutch Prime Minister attends European Council meetings, but technically is not head of government or in a clearly superior position. The monarch in a parliamentary monarchy is constitutionally entitled to speak of ‘my Government' when ceremonially addressing their parliaments to outline government policy. The prime minister receives their appointment from the head of state, but their involvement in government policy typically does not extend beyond that. The prime minister's steering function within the cabinet is more clearly expressed if they are actively and individually elected by parliament to be head of government.
Judicial Review and Court Systems
Judicial review is a court's power to examine legal decisions or norms and check their compatibility with a higher norm. It can be used to test whether regional laws are in harmony with national laws, check whether administrative decisions by public authorities comply with general legislation or examine the validity of national statutes by setting them against the national constitution. Judicial review can also be used to review the constitutionality of political parties, the compatibility of national law with general principles of law, or international treaties. There are three main subjects of judicial review: constitutional review of legislation, review of legislation for treaty compliance, and review of legislation for compliance with the law of the European Union. Court systems are essential for understanding case law and the place for constitutional review in different constitutional systems. Judicial review of administrative decisions or actions is not discussed in this book. This refers to the possibility for individuals or legal people to challenge the legality of actions, omissions, or decisions by administrative organs, other than the legislature and regulations made by administrative organs. Courts assess the legality of these acts based on non-compliance with legal norms or violation of general principles. Some countries leave it to general courts to deal with public law issues, while others have specialized administrative courts. Judicial protection for citizens against administrative decision-making exists as a tool to implement the rule of law aspects of holding executive organs to legal standards and enabling citizens to access courts to enforce the legality of administrative decision-making and protect their legal interests.
Review of Treaty Law Compliance
Judicial review, a subject related to constitutionality, is a crucial aspect of statutes with international treaty provisions. Judges test legislation for its compatibility with a higher norm, and the question arises whether treaty law is truly higher in rank and its consequences. International treaty provisions are particularly relevant when derived from them in a domestic setting, as seen in the European Convention on Human Rights. The domestic effect of states on treaty provisions depends on whether they adhere to a monist or dualist model. In older monarchies, foreign policy was considered a prerogative and exclusive power of the monarch and executive. This involved the appointment of diplomats, reception of foreign diplomats, negotiation and conclusion of agreements, and commanding the military. In modern democracies, many aspects of these aspects have been brought under parliamentary jurisdiction or participation and scrutiny. Parliaments may also be involved in approving the final text of a treaty before the executive may ratify it. The rules for the appointment of diplomats, the conclusion and approval prior to ratification of treaties, and declarations of war and military actions abroad differ substantially between states and belong to national constitutional law.
