Volume 17 (2017): Issue 1 (June 2017)

Since the colonial period in Africa, ruling elites have manipulated laws regulating citizenship to advance their political and economic interests. The European colonialists used citizenship laws to enhance their ability to maintain control over the colonies and minimize the ability of Africans to fight for independence. Many Africans believed that independence and the establishment of new institutional arrangements would allow them to develop a common national citizenship, one in which all the citizens of each country would have equality before the law and be granted equal opportunity for self-actualization within all parts of the country, regardless of their racial or ethnic affiliation. However, in the post-independence period, incumbent political elites have been acting like their colonial counterparts and have used citizenship laws to get rid of critical and opposing voices by depriving these people of their nationality. In 1996, for example, Zambia’s ruling political party, the Movement for Multi-Party Democracy (MMD), adopted a new constitution, which effectively stripped the country’s independence president, Kenneth Kaunda, of his Zambian citizenship and prevented him from challenging the MMD for leadership of the country. Similarly, in 2000, then president of Côte d’Ivoire, Henri Konan Bédié, changed the constitution and introduced a citizenship clause that effectively disqualified the candidacy of his main opposition, Alassane Ouattara. South Africa’s apartheid regime, on the other hand, introduced a racially-based multilayered citizenship system in which individuals of European origin were placed at the top, enjoying full citizenship rights, and Africans were relegated to the bottom with extremely attenuated citizenship rights. Some African groups were actually forced to lose their South African citizenship. Citizenship is a complex issue and one that citizens of a country must deal with. The paper suggests that in doing so, African countries must not allow citizenship to be defined by race, ethnicity, religion, or other ascriptive traits, but by allegiance or fidelity to a set of values or ideals (e.g., democracy, rule of law, equality before the law) that define the nation.

Although the Organization of American States’ Inter-American human rights system has played a key role in the advancement of human rights, its work has recently become controversial. Some leftist governments have alleged bias, criticizing the system as a politicized one that prioritizes certain rights over others and embodies a neoliberal ideology that reflects disproportionate US influence. The system has also faced perceptions of cultural bias from Anglophone Caribbean states. This article tests the veracity of these allegations using statistical analysis of Inter-American Commission on Human Rights decisions. It finds that, even when controlling for a range of relevant factors, there have been significant differences in the Commission’s receptiveness to different types of claims of human rights violations. However, the Commission’s decisions have not exhibited any political or cultural biases. Also, to the extent there has been bias involving the United States, it has arguably been bias against the United States.

As the incidence and the cost of cybercrime keeps growing, the traditional legal model based on the command-and-control approach to regulation experiences major difficulties in curbing further inflation of the phenomenon. The article argues that the traditional legal approach that grounds its authority in enforcement is a poor option for regulation of online human interaction. By considering alternative avenues in influencing online behavior – community-, competition-, and design-based regulation – the article suggests reconsideration of our public policies and regulatory approaches to cybercrime. In doing so, the article offers a thorough interdisciplinary reflection on the idiosyncrasies of human interaction in network environments and its psychological implications, concluding that other regulatory powers may present more effective response to the problem of cybercrime. The holistic regulatory regime that the article advocates incorporates and coordinates all regulatory powers that exist in our societies in order to address the underlying cause of cybercrime.

Comparative law plays a role both at the time of the creation and interpretation of constitutions. Hungary is not an exception in this respect. The comparative analysis of Hungarian constitutional law is an ordinary one both in terms of quantity and quality. The new Fundamental Law of 2011 as well as the “two-third majority statutes”, however, led to an international scandal. Several studies have suggested that the method of acceptance of the new Fundamental Law and its content are unique in several aspects. The reviews of the Fundamental Law by scholars and international organizations show, however, contradictory opinions. We argue that such opposition is mainly due to differing conceptions of the ideal democratic society. Proponents of the Fundamental Law asserting national sovereignty and the supremacy of legislation accept any constitutional regulation that is backed by the necessary amount of votes. On the other hand, opponents have disliked everything that has happened in Hungarian constitutional law since 2010 on the premises of global constitutional values, the lack of consensus, self-restraint or elegance. The present paper aims to evaluate the Fundamental Law of Hungary through the lens of Joseph Raz’s seven constitutional criteria that might serve as a structured approach to analysis that is acceptable to those who express supportive as well as critical opinions on the Fundamental Law. Indeed, based upon Raz’s criteria we have come to the conclusion that the new constitutional regime does not meet one single criterion that is connected to its acceptance. As the Fundamental Law was accepted rapidly, without any endorsement by the opposing parties or any referendum, it cannot be demonstrated that it mediates general values accepted by the whole society.

The goal of this article is to critically evaluate, what role the impeachment plays in the U. S. Constitutional system and how it contributes to ensuring accountability of elected officials in the USA. To this end, the author will provide a short overview of the development of the institution of impeachment, discuss the current regulation of impeachment in the U. S. Constitution and the application of impeachment in practice, assessing its efficiency and role in the constitutional system. Finally, the conclusions will be reflected upon from the viewpoint of the Czech Constitutional system and its model of constitutional accountability.

“The rule of law is like the notion of ‘the good’. Everyone is for the good, although we hold different ideas about what the good is.” ¹ Two primary ways of viewing the Rule of Law have developed over the years: the “thick” theory of the Rule of Law advocates that, in addition to laws that are publicly promulgated, equally enforced, and independently adjudicated, participation in government decisions (democracy) and consistency with international human rights law are essential for the Rule of Law in a society; the “thin” theory of the Rule of Law asserts that democracy and consistency with human rights law, while nice, are not essential for the Rule of Law. While the Rule of Law is often talked about in the context of developing countries that are coming out of conflict, there is little talk about the Rule of Law and its application to countries such as the United States. The past two years have seen the Rule of Law in the United States threatened as it has never been before, with Senators refusing to do their constitutional duty, a President that threatens to disregard the rulings of the judiciary, and judges both politicizing and abdicating their role as the interpreters of the law. Using a definition of the “thin” theory of the Rule of Law formulated by Brian Tamanahan, I ultimately argue that it not only is, but should be the case that a product of the Rule of Law, stability, a combination of security and predictability, is one of the world’s most valued commodities; and that Rule of Law, rather than the Rule of Man, is and should always be the bedrock of the United States of America.

This paper discusses nationality of a person, whether physical or legal, and compares and contrasts the international legal regime which regulates the nationality of both persons. Whilst humans are granted nationality because they are citizens of a state to which they owe allegiance, in the case of a res which enjoy nationality – such as a ship – the relationship between such a res and its national state is based on a functional dimension. A ship oftentimes navigates in areas beyond state jurisdiction (such as on the high seas) ending up in a legal vacuum if she enjoys no nationality to regulate its behaviour and whatever happens on board that ship during its extra-territorial voyages. The authors thus discuss the juridical nature of nationality, nationality of a res and of humans, and reflect upon the recent sale by states of their nationality to non-citizens thereby shifting human nationality closer to the commodification of nationality of which ships are a traditional instance. It concludes that nationality of ships and of humans has in some legal systems moved away from the classical International Court of Justice’s Nottebohm case requirement of a pre-existing genuine link to one where nationality is reduced to a commodity.

The article examines the constitutional position of the president of republic in the view of the appointment procedure established in Hamiti et al and Derguti et al. Both constitutional court decisions have construed a rhetorical interpretation of the expected role of the president of republic as representative of the unity of the people in a constitutional nutshell. The article questions both decisions’ structural rationality and legitimacy in what is likely a tough political controversy requiring two-third majority for the appointment of the president of republic in the first two rounds. To better designate the logic upon which the court relied when ruling in the two decisions, the article considers relevant comparative literature and case-law to channel the analysis. The article concludes that though the court demonstrated a rather activist tone in interpreting the procedure for the appointment of the president of republic, it also showed quite unprecedented willingness to constitutionally empower the position of the president of republic on basis of appointment-related preconditions.

The article is focused on a serious dispute between the Supreme Court and the Constitutional Tribunal over interpretative verdicts in the Republic of Poland. This kind of decisions are issued by the Tribunal. Interpretative verdicts contain explanation (interpretation) of a statutory provision, which constitutionality is controlled by the Tribunal. The main problem is, if this kind of decisions bind other courts. Judges of the Tribunal Court claim that courts, including the Supreme Court, are suppose to obey interpretative verdicts. The judges of Supreme Court maintain that this kind of decisions only indicates one of possible interpretation of a statutory provision and courts don’t have to follow it. In the article the author describes this type of verdicts, their history and explains the essence of the dispute.

Main topic of this article is the comparison of the position of a judicial officer in the Czech Republic and in other European countries. First, it briefly presents the reasons why the institution of judicial officers has been (re)introduced to the Czech legal order. Further, it sums up the conception of the position of judicial officer in the Czech legal order, and with respect to actual critical reviews, it compares selected aspects of the conception of judicial officers in other European countries, with a special attention to so-called secondary activities of judicial officers and the issue of remuneration of judicial officers.

Should democracies punish hate speech? Eric Heinze, Professor of Law and Humanities at Queen Mary, University of London, has written an important new book on this subject, Hate Speech and Democratic Citizenship. At the center of Heinze’s book is a revolutionary idea: Instead of debating whether democracies per se can or cannot legitimately ban hate speech (which assumes all democracies are the same), we should only condemn hate speech as illegitimate in those democracies that are longstanding, stable and prosperous. In this essay, I show how Heinze’s idea frees the debate over hate speech regulation from the Europe vs. America dichotomy that has haunted it for years, while carrying a special poignancy for the United States in the age of Trump.