Gun Control, Security, National Identity: The Story of Fighting EU Law by Introducing “Right to Bear Arms“ into Czech Constitutional Order
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...
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....
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...
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...
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 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....