Since the 1951 Convention on refugees, the right not to be returned to a country where one is at risk of prosecution is recognised as one of the few principles that international law imposes on States‘ discretionary power. An extensive international literature has focused on the ways in which states have tried to circumvent this...
The diversification of concepts in antidiscrimination law: the case of discrimination “by association“ in front of ECJ and ECtHR
The concept of discrimination has substantially evolved since its first applications in the second part of the 20th century. Indeed, while internal law and international conventions only targeted discrimination grasped as rules causing a disadvantage towards a person or a group on the basis of an illegitimate criteria, new distinctions have emerged. The recent introduction...
The Democratic Resilience of the Canadian Constitution
We advance three categories of institutional explanations for the resilience of Canadian constitutional democracy. First, we show that Canada‘s choice to chart its own unique course in the debate pitting presidentialism and parliamentarism has borne the fruits of democracy. Second, we demonstrate that Canada‘s robust “democracy branch“ has been both a source and driver of...
The Changing Case for Personal Tax Liability in Japan
Tax liability of Japan‘s income tax has been based both on a taxpayer‘s residence and on the source of income. A resident in Japan is liable to the tax on his worldwide income. In our local income tax, the tax liability is exclusively based on one‘s residence. However, residence-based taxation has been under attack lately....
The Chinese Conception of Cyber Sovereignty and its Practical Effect
This paper will unpack the conception of “cyber sovereignty“ put forward by the Chinese authorities from both ideational and institutional perspectives. It will first trace out the evolution of Chinese authorities‘ understandings of the Internet in the past 20 years and put the recent conception of “cyber sovereignty“ in the historical context. Then it will...
The Politics of a Contronymic Secularism in Fiji
During Fiji‘s 2012 constitution-drafting process, the Christian State debate repeated as a site of public division. Whereas the constitution commission, the military regime, liberal Christians and Hindu and Muslim Indo-Fijians argued a secular state was necessary to secure political equality and freedom to all Fiji‘s citizens, many indigenous iTaukei demanded the establishment of Christianity as...
The populist challenge to the separation of powers
Constitutionalism is in a state of flux. The concepts, structures and certainties on which the modern constitutional imagination is founded are under strain. From Poland to the United States, Latin America to Brexit Britain, there is evidence of political, social and institutional developments that challenge core tenets of constitutional government: of a loss of public...
The Platonic Conception of Constitutional Rights
In this paper I present a constitutional interpretative theory, which I term the “Platonic Conception of the Constitution“, and apply it to Israeli constitutionalism. According to this conception the constitutional text is only an approximation – an imperfect shadow – of the ideal constitution. Judges should strive to bridge the gap between the written and...
The Place of Liberty: Staying the Sentence of Imprisonment in a Comparative Constitutional Perspective
When an individual charged with a criminal offense is convicted and sentenced to imprisonment, the question arises as to whether the higher courts exercising judicial review should stay the sentence until the result of such a review is determined. The question is particularly interesting in the context of that group of cases in which the...
The paradoxical regulation of mass surveillance in Britain, 2013-2016
After the Snowden revelations, Britain’s Investigatory Powers Tribunal (IPT), an administrative panel dealing with illegal interception of communication, heard a series of complaints from NGOs. The Tribunal sat in public, treating the complaints as hypothetical scenarios: so-called ‘assumed facts’. The assumed facts enabled legal argument to proceed while protecting government secrecy. It determined in two...