What’s New in Public Law

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—Mariana Avelar, PhD student at Universidade Federal de Minas Gerais and visiting researcher at Goethe Universität and Max Planck Institute for Comparative Public Law and International Law.

—Juan Sebastián López, researcher in international human rights law and constitutional law, former student at Universidad Externado de Colombia, and staff member of the International Society of Public Law.

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In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email iconnecteditors@gmail.com.

Developments in Constitutional Courts

1. The Constitutional Court of the Republic of Indonesia ruled that the minimum age requirement of 40 years old for presidential candidates is constitutional; however, those who have occupied or are currently occupying an office elected through a general election are not bound by this limitation.
2. The Constitutional Court of South Africa ruled that differential treatment between marriages ending by divorce and those ending by death unfairly affected spouses in “ANC marriages” with no legitimate justification.
3. The Federal Constitutional Court of Germany decided that some provisions of the Federal Climate Change Act of 12 December 2019 related to the climate targets of the country and annual emissions until 2023 were unconstitutional given that it imposed unreasonable obligations in relation to these climates post-2031 and those before the mentioned date lacked sufficient specificity.
4. The Supreme Court of India ruled that it could not define the validity of same-sex marriage arguing that a decision in that regard would amount to judicial legislation, and the power of judicial review must avoid matters that fall in the legislative domain. However, it held that queer couples, as well as all types of couples, are guaranteed the right to enter a union in accordance with Part III of the Constitution
5. Public authorities must provide free public transport on election day, as decided by the Brazilian Supreme Court.
6. When resolving a conflict of jurisdiction, the Superior Tribunal of Bogotá ruled that family court is the appropriate space to hear cases related to the custody of pets, given that multi-species families must be protected and that pets are able to meet the conditions to be considered a part of a family nucleus.

In the News

1. Disagreements Delay Efforts to Open Gaza Aid Corridor.
2. The political approximation of U.S. and Venezuela: the release of political prisoners and the lifting of some U.S. sanctions comes as Venezuela’s opposition prepares for the next presidential election in 2024.
3. EU’s cyber agency (ENISA) says that European Union’s 2024 election is at risk from the use of artificial intelligence applications such as chatbots and deep fake videos.
4. Poland election results: Opposition secures win, final count shows.
5. Alejandro Encinas, the chairman of the truth commission looking into the disappearance of 43 students in 2014 and the top human rights officer for the Mexican government, resigned on Thursday, leaving behind one of the biggest human rights crimes the nation has seen in recent memory as it remained unanswered.
6. Denial of water, fuel and electricity poses a deadly risk for children amidst the Israel-Gaza conflict.
7. The Constitutional Court of Colombia will be joined by a new justice elected by the Senate, in replacement of outgoing-justice Alejandro Linares.

New Scholarship

1. Auethavornpipat, Ruji: “Hate speech and discrimination as mundane violence against Rohingya refugees during COVID-19“. (The article pointed out that even in the absence of mass murders, hate speech and discrimination have similar effects on vulnerable communities by depriving them of their rights and means of subsistence).
2. Brems, Eva. “Misunderstanding the margin? The reception of the ECtHR’s margin of appreciation at the national level”. (explores the receiving end of the margin of appreciation doctrine of the European Court of Human Rights, and claims that there is an issue on the application of the margin of appreciation by domestic courts).
3. Chande, Anupam. “When the Digital Services Act Goes Global”. (explores the Brussels effect of DSA, arguing that non-democratic leaders could take advantage of the DSA’s various mechanisms to increase their control over information flow and, specifically, to target critics’ speech).
4. Edgar, Andrew; Stack, Kevin. “Parallel Incorporation and Public Law”. (Shines light on existing accountability deficits of administrations, particularly utilizing the United States and Australian experiences).
5. Fach, Katia. “Alternative Dispute Resolution Mechanisms and Transformative Constitutionalism in Latin America”. (This paper analyzes how informal justice mechanisms allow advancement in rule of law, participation, social inclusion, equality and overall, in the community-drive construction of a Ius Constitutionale Commune in Latin America).
6. Lorion, Sebastian; Murray, Rachel. “Interactions between National Human Rights Institutions and National Mechanisms for Implementation, Reporting and Follow-up: Research and Recommendations”. (This insightful study investigates the major changes in local human rights implementation that can be induced by the recent development of National Mechanisms for Implementation, Reporting and Follow-up).
7. Reiners, Nina. “States as bystanders of legal change: Alternative paths for the human rights to water and sanitation in international law” (the article explores how non-state actors foster legal change in human rights as a consequence of a states-as-bystander effect).
8. Tuchtfeld, Erik. Be Careful What You Wish For: The Problematic Desires of the European Court of Human Rights for Upload Filters in Content Moderation.  (exploring the problematic nuances of decisions that foster the employment of automated content filters by digital platforms as a “positive obligation for states to order platforms to generally monitor their systems for unlawful content published by third parties”).
9. von Bogdandy, Armin. “Transition 2.0. Re-establishing Constitutional Democracy in EU Member States”. (the book reunites different approaches to the transition 2.0 in a Realist, Structural, Principled and Inclusive Constitutional Manner in EU Member States where the process of constitutional regression has been occurring in the past years).

Calls for Papers and Announcements

1. The International Congress on the figure of the Head of State is currently accepting papers for the conference to be held from April 23 to 25, 2024. Amongst the main topics are the study of comparative forms of government, the crown and the constitution and historical and sociopolitical approaches to the role of parliamentary monarchies in contemporary societies.
2. The Indian Journal of Constitutional Law invites submissions for its twelfth issue, to be published in 2024. All submissions must be sent before November 30^th, 2023.
3. The Australian Journal of Human Rights [M1] [GU2] will publish a Special Issue in mid-2024 that examines whether and why accountability for human rights violations is in crisis. The Journal invites contributors to take a broad approach to the topics of accountability, impunity, and the protection of human rights, focusing not only on holding governments to account, but also on how we might think about accountability and impunity from the perspective of business, traditional and digital media, emerging technologies, civil society and rights holders. Submissions must be sent before
4. The Centre of Public Law is currently accepting papers for its ‘Public Law: Rights, Duties and Powers’ conference. The 2024 conference theme aims to facilitate a number of streams of inquiry while setting parameters that will enable meaningful dialogue both within and across those streams, inviting engagement with a range of topics related to the conceptual building blocks of public law systems, with a focus on rights, duties and powers.
5. The NSIL is holding its 45th Annual Conference on “International Law, Democracy and Unconstitutional Changes of Government in Africa” on Wednesday 15th to Thursday 16th November 2023. Abstracts must be sent until 25th of October.
6. Inter Gentes: the McGill Journal of International Law & Legal Pluralism Journal is currently welcoming thoughtful, argument-driven full length pieces from scholars, jurists, judges, professionals, and students. It accepts submissions on a rolling basis.

Elsewhere Online

1. Israel-Palestine flare-up and the web of disinformation in India, essay by Prachi Arya.
2. Is the era of the ‘WhatsApp judiciary’ here?, essay by Maitreya Subramaniam.
3. Yaniv Roznai gives some insight related to the recent election in Poland and how even when populists are voted out of office, their legacy might persist.
4. Angelo Golia poses relevant questions for a Comprehensive Research and Policy Agenda on Data Capital Tax within Digital Constitutionalism.
5. Stefano Angeleri reflects about the limits confronted by migrant regularization, the role of International Human Rights Law and constitutional advocacy in Colombia in his latest post “Migrant Health Rights in Colombia: What’s at Stake Beyond Justiciable Rights and Humanitarian Programmes?”.
6. In his most recent entry in EJIL:Talk! Alexander Lott delves into the implications of Jus ad Bellum, networks and pipelines and the limits beyond the Territorial Sea.