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—Eman Muhammad Rashwan, Ph.D. Candidate in the European Doctorate in Law & Economics (EDLE), Hamburg University, Germany; Assistant Lecturer of Public Law, Cairo University, Egypt.
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 email@example.com.
Developments in Constitutional Courts
The U.S. Supreme Court denied review to Boardman v. Inslee, a challenge to a Washington state law that shields the personal information of in-home care providers from public disclosure but allows the state to provide that data to the union that represents the providers.
The U.S. Supreme Court declined review in Ortiz-Diaz v. United States, a challenge to Congress’ authority to criminalize cockfighting in Puerto Rico.
The Plurinational Constitutional Court of Bolivia ruled that the swearing in of Jeanine Áñez as President following the departure from office by Evo Morales was unconstitutional.
The President of the European Court of Human Rights (ECtHR) appointed Ledi Bianku, an Albanian judge who has served at the ECtHR, to the Constitutional Court of Bosnia and Herzegovina due to disagreement between the appointing actors in the jurisdiction
U.S. Supreme Court Justice Sonia Sotomayor stated that changes to the structure of the supreme court’s oral arguments have been made, in part, due research finding that female justices were more prone to being interrupted by male justices and attorneys.
In the News
Main political parties in Spain agree on renewing Constitutional Court judges.
A controversial ruling by Poland’s Constitutional Court on the relationship between Polish and EU law was published in the Official Gazette on Tuesday, meaning it is now legally binding. The court had ruled that elements of EU law violate the Polish Constitution, thereby giving national law precedence over EU law.
The UN special envoy for the war-ravaged nation told the Security Council on Tuesday that talks on drafting a constitution for Syria will reconvene on October 18, 2021, in Geneva.
The Egyptian Initiative for Personal Rights addressed an official letter to the President to request the Constitutional Court to interpret the legal clauses regulating the periods of pre-trial detention.
On Monday, Tunisia’s President Qais Saied unveiled a new government with its Prime Minister Naglaa Bouden, the first female PM in the modern Arab World. Saied gave no hint, though, when he would relinquish his near-total control after seizing most powers in July this year.
For the first time in its history, the Egyptian State Council appoints 98 female judges among its members in different judicial levels upon earlier instructions of the President.
Richard Albert, David Landau, Pietro Faraguna, and Šimon Drugda, I·CONnect-Clough Center 2020 Global Review of Constitutional Law (2021) (assembling detailed but relatively brief reports on constitutional developments and cases in 63 jurisdictions during the past calendar year authored by scholars, judges, and constitutional experts)
Richard Schragger, The City in the Future of Federalism, in Cities in Federal Constitutional Theory (Forthcoming 2022) (First, considering the mismatch between cities’ increasing economic, political, and sociological importance and their relative lack of status in constitutional theory. Second, discussing the use and definition of the term “city.” And third, considering the various ways institutional designers might go about empowering the city)
Eman M. Rashwan, The Price of Transitional Justice: A Cost‐Benefit Analysis of its Mechanisms in Post‐Revolution Phase, University of Bologna Law Review, Vol. 6, No. 1 (2021) (providing a cost-benefit analysis of the United Nations’ five mechanisms for nations to recover from conflict, applying these guidelines to democratic transitions after revolutions over autocratic regimes. The study suggests that TJ policies that take into account proportionality, a combination of different mechanisms, customization of the mechanisms upon the relevant case, and adopting these policies in the formality of basic or organic laws may be expected to have the most effective outcomes achieving the goals of TJ with the least legal complications)
David S. Schwarz, The Committee of Style and the Federalist Constitution, Buffalo Law Review Vol. 70 (Forthcoming, 2022) (arguing that the Style doctrine is historically unfounded and obscuring the Constitution’s original meaning. Ultimately, the Style doctrine is an artifact of post-ratification developments tending to disregard elements of the more nationalistic constitutional vision of the Federalist Framers)
Tonja Jacobi, Zoe Robinson, and Patrick Leslie, Comparative Exceptionalism? Strategy and Ideology in the High Court of Australia, The American Journal of Comparative Law (forthcoming 2021) (providing a rare comprehensive empirical assessment of oral argument outside the United States. Drawing on a novel dataset over 26 years (1995–2019), comprising nearly 1 million speech episodes at oral argument in Australia’s apex court, the High Court of Australia, the authors compare patterns of judicial behavior found in the U.S. Supreme Court to a comparable Western liberal democracy with a long tradition of judicial independence)
Aymen Briki, Saied Grab of Power Between Popular Sovereignty and Constitutional Legitimacy: A Déjà-vu Tunisian Legitimization Dilemma, Journal of Middle Eastern Politics & Policy (2021) (Explaining the power struggle in Tunisia in the light of the latest constitutional crisis of July 25. The author first argues that the alliance between the Tunisian and French constitutionalism traps the Tunisian transition in the black hole of the French constitutional history, which threatens the country’s future. Second, he presents an analysis of the legitimization dilemma in the Tunisian constitutional history, pioneering the concept of Lāhu-Lāhu Legitimacy. He concludes with policy recommendations to overcome the current deadlock)
Calls for Papers and Announcements
Centre for Constitutional Studies at the University of Alberta, Faculty of Law is holding an online webinar under the title “Language Rights’ Real Most Valuable Player – section 23 & Minority-Language Education” guesting Stéphanie Chouinard (Associate Professor, Queen’s U and Royal Military College) on October 19, 2021. Registration is open here.
Thomas Perroud, Jean-Bernard Auby, and Paul Lignieres launched “Chemins Publics,” a blog that aims to provide elements of “decoding” and legal translation of political, economic, and social events with a significant effect on public action. It focuses on public law, be it national, European, global, or compared. The subjects it covers are organized around nine themes: Climate change/health crisis, Commons, Competition and public good, Governance & Democracy, The private (as a vector of the common good), European construction, Digital, Public ethics, Cities. Instructions for submissions are provided here.
The ConstituGent and the Human Rights Centre (Ghent University) are pleased to announce an expert seminar on “intensity of review in public law” to be held on April 29, 2022, in Ghent. The deadline to submit abstracts is November 30, 2021.
The Ludwig Boltzmann Institute of Fundamental and Human Rights, Vienna, Austria, announces a full-time researcher/project manager vacancy (m/f/d) in the Programme Line “Human Dignity and Public Security.” The deadline for applications is November 7, 2021. All interested persons are requested to send their CV and a motivation letter to: firstname.lastname@example.org.
The Faculty of Law of the National University of Singapore (NUS Law) invites applications for Post-Doctoral Fellowship positions commencing in the academic year 2022-2023.
The Faculty of Law at the University of Helsinki invites applications for the position of Professor/Associate Professor/Assistant Professor of international law. The closing date for applications is November 7, 2021.
The International Studies Association (ISA) Innovative Pedagogy Planning Committee invites submission for its 2022 conference, which will be held in conjunction with the Annual Convention on March 29, 2022, in Nashville, TN, the U.S.
[Editor’s Note: I-CONnect is pleased to feature a five-part symposium on the recent decision by the Polish Constitutional Tribunal on the primacy of EU law. This is the fifth entry of the symposium, which was kindly organized by Antonia Baraggia and Giada Ragone. Their introduction is available here].
The decision of the captured Polish Constitutional Tribunal (the CT) of 7 October 2021 concerning the interpretation of the EU Treaty law abounds in instant reactions by experts in the field, many of whom speak of the actual or incoming ‘legal Polexit.’ Instead of analysing in detail the circumstances, content and possible outcome of the case, this contribution aims at a self-reflective critique of the academic invoking, or in fact evoking, of the ‘exit option’. In this regard, I shall criticize scholarly reading of the recent decision as an element of the ‘legal Polexit’, as well as scholarly reinforcements of the idea of Polexit in the public discourse.
I argue that a threefold academic ambivalence accompanies not only the recent decision, but also more broadly the Polish ‘rule of law backsliding’ and the potential Polexit. First, we can identify contradiction and indecision at the level of the scholarly interpretation of constitutional law. Second, ambivalence also concerns our vision of legal expertise and its impact. The third and most general level of ambivalence comprises the responsibility of jurists for the survival of the European Union in the context of its actual aims. I will discuss these three levels after a brief summary of the decision’s sentence (while the decision’s written motives remain unpublished to date), which has so far sparked a lot of misinterpretations.
[Editor’s Note: I-CONnect is pleased to feature a five-part symposium on the recent decision by the Polish Constitutional Tribunal on the primacy of EU law. This is the fourth entry of the symposium, which was kindly organized by Antonia Baraggia and Giada Ragone. Their introduction is available here].
Breath in, breath out. Yes, the judgment of the (unlawfully composed) Polish Constitutional Tribunal is a serious challenge to the European Union’s legal system and to the principle of primacy of EU law. No, Poland has not activated the process of withdrawal from the EU under Article 50 TEU. Yes, EU institutions will need to take robust action in response to the ruling. No, this will not be the end of the EU as we know it, nor of Poland’s membership in the EU project. Let’s take another deep breath and briefly reflect on these main points in the next paragraphs.
On why this is serious
Of course, the judgment of the Tribunal is not the first instance in which a constitutional or supreme court rejects the version of EU law primacy affirmed by the CJEU: many other courts in Europe have also qualified the impact and application of the principle of primacy in their domestic constitutional orders, and the Polish Constitutional Tribunal itself, well before becoming a ‘captured court’ in the hands of the political actors, had already established (significant) limits to primacy in its 2005 ruling on EU accession. And of course, the Tribunal was not either the first court to explicitly reject the authority of the Court of Justice and disobey a ruling of the latter: the Czech Constitutional Court in Landtova, the Danish Supreme Court in Ajos, and most famously and most recently, the German Bundesverfassungsgericht in the PSPP/Weiss case have done so in the past.
[Editor’s Note: I-CONnect is pleased to feature a five-part symposium on the recent decision by the Polish Constitutional Tribunal on the primacy of EU law. This is the third entry of the symposium, which was kindly organized by Antonia Baraggia and Giada Ragone. Their introduction is available here].
On Thursday, 7 October 2021, the Polish Constitutional Tribunal, which is politically captured by the governing parties and can no longer be considered independent, issued a judgment holding certain interpretations of core articles of the Treaty on European Union to violate the Polish constitution. At the core of the judgment lies an assertion of the supremacy of the Polish constitution and the declaration of the CJEU’s recent rule of law jurisprudence as in violation of that constitution.
In this blogpost, I will argue that this judgment clearly turns its back on the ‘constitutional pluralism’ the Polish government claims to be engaged in. Rather than constitutional pluralism, this judgment is an expression of constitutional solipsism. It abuses constitutional pluralism and its conceptual arsenal as a means of disengaging from, rather than engaging with, the EU constitutional order. I will then consider the implications of the judgment for constitutional pluralism and address its critiques, which have rekindled in the light of the judgment. While the judgment shows that the past idealisations of constitutional pluralism no longer hold, the disordered reality that constitutional pluralism tries to make sense of is likely to persist and will continue to have to be dealt with.
[Editor’s Note: I-CONnect is pleased to feature a five-part symposium on the recent decision by the Polish Constitutional Tribunal on the primacy of EU law. This is the second entry of the symposium, which was kindly organized by Antonia Baraggia and Giada Ragone. Their introduction is available here].
More than thirty years ago, in 1989, when Poles decided to start the democratic transition, a nationwide wish emerged to make friends with Western European countries. The wish was based not only on economic grounds, but also on a longing for being part of a community of values such as democracy, the rule of law and protection of human rights. The wish first materialized itself in 1991 as membership of the Council of Europe. Then, in 1994, Poland sent a request to the EU to become a friend of countries sharing the same values. On the basis of the 1997 Constitution, with a democratic state ruled by law clause and human rights protection, Poland showed honest intentions. The request was accepted in 2004.
Since then, the friendship had flourished. The Constitutional Tribunal (CT, Tribunal), up until 2021, decided on the EU and domestic law related cases just a couple of times. Still, in each of them, it established and upheld that friendship. The EU ‘friendly interpretation’ was recognized by the CT in 2005 in the case of the accession Treaty (K 18/04) and applied the same year in the case of EAW (P 1/05). Poland chose to amend its Constitution when the outcome of the EU friendly interpretation led to the conclusion that the EAW as a legal institution was not conformed with the Polish Constitution. Another example of friendliness is connected with the EU citizenship. Again in 2005, norms of the Constitution on active electoral rights were enriched by allocation of the rights to the EU citizens based on the EU law (K 15/04). As a result of the CT decision, that applied the EU friendly interpretation, amendments to the Constitution were not necessary. In 2010, applying the constitutional pacta sunt servanda rule and noticing the particular procedure of the Lisbon Treaty ratification in a referendum, the CT recognized the unique position of the Treaty, based on the highest standard of presumption of conformity with the Constitution (K 32/09). According to the CT, those questioning the Treaty’s conformity with the Constitution should justify a motion with close attention. As long as the motion is not justified, the CT decides that the Treaty conforms with the Constitution and it is thus safeguarded by the presumption. Finally, in 2011, the CT found its competence to check whether secondary EU law is in conformity with the Constitution within constitutional complaint procedure and established the rules for dealing with the non-conformity situation to safeguard? the Constitution and the EU law (SK 45/09). Almost everybody thought that the EU-Polish friendship would never be threatened.
[Editor’s Note: I-CONnect is pleased to feature a symposium on the recent decision by the Polish Constitutional Tribunal on the primacy of EU law. This introduction will be followed by four posts exploring different aspects of the decision and its impact.]
On October 7, 2021 the captured Polish Constitutional Tribunal (CT) made an unprecedented move in the long-lasting arm-wrestling between Poland and the EU: it openly challenged the primacy of EU law and its interpretation by the Court of Justice of the European Union.
As is well-known, since 2015, the Polish government has been repeatedly warned by the EU that the reforms of the judiciary implemented in Poland jeopardize the principles descending from the rule of law, in particular the independence of the judiciary. Other grounds for clashes came with the management of the migratory crisis and Poland’s refusal to implement the EU emergency relocation plan, the introduction – following a decision by the CT – of a near total ban on abortion and the declarations by many local authorities of being free from “LGBT ideology”.
Judgement K 3/21 is the culmination of this enduring battle over respect for the EU’s values and principles but also over state sovereignty, and it shows how far apart the EU and Polish authorities are. In the ruling, the majority of the CT stated that Article 1, first and second paragraphs, in conjunction with Article 4(3), Article 2 and Article 19(1), second subparagraph of the Treaty on European Union are inconsistent with the 1997 Constitution.
Among the other reasons, the Court affirmed that under the provisions mentioned: a) the European Union authorities act outside the scope of the competences conferred upon them by the Republic of Poland in the Treaties; b) the Constitution is not the supreme law of the Republic of Poland, which takes precedence as regards its binding force and application; c) the Republic of Poland may not function as a sovereign and democratic state. As Agnieszka Bień-Kacała notes in this Symposium, the ruling contrasts with the previous Polish constitutional case-law on EU law: indeed, back in 2010, the Constitutional Tribunal recognized the unique position of the Lisbon Treaty and its compliance with the Constitution.
To properly understand what this decision means for the EU, it must be read in context and it is a multifaceted context characterized by contrasting tensions: on one side the growing narrative advanced by Poland and Hungary, which challenge the EU authority in several areas and see EU interference as a constraint over the expression of national sovereignty and identity; on the other, what has been defined as a Hamiltonian moment for the EU, marked by the establishment of the NextGenEU program, which provides economic support for Member States that have been severely hit by the Covid-19 pandemic and paves the way for a new step in the EU integration process.
[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]
In negotiating intrastate peace agreements, an important threshold that needs to be crossed by the conflict parties is addressing the meta-conflict, i.e., the conflict about what the conflict is about. Bell argues that disagreements about the nature of the conflict lead to disagreements about how the conflict should be addressed. Arguing that the conflict is about the lack of democracy, for instance, leads to one set of solutions, while the position that the conflict is spurred by “inter-group ethnic hatred” leads to another set of solutions. It is unlikely that a conflict could be easily classified as being rooted in only one of several possible causes. A single conflict often has multiple facets, and conflict parties will need to agree on what they deem to be major conflict facets that need to be addressed.
The initial agreement of conflict parties on the contours of the conflict, however, cannot take the place of a methodical analysis of its structural causes. Peace negotiations are exclusionary by design, and formal processes of agreement-drafting often leave out important voices – leading to a limited framing of the conflict. Moreover, determining the root causes of conflict cannot be subject to negotiation, which by nature involves compromise. And in contexts where potential catalysts for internal conflict such as rampant poverty, landlessness, and racial discrimination can be traced to colonial-era rights violations, determining the nature and root causes of conflict requires an examination of how colonial era harms may have contributed to present-day violence, and this would require more than just negotiation.
In his report dated 19 July 2021, the United Nations Special Rapporteur (UNSR) on the promotion of truth, justice, reparation and guarantees of non-repetition Fabian Salvioli argues that the mechanisms developed in the field of transitional justice can be valuable tools in responding to the legacy of rights violations in colonial contexts. While transitional justice projects have traditionally been limited to dealing with the consequences of conflict rather than root causes such as structural violence and economic, political, and social marginalisation, transitional justice mechanisms, such as truth commissions, reparations programmes, memorialisation, and guarantees of non-recurrence, can be designed specifically to investigate, address, and remedy colonial legacies.
Applying the lessons from the UNSR’s report specifically to the context of internal conflicts could radically transform contemporary peace processes. Employing transitional justice mechanisms in peace processes to inquire into the colonial roots of internal conflict will change the conversation around responsibility for harms in internal conflicts in at least two ways.
Several weeks ago, the Supreme Court issued a landmark judgment recognizing a right to voluntary abortion during the first trimester of pregnancy. The ruling renders several articles of the criminal code of the state of Coahuila criminalizing abortion during the first 12 weeks of pregnancy unconstitutional, and thus revolutionizes abortion law in Mexico.
As of the date of the ruling, only four entities of the Mexican Republic authorize unfettered access to abortions of up to 12 weeks gestation: Mexico City, Oaxaca, Hidalgo, and most recently Veracruz. The local criminal codes of most states recognize narrow grounds for abortion such as when the pregnancy is considered life-threatening for the pregnant person or if the fetus is diagnosed with a severe congenital malformation. At the federal level, the only circumstance in which abortion is legally permitted is in cases of rape. However, several feminist organizations have pointed out that authorities routinely hinder or deliberately block access to free and safe abortions even in cases in which these are allowed by the law. Many women have been imprisoned because of this, according to reports, almost one person per day is prosecuted for abortion in Mexico.
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 email@example.com.
Developments in Constitutional Courts
Belgium’s Constitutional Court has decided to upheld decrees adopted by the Flanders and Wallonia regions that prohibit religious slaughter.
The Albanian Constitutional Court has overturned the Electoral Code by abolishing the one percent threshold for independent candidates.
The Constitutional Court of Angola has declared the illegal election of Adalberto da Costa Jr. as President of UNITA, at the party congress held in November 2019.
The Constitutional Court of South Africa has ruled that the Gauteng government’s decision to dissolve the City of Tshwane council in 2020 was unlawful, even though there were “exceptional circumstances”.
The Slovenian Constitutional Court has suspended a government decree under which public administration employees would have to either be vaccinated or have recovered from the virus to come to work from 1 October.
Turkey’s Constitutional Court has rejected claims by 13 applicants accusing public officials of “violating victims’ right to life” in the 2015 Suruç massacre.
In the News
A deputy from the European Solidarity Party announced the submission of the law on de-oligarchization to the Ukrainian Constitutional Court.
In Germany, SPD, Greens and FDP will meet to discuss a possible coalition after the national election.
Romania faced political deadlock following a vote of no confidence in Prime Minister Florin Citu and mounting public anger against the country’s political class.
The Albanian judge, Ledi Bianku, who has served at the European Court of Human Rights (ECHR), has been appointed at the Constitutional Court of Bosnia and Herzegovina.
Turkey has ratified of the 2015 Paris Agreement on climate change ahead of the UN climate conference.
Carlos A. Bali, Principles Matter (2021) (offering a thorough analysis of multiple constitutional issues during the Trump administration)
Populism in Action Project invites participants to join the online event ” Populism in Europe – The League Yesterday and Today” focused on new research into the evolution and growth of Italy’s League Party. Deadline for registration is October 20, 2021.
The editorial team of “Children’s Rights Under Siege: Dignity in the Era of Global Interdependence” invites chapter proposals covering multidisciplinary topics on children’s rights. Deadline for abstract submission is December 15, 2021.
The 2022 Public Law Conference to be held at University College Dublin welcomes paper submissions for the topic of “The Making (and Re-Making) of Public Law”. Deadline for abstract submissions is November 15, 2021.
The British Institute of International and Comparative Law (BIICL) and Hasselt University invites paper submissions for the online conference “Climate Change Litigation in Europe: Comparative & Sectoral Perspectives and the Way Forward”. Abstracts and short bios must be submitted by October 31, 2021.
The Faculty of Law at the University of Helsinki invites applications for the position of Professor, Associate Professor, Assistant Professor of International Law. Deadline for applications is November 7, 2021, 23:59 EET.
The University of Gothenburg, Department of Political Science, invites applications for a post-doctoral researcher in Political Science for Varieties of Democracy (V-Dem) Institute. The application deadline is November 11, 2021
The University of Melbourne welcomes submissions for the online conference “Legalisation of Same-sex Marriage: A Global Perspective” to be hosted on 7th and 8th December 2021. Deadline for submitting abstracts is October 15, 2021.
University of Worcester and the University of Sheffield will host the online conference in “Questions of Accountability: Prerogatives, Power and Politics” taking place between 1-5 November 2021. Keynote speakers include Professor Alison Young and Professor Jonathan Slater. The event is free to attend and the deadline for both presenters and delegates to register is 24 October 2021.
Special Series: Perspectives from Undergraduate Law Students
Ishika Garg and Shamik Datta, National Academy of Legal Studies and Research, Hyderabad (India)
Recently, in Rajeev Suri, the Supreme Court of India (‘SCI’) has recognised participatory democracy as a strong element of the Indian representative democracy, embedded in the Constitution itself. However, the government has failed to echo the judicial position towards public participation in its recent legislative processes. In this post, we argue for the inclusion of a right to public participation within the ambit of Article 21 of the Constitution, in cases which directly concern their right to life and livelihood. To support this, we shall draw strength from a comparative constitutional position on this subject-matter in other common-law jurisdictions, and rely on recent Indian legal developments.
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