International law ↳ system which assumes s tates t o be e qual under a legal perspective. they are all equal but some states are more equal than others (US). → Its regime makes us understand relationships among states beyond the scene of states = this is the point of international law. → t he Miller case = about legal mechanism to follow in order to exit the EU. ⇩ case arose from the claim presented by a group of people headed by M iss Miller, a ⇨ lawyer who tried challenging very a ctive group whom promoted different the brexit process in any way kinds of controversy against Brexit possible ↳ important because now the EU states have the possibility to exit EU thanks to L isbon Treaty as the UK did after the referendum of 2016 occured → the case is about what happened after the referendum whether m inisters (executive power) in the P arliament (legislative power) are entitled to go on independently and which is the position given to ministers with respect to the Parliament → international law is traced back in the P eace of Westphalia and mainly deals with the conduct of states in their relationship both as single actors as considered as actors gathered together in an international organization ⇩ states are the outcome of the concentration of power of the monarch in the modern era and that kind of creature is the first and main actor in the scene of international law → states are sovereign regarding to their territory and people may meet in a common agreement (treaty) ⇩ w hat’s up when a states must relate to another entity which is s overeign at the same level? make war (in abstract) c onflicts among individuals (possibility to rule out international affairs) → two actors considered to be equal and sovereign may meet in a common agreement (a treaty= important source of law)↘ ⇩ it represents the way to r egulate the first experiences of treaties in t he relationship among equals. international law could be depicted as two kings meeting at the boundaries of their respective territories, sometimes agreement were signed on bridges) s tates are the m ost important actors in the international scene and they are made by four elements: ↳population ↳ territory ↳ government ↳ capacity to enter in relations with other states I nternational organizations, the second, are states gathered in a stable way under a kind of whatever form of agreement and deciding to somehow gather together into an association (established by states). sometimes states limit their own sovereign power by conferring their power to international organizations. ⇩ the traditional international organizations arise from treaties and agreements among states and it is a kind of a c onstituent document: ex. UN, the World Bank, NATO, UNESCO. ↳ they can be: supranational, national or regional made by gvnm or not (greenpeace) → Within the limits of the conferral of powers they may lose some part of their sovereignty ( = right to exercise supreme political authority over a territory and its people); has its origin in the colonial expansion, from discovery and occupation but also in conquest (use of force) or cession; as far as the european case is concerned we may have that, for instance, Italy limited its sovereign power in order to confer part of its power to European Union and the other participants did more or less the same. ↳ international organizations may differ depending not only on the p ower assigned to them but on whether they have a more general p rojection or a more subject oriented one. →e x. United Nations: develops, creates and enforces int. law at many levels its powers are set in the UN Charter of 1945 g eneral assembly = discusses of issues and recommendations ]m ain judicial s ecurity council = binds decisions when peace or security are at stake ] organs in ICJ European Union : 27 member countries 3 candidates for admission its decision & rules have direct effect on citizens of members → looking for others actors we come to individuals taken into consideration in international law by being linked to the state through the nationality or citizenship, ⇩ status of being treated as a national of a state for particular purposes not been considered as real proper actors but c onsidered actors through the intermediation of the state becoming more and more relevant not under a formal perspective but a s ubstantial one • diplomatic protection: if a national of state A is injured by state B, it may make a claim at B on behalf of its injured national. →customs and customary law and general principles (recognised by civilized nations): at the t op of international sphere more than treaties Different Sources of Law (listed in article 38 of the statute of ICJ) → the world is fragmented and so is the legal word. ⇩ treaties ( =written, formal and substantial agreement, unilateral or multilateral btw states governed by int. law) do not cover the all problems given in general by the necessity of having many different kind of actors interrelating and interconnecting. ↳they just solve a part of the problem and sometimes they overlap. they enter into force when signed and ratifies by a certain number of states → pacta sunt servanda: agreements must be respected (min. set of rules) and they are binding for states that agreed to it More at the top of treaties there are: customs and general principles: ⇣ ⇣ form of practice repeated over the time recognised by civilized nations and considered to be lawful and as a third source of law necessary: opinio juris ac necessitatis a pply in all major legal systems at the basis of the int. law experience. ne bis in idem: can’t be judged ex. criminal immunity for diplomats 2 for the same thing innocent passage of foreign ships in ter. sea → s ubsidiary means: are not a source of law but an evidence that can be used to prove the existence of a customary rule or general principle article 38 lists 2 means: • teachings, of the most highly qualified publicists • judicial decisions of int. and national tribunals (if ruling is about int. law) → no formal H ierarchy but in practice: 1. treaties 2. customs 3. general principles there are 2 types of norms of higher status than these 3: peremptory norms, so fundamental that no derogation is permitted from them (genocide, prohibition of war of aggression, armed force) article 103 of UN charter, in case of conflict btw obligation decided by state the ones in the charter prevail • executive of state → negotiate the agreement agreement become active → with an act →b ilateral investment treaty : occurs btw countries in order to allow private investments from citizens or businesses of one state in the other host state’s territory of the investment Miller Case (UK does not have a written constitution but have a constitutional arrangement, made of acts of Parliament, court judgement and conventions; the case helps us understand uk legal system) ↳ 1957, Treaty of Rome = European Economics Community ↓ ● an idea of a common market (goods circulating freely withing the eu) ● integrating all european states would help in avoiding conflicts and war and will help in affirming peace and prosperity ↓ but the plan became bigger and broader (uk entered after, in the 70’s through the accession act) → now it’s called EU and gathers together many countries and involve much more competences and limit more states than the initial plan ↳ they then became also a monetary union → area which adopted one single coin : euro (this required a sort of economic regulation with many consequences) → some political actors checked if the discontent (desperation) of UK about staying in EU could become something concrete → r eferendum in 2016 = outcome majority of people who expressed their will to exit the EU ↓ Gina Miller tried to challenge through legal means the process she was an a ctivist in trying making the brexit process fail, she strongly believed in the EU - not a political actor (ministers were substituting themselves to parliament: not allow and did not have the power to do so) → the decision rested upon the first referendum but then you had to make it concrete. ministers signed the treaty of accession because they thought it was under their competence → will to exit from EU first mentioned in Article 50 of the T reaty of Lisbon i f in accordance with its own constitution. ↳ british ministers played a central role signing first procedural step agreement in order to withdraw from eu (ministers = executive powers) →m iller’s idea: challenge the process by saying that since eu was included in the uk legal order with the statute approved by parliament “european union act”, it was needed another statute approved by parliament in order to go out and not a statute signed by ministers outcome of treaty of accession → w hat uk is doing rn: dismantling every rule in order to rule out what was once included in the initial agreement and finding new arrangements European Union ↳ difficult to qualify - controversial supranational entity has a current foundation in 2 treaties Treaty of Rome 1958, Maastricht treaty 1992 it doesn’t have a constitution, mainly an economic project - common marketit started in the 50’s → 1992 Maastricht treaty e uropean economic community changed in european union and decided to make it a monetary union = euro → 1997 Amsterdam Treaty - try to reform european institutions and enlargement of EU member states →b enefits: free circulation of goods, services circulation of capitals and people - with no impediments, custom duties nor boundaries →E U doesn’t have a Constitution because it scared many national governments but we do have a EU citizenship and many institutions: e xample of institutions working at an EU level → central bank, commission, p arliament, council: →E U Parliament directly elected by EU citizens (legislative body, represents citizens) →E U Council gathers the head of state and gvnm of member states → C ouncil of EU gathers together ministers, executives, of member states (represents national interest) → EU commission makes some drafts and offers proposals Lautsi Case ↳ some among italians were offended that children had to go to school and find a crucifix inside the classroom “obliging” them to believe or to be okay with it → on 22 april 2 002 lautsi’s husband r aised the question of the presence of the crucifix and asked whether they ought to be removed but by ten votes to 2 with 1 abstention the school’s governor decided to keep it → the first applicant c ontested that decision complaining and relying on article 2 (principle of equality) article 19 (religious freedom) article 9 of the convention and article 97 of the constitution (principle of impartiality of public administrative authorities) →a pplication against Italian Republic by an Italian National Ms Lautsi on 2006 regarding her 2 sons : Dataico and Sami Albertin (resident in Italy in Abano Terme) before a court set in Strasbourg: the echr →ruling : e chr in strasbourg decided not to decide; it was a point that needed to be left to the margin of appreciation o f member states, bc there are different cultures and different approaches. in some states it might be prohibited, in others neutral and in others even compulsory → l ateral pacts btw Italy and Vatican state : international agreements → it indeed realizes that it wasn’t really dangerous for the formation of children and their beliefs, but still left the case to the margin of appreciation ↪ even if the crucifix is not a way to influence so much children it is a duty in c atholic states. Van Gend Loos → was sent in preliminary ruling to the European Court of Justice and regards something with fundamental importance in the european economic community system: c ustom union ⇩ at the basis of an economic integration = arrangement among nations for 1 market bc if law changes across states there will be diff. rules depending on the place →c ustom duties = protect national production in fact someone is more interested in national goods instead of international ones, bc if you consider other goods produced in other countries the price will be the one from the market + the custom duty →p rotectionism = protect your own market, to be able to protect your own economy and favour national companies and make them stronger with regards to those registered in other countries → e conomic integration was considered to be a mean for ensuring peace and prosperity: meaning free circulation of goods, legal boundaries down, keep off from custom duties; economic integration is first based on custom union → the case arises bc of a custom duty specifically is adopted by t he netherlands so we do have someone who challenges the custom duty adopted over there as impeding the circulation of products goods among netherlands and other countries ↕ is it allowed or not? clearly not bc the eec founded on a custom union and the main source which says so is a rt. 12 of the treaty of rome (= treaty signed in 1957 which gave birth to the eec) → judgement of the court in 1963 and eu economic community created in 1957 →c ustom union and the need to e liminate custom duties btw member states is ruled out in art 12 which says that member states shall refrain from introducing any new custom duties on import or export bc custom duties are an obstacle to the circulation of goods, impeding a common market t o be created →p roducer of raw materials in general imported from west germany to the netherlands and they were obliged to pay a d uty but they wanted the m oney back so they went to the ecj to make the netherlands pay the money back should a country keep the custom duty? ↓ →A rticle 12 of Treaty of Rome says that member states shall refrain from introducing btw themselves any new custom duty on import or export, or any charges having equivalent effect ⇩ treaties can enter a national legal system depending not only on constitutional systems but in many systems (for sure the parliament), through a r atification of parliament and in general they should not be considered immediately effective for individuals since nat. organ. are created so that individuals are considered as a residual part of the international legal order → whether a provision of a treaty, such as article 12, may entitle companies or individuals directly with specific rights. i s it immediately applicable? can we have someone saying i will claim my rights infringed bc the treaty gave me some rights? ↪ the solution given partly by the wording of art. 12 and partly by meaningful intervention of E CJ in the case ↓ wording is so clear and immediate → * member states shall refrain from that we do not need any other i ntroducing new custom duties * kind of act. it is self implementing, it is a prohibition → immediately applicable as the wording makes us understand, and is directly relevant for citizens. nationals claim their rights ↳ how can we i mplement the treaty? just not doing what’s prohibited →n ever before a treaty was considered immediately effective bc this means that a source, which is external to a legal order becomes relevant also within the national legal order. → treaty is enshrining a certain kind of right for the addresses, in this case companies → more than an agreement which nearly creates mutual obligation within the contracting states, it is different. ↪ confirmed in the preamble which refers not only go gvnmts but to people = they created something m ore integrated → states no longer have a word to say but they leave institutions operate states have l imited their sovereign rights in limited fields → conclusion ot be drawn: ↪c ommunity law constitutes a new legal order and not only imposes obligations on individuals but it also intend to confer upon them rights → ECJ has jurisdiction in interpreting the treaty European Convention on Human Rights ↪ i nternational legal order provided of a c ourt based in S trasbourg → people can present a direct claim in order to have their rights protected. we have a mother of 2 children against italy in lautsi case. italy as a nation state is assumed to infringe a specific freedom, namely the one of thoughts religion and of teaching. rights violated from a certain state. → 4th of november 1 950 signature of the convention signed in rome. → any member state of the european union is party to the convention but t he EU per sé is not a party to the convention ↓ it gathers together the member states of the eu and others states it’s 47 states together (turkey + san marino + azerbaijan…) → the word european in the echr derives from the idea that the context and environment where the convention arose was more or less eu but not as the european union but the g eographic area. → other countries showed their interest in the convention and didn't participate in it but remained as observers (us, canada) → eu convention has institutions: the court is very active in protection of citizens it is not a supranational entity, there is no delegation of sovereignty but there is the c ommitment to respect human rights → r ights: set of freedom that were the objective of the debate that involved some parents protecting their children against italy in one of the main problem of our contemporary society (lautsi case) * ex. of rights: protection against torture, of life, right for fair trail, freedom of expression, religion, no punishment w/out law, prohibition of discrimination* → does the eu respect the convention? it is not a party of the convention but in article 6 of the treaty of eu there is something said about eu and the convention. ⇩ there are three possibilities why: - eu d oesn’t need to do that bc all member states are parties of the convention - eu d oesn’t care about human rights - eu d idn’t consider the possibility but stated something anyways in art 6 →a rticle 6 PAR 1 the union recognized the rights, freedom and principles PAR 2 the union shall acceed to the eu convention shall not affect the union's competences as defines in the treaties PAR 3 fundamental rights as eu convention shall constitute general principles of the union’s law ⇩ how many levels of protection of rights are there?: - national, national constitutions - supranational, charter of rights of eu - international, echr Omega Case → it is about germany considering offensive towards human dignity a certain kind of activity = discussing about human dignity ↪fund. value of german const. and legal system →w hich activity was considered to be offensive? e conomic activity : laserdrome bc of the exploit of the situation pretending to fight one against the other * also as in lautsi case there would be someone saying it is just a game and others saying that using guns is offensive and that people might not consider it as a game * → we find ourselves before ECJ, w hy? bc in prohibiting that economic activity germany was l imiting the right to exercise an activity and a freedom which is the free circulation of services but also the freedom to entail into a certain kind of activity conflicting also with the basic assumptions of the common market → eu is based on an economic integration from the beginning so anything which has something to do with the free exercise of an economic right is taken into high consideration ↘ we find ourselves before ecj bc the german company was prohibited of exercising a specific economic activity and was impeded because of the lack of human dignity → there is another general principle: c ompetition and freedom of doing business that is why the question was brought before the court quite i n the opposite way ↙ the main question was not whether dignity could be somehow restricted by the activity but h ow much d ignity could justify a restriction in economic activity. → f reedom to provide a service in eu is even more important bc is the base for i ntegration → court came to another c ontroversial conclusion: “Community law d oes not preclude an economic activity consisting of the commercial exploitation of g ames simulating acts of homicide from being made subject to a national prohibition measure adopted on grounds of p rotecting public policy by reason of the fact that that activity is an affront to human dignity” → foras: where extent of human rights are discussed and court makes rulings ↪ the final outcome will find someone in agreement or in disagreement but court usually use some legal specific tools and instruments and a small interpretation in order to justify it but it is never politically neutral Freedom ↓ belongs to citizens and implies that public autho. shall refrain from certain actions which may make it impossible to exercise this right ≠ Rights ↓ belongs to citizens but it supposes the help or intervention of public/ private authorities in order to accomplish this granted possibility ↳ catalogue of rights and freedom can be included in constitution or in another charter. they can be grouped in different categories: ↪ regarding individual in itself : personal freedom, freedom of movement ↪ regarding individual as a part of a group : as a citizen, as a part of a political project, freedom of assembly and association ↪ economic rights r ight to property, trade union rights associated with our constitution businesses working even though there is a pandemic ↪ social rights education, healthcare, housing, welfare require active intervention of public powers. they are costly so depend on availability of sources. obama care → discussion about us federalism but also reform made for ensuring treatments for all ↪ political rights right to vote, participate in a party → there is not clearly a hierarchy but it depends on what rights are at stake: ↳ if discussing about the right of economic and healthcare, usually we can see the predominance of healthcare over the economic one → origin of personal freedom : 1215 Magna Carta “Habeas Corpus” ↪ one cannot be searched, detained or inspected without a warrant or a valid cause → rights can be protected by : ↪a rticles in constitutions ↪a cts detached from the constitution ↪a cts where there is no constitution IN CASE OF INFRINGEMENT R IGHTS ARE PROTECTED BY COURTS W/ CONSTITUTIONAL P OWERS OR COURTS ENTITLED TO → uk for instance do not have a constitution but they adopted a h uman rights act ↪ outcome of their participation to the ECHR: including it in their legal order → the extent to which rights are protected may vary: -in convention, no d eath penalty other democratic nations, it exists -in USA v oting by mail w as necessary in Italy voting by mail is not allowed → Charter of Nice - charted of fundamental rights of the EU: - chapter on dignity, human dignity, prohibition of torture, prohibition of slavery - freedoms, respect for family and private life, right to marry, freedom of thoughts - equality, quality before the law, non-discrimination, quality btw men & women - solidarity, fair working conditions, prohibition of child labour, healthcare, social security - citizens’ right, right to vote & participation Form of states and Gvnm → coming back w ithin the state → form of state as a label which defines the relationship within the state and citizens ↪ also defines relationship in diff level of gvnm (federal states, centralised states) → forms of gvnm which regard the set of rules and qualify the outcome of them which concerned the distribution of power within different branches of gvnm ↪ relationship among constitutional bodies → classification used in order to classify how political power is arranged: (definitory and not prescription) democratic pluralistic states ↓ outcome of high conflicts among nations or btw its citizens. after french revolution affirmation of power, no power in hands of 1 ↓ multiclass population called to participate in political life and vote a bsolute states ↓ origin of state: any kind of power gathered in hands of monarch, identified as the state itself : “L’etat c’est moi” (transcendent legitimacy = given by god) ⇩ e nlightened absolutism: period where monarch kept all power but certain rights recognised to citizens by adopting charts (forms of constitution) which were considered by the …. not by the → able to be t ransformed into something potentially extremely wrong ↪ greek philosopher aristotle = gvnm run by 1 person :monarchy, by a few: aristocracy, by many: polity. they might be transformed into something wrong: aristocracy to oligarchy, polity to democracy, monarchy to tyranny *UK: form of state= parliamentary even if a monarchy= queen reigns but does not govern)* → in most countries, idea that p ower must be divided and not concentrated in the hands of someone, main constitutional body must have the representation of people. to classify a certain state experience you have to look at where the power is located. →p arliaments are representative assemblies of people and communities. born together w/ constitution, essential elements of current states. outcome of many diff. events. main roles and political rights enlisted. origin: royal devisory assemblies. nowadays are experiencing a strong c risis ↪ bc of populism: current trend that think power should go back directly into the hands of people and then restricting the role of representative assemblies. → in the idea of many the parliament can be replaced by the web: ↳ in italy we have the p latform rousseau : which should substitute the discussions which happen in parliament → parliaments may assume different shapes: ↪u nicameral, dedicated to unitary state, concentrated power. (France) predominant in the world - 60% ↪b icameral, dedicated to federalism or revolutional arrangement, and (Italy) protection of minorities. the idea which stands behind is to e nlarge the representativeness. the fewer the n° of representatives, the weaker the representativeness of the chamber. ↙ according to populism this doesn’t work → takes origin in mistrusts of representative models → a configuration of a parliament derives from history context and parliamentary tradition. why are parliaments made by one or two chambers? which factors influence this? : size of country and population, federal - regional central arrangement of the country presence of a s table democracy → in any form of gvnm you may have the role of the 2 chambers. they decide together to agree on something, or be called to play different roles within the legislative process →n ° of mp (members of parliaments) and structure of parliament: outcome of how a certain community is composed, how many constituency we have inside. ↪ it reflects on the capacity of a single mp to be representative towards people and be perceived as being representative. → parliaments are somehow working in plenary (=members p resent at a conference) and also formed by groups representing parties. their work may be structured around smaller groups working in some topics and general vote in the plenary. How are powers distributed → in a state gvnm powers should be distributed within different actors ↪ gathering them in only one hand could trigger freedom → looking at the i nstitutional context w ithin a nation state and we try to describe how power is located. → the principle of separation of powers : ideal situation in order to prevent the p ower gathered into only one institution ↪ in contemporary democracies : idea of power distributed among different branches with its own independent powers and responsibilities controlling each others and the others, preventing forms of arbitrariness and absolutism = -e xecutive, gvnm enforces law & take role of proposal - l egislative, pass the law (mainly parliaments) - j udiciary, interpret law *parliaments: those institutions present in parliamentary systems, currently define behind the legislator (called to represent people) *congresses: institutions which perform same role but in presidential systems - parliaments represent people both if unicameral or bicameral: ↪u nicameral structure - legislator, depends on size of country and population, how is divided and on federal or regional choice on the role played by m inorities. the broader the parliaments the better representativeness of minorities, but broad parliaments may prove less efficient. ↙ parliaments do not always work on a plenary basis, much of the w ork is performed within specific specific committees formed to represent all different souls present in any parliaments. ⇨ the p arty system and affiliation to a certain group of parties, is a d riving principle for forming committees. remember ! : parliaments derive their being from constitutions and they are quite the same *empeachment procedure: exists in the us but doesn’t involve the same prerogatives in italy* → the o rigin of the parliamentary form of gvnm across europe is to be found in England and then it spread across Europe: - examples italy, p arliamentary republic uk & spain, p arliamentary monarchy → in parliamentary system there are specific features: 1. the existence of r elationship of confidence btw executive and parliament (very clear in italy bc gvnm must enjoy the confidence of parliaments.) ⇩ separation of power relies on a distribution btw: - executive→ enjoys power of legislative initiative, propose laws to be discussed in parliament and must i mplement legislation; gvnm (prime minister, cabinet, head of gvnm, some ministers) entrusted the confidence by parliaments. 2. the head of state (=public person which officially embodies a state in its unity and legitimacy) i s distinct from head of gvnm in parliamentary system.its role varies a lot, mainly a ceremonial role for instance in the UK and its role changes becoming broader when some circumstances occur. ex. Queen and Mattarella → h ead of state; J ohnson and Conte→ head of gvnm. | | hereditary elected by basis parliament →h ead of gvnm is not elected directly, citizens vote for parliaments and winners in that election usually sit as head of gvnm. ↳ but it may vary. n ot always the winner of coalition will sit in parliament. it rest upon the head of state to elect the head of gvnm (conte wasn’t a politian before or didn’t participate in a coalition. but he is a technical figure appointed by the president of the Republic. not a binding p rovision). ⇩ in uk, though, a constitutional convention requires the queen to invite the leader of winner party to form a gvnm. →h ead of state may be obliged to appoint the leader of party who wins the election either there could be a d iscretionary power appointing him. ↪ the choice depends on a constitutional framework relying in written provisions but also on the situation and recalls the needs required by the relationship of confidence btw parliaments and gvnm. ↙ tends to appoint someone who will enjoy the confidence of parliament which is if we come out an election, the leader, if the outcome is not clear or someone resigns, he will listen to all the forces present in parliament and understand which figure is capable to form a gvnm which will enjoy the confidence of parliament → different i n uk where we have a clear majoritarian system 3. regards term of the office: the head of state’s determined on hereditary basis until her/his death; elected in a parliamentary republic with a fixed term ↘ h ead of gvnm doesn’t have a clear term, but it depends on the relationship of confidence (a vote of no confidence by parliament toward gvnm may the gvnm resign.) italy: 7 years germany: 5 years ⇩ for the president w / the dissolution of parliament →g vnm must resign as well (can happen frequently even before end of term ) * in germany they can express their lack of confidence only electing another chancelor * Presidential a nd S emi-Presidential forms of gvnm ↓ U S and ↓ France = head of state and of gvnm coincide into 1 figure →p resident usually s eparated from the c ongress (legislator), n o confidence needed ⇩ composed by house of representatives, lower chamber ; and s enate, represent each single state, upper chamber - b icameral structure). → one of the checks and balances of the presidential gvnm is the power assigned to the congress to impeach the president in specific situations. * Confidence → parliament ready to approve the political address by a certain executive * Impeachment → procedure where the congress enters into an assessment into specific acts or faults committed by the president → the overall gvnm gathered in the hand of president whom executive power is vested. body responsible for the legislator (congress). it has the power of veto in some decisions →h ow is he elected? i n the us is popularly elected (not directly), they vote for presidential electors who are not obliged to vote for the candidate of their party ↪ you must g ain the majority of votes in one state in order to have all the presidential electors in that state : m ajoritarian electoral state (winner takes all). → this voting system derives from how huge the country is. ⇩ in 2016, in trump’s case he received the majority of votes from presidential electors but the m ajority of people voted for H ilary ↘ The r ight to vote can be exercised also b y mail, although I taly didn’t adopted this kind of system because of the t otalitarian regimes experienced. → The c ongress has the power to legislate. it is a bicameral chamber, composed respecting different constituencies of these 2 big federations, states on one side and people on the other. elected every 2 year while the president every 4. ⇩ it has a strong influence in the administration and exercises some powers over the president, the most relevant is the power to impeach the president (= formal procedure of impeachment has been completed with Nixon and Trump). → The president usually decides alone. he t akes the overall responsibility of his decisions in contrast with the ones of a collegial body. With the president we have the cabinet and the growing role of the staff of the white house changing every year. →F rench model : semi presidential executive ↪ it combines many different features → the p resident of the republic is d irectly elected on a t wo round voting system, but it is up to him to appoint the head of the gvnm who has the confidence of the members of the national assembly (French parliament). ⇩ the president must take in consideration what are the political drivers within that assembly in order t o appoint a head of gvnm who has the c onfidence of the national assembly. → But in the past years, the president of the republic in France came from a certain political party and the appointed head of gvnm belonged to another political party : c ohabitation. ↘ They do not love each other but the president knows that for the composition of the national assembly that is what it needs to be done. → the o utcome was due in different lengths of term btw the national assembly and the president. ↪ Some specific changes have been done in order to have the 2 lengths closer and to avoid a national assembly to be consistently different in its political feature from the president of the republic. → There are many f actors w ith which bring into a general assessment: - the electoral system - the length of the term, relevant in france to relate a situation where possible conflicts may arise and policy could be in a situation of suspension or not completely implemented bc of the conflicts btw branches → The principle of separation of powers is affirmed but n ever strictly applied. there are forms of strong interactions considered necessary in order to ensure the effective working of the system itself as a whole. Those systems look at the separation of powers. → Some gvnms give some power to legislators through acts like: d ecree laws, legislative acts concedeed to gvnm under specific situations, at the same level as statutes d ecree of the head of gvnm, below decree laws, such as D PCM (decree of the president of council of ministers) → Constitutional convention is both stringent and rigorous, but usually states do have constitutions (=general acts in which not only the institutional features of the legal order are affirmed but also the protection of rights) council, composed by the executives of member states formed by head of gvnm and states, exercise a political address over eu affairs commission, which has supranational character appointed through a long procedures parliament, elected by the people directly → Across Europe both council and parliament share the legislative power but the legislative initiative rest up to the council. → → At the eu level, we do have 2 legislator: the council a nd the parliament. ↪ the Council represent the protection of the interest of the single national state. It is not said that the good for eu people is the good for a single member state. ⇩ the l egislative initiative is given to a s upranational institution (the commission knows what is need for the interest of the European union). → I n the eu i s given to the p arliament the possibility to m istrust the commission (it happened at least once in the past) → s ome topics left to eu were perceived as something ambiguous and far distant from people. it does not intervent in health sector bc the decision rest upon single states. Administration (part of the executive power) ↪ meaning give concrete execution to the provisions set by the legislator. → it provides services, sets the rules for making the rules concrete, implementing legislation. if we consider the actors: public administration, ministers, governmental agencies, agencies, public entities, territorial public entities (municipalis) . → in public utility we have private companies providing services being recalled within the general categorizing of being administrations so under the subjective point of view it is composed by many entities. to give administration to law → statutory provisions , by legislator first stage of execution, gvnms actions of policy making, executive rule making some forms of adjudication we are into the executive rule making activity where there is a public administration setting a criteria still general in their nature but their not considered to be so general in order to be included in the legislator. the adjudicatory category when we deal with specific cases ex. professor adopts general guidelines settled down in the syllabus. Adjudicatory face: when she is assessing the exam she implements on the base of a specific case the guideline on the syllabus. student A exam is worth a certain kind of assessment. è → US citizens, CEOs, manager rarely find themselves in contact with l egislator but instead with administrator (make law concrete) which implements legislation. → are administrations bound to something? yes. they are bound to respect a certain degree of legality, the p rinciple of legality. it must respect legality & rule of law. ⇨ if u find yourself before an administration who do not respect the law such as for example a refusal to give your visa, or an administration not executing law ↪ check whether there are some reasonable reasons. if they refused it bc of some documentations lacking enlisted in the act setting the criteria to release it. if we do not like the italian policy to welcoming people we should talk to the administrator (change representatives in election). → implementation of legislation is a general fase performed below the rule settled down by the legislator aimed to give complete implementation of law. → there are different levels. usually individual and companies find themselves before an administration, while before the legislator just when they vote for them. * principle of legality performed through acts of rule making and adjudication * → rule making may require the participation of the public to be more efficient → the legislator is usually elected by citizens, while the administrator is part of a body not elected but appointed. the lack of channels of accountability and democracy is covered by forms of participation in the decision making process. ex. case for reimbursement for the electoral campaign f or eu parliament elections: i mportant point in the democratic life of a state. ↪in many jurisdictions the electoral campaign expenses are covered publically. ⇩ if no reimburse of electoral campaign through the public reimbursement of publically there would be private forces ⇨ elector campaign we allow financing it which may be running the everybody to participate in risk of having only those who are rich an electoral campaign. participating in the political life. ↳ it is the same as paying mps publicly monthly. you avoid that only those who are rich would participate in the political life (such as in the past with census). * important to have most categories represented (rich and poor) bc if there’d be only 1 category, it will tend to represent its interests in long terms → p luralistic contemporary democracies, strong representation, m ore than one center of power. → the case regards a controversy arose among the french political party, le verts, those who cared for the environment, who challenged the decision of the eu parliament (not as the legislator but as the administration in charge to reimburse electoral campaign expenses) ⇩ they disliked the reimbursement received : it was the wrong calculation. EU as administrator didn’t respect legality, contravening what the general act affirmed. those quotas were unfair : not corresponding to the wording of the legislation. in order to challenge the final decision adopted they asked to court to check if law had been respected (task of judiciary). ↪ in the article of the treaty which ruled on challenging before the eu of whatever administrative activity, the eu parliament was not enlisted among those institutions whose act could be challenged. ↙ art. 230 of the treaty establishing the eu community refers to the possibility given to third parties considered affected by an administrative decision to challenge the legality of certain acts before a court on one side, there is the possibility for those affected to raise weaknesses, on the other side there is a possibility given to them in order to control how administration implements the law. if administration do not implement well the law : arbitrariness. → law is decided upon by the parliament. should the administration be entitled not to respect law? no, or you would nullifying all the pluralism. we have to be sure that administration really complies with legal requirements legislator → decides , executive → implements , judiciary → controls (court) . → is the parliament an institution whose acts are out of any challenge of legality or does the parliament have to be substantial included? ↳ why initially not included? didn’t think about themselves while drafting it ⇩ legibus solutus : free of any duty to respect the law in the case of the parliament p aragraph 23 of the le verts decision: “ it must be first emphasised that eu economic community is a community based on the rule of law. in as much as neither its member states nor its institution can avoid a review of the questions whether the measures adopted by them are in conformity with the b asic constitutional charter, the treaty “ = f inal decision adopted by court : even if not enlisted the parliaments has to be considered in the list of those whose actions must be reviewed if someone is responsible for administrative implementation: the acts of those institutions are possibly challengeable before a court. * rule making = specifying the real general wording of constitution, statues exc. * adjudication = concrete and real specification in individual case we need to ensure that administration respects the rule of law. in order to ensure the respect the law we need an e xit strategy (a control). ↳ so administration is controlled by the judicial review of administrative decisions United Kingdom ⇩ no constitutional text which gathers together fundamental constitutional rules. → a constitution can meaningfully exist even if it does not impose the hard restraints upon power which are a sine qua non of many constitutions. (without which won’t be possible) → the legal aspects of the british constitution are archaic, not reflecting the reality of modern political practice and failing to align with the contemporary constitutional values. → it is u nwritten & formed of Acts of Parliament, court judgments and conventions. →T hus the "British Constitution" consists in: - Parliament is made up of : Monarchy, House of Commons and Lords. in order to become law, bills have to be passed by both Houses and then it needs the Royal Assent. By convention and in practice today, the Queen automatically gives her consent, although she has absolute and legal power to refuse (power of veto), but it’s been more than 3 centuries since a monarch disregarded the minister’s advice to grant royal assent to a Bill. ↪ no legal constitutional text gives legislative authority to the monarch in Parliament, meaning the source of such authority is extra legal. - parliamentary sovereignty (no other gvnm institution has the right to override the legislation of parliament) lie in realpolitik (politics based on considerations of given circumstances) as distinct from law. indeed, this principle puts an end to all the assertions of the 17th century for which the monarchical power could be used to override Parliament - Common Law as a source of fundamental constitutional values and rights. - signature of various international conventions and treaties, such as ECHR. European law also applies, and according to the principle of Primacy, included in the charter of the EU, EU law has precedence over the UK one in any event of incompatibility. but with brexit will not be bounded by it anymore. - Chapter 13 - Parliaments parliaments and constitutions are born together as two elements of liberal state. no modern constitution can be recognised as it if not provided of a representative assembly, elected by all citizens entitled with political rights; reciprocally, no modern parliament can’t define itself as a political representative assembly without one or more fundamental charters designing its main structural and functional features and protecting the main political rights of citizens. the configuration of each parliament is the result of the specific history context or tradition of each country. there is a clear predominance of unicameral parliaments around the world. all member states of the eu have a bicameral parliaments. the bicameral p. is the standard model in use by large democratic states. the choice of bicameral over unicameral can be correlated with four variables: - federalism system; - large population; - size; - stable democracy the main reason for the establishment of an upper chamber is due to the need to represent the upper classes in order to preserve their power. the existence of two houses is reconnected with other douding values as the separation of powers and protection of minorities. the public image of the parliament is represented by its plenary (or floor). in order to call a body parliament it is needed to have a plenary. for example, eu council do not have a plenary so it is not considered a parliament. council members as representatives of each member state at ministerial level meet only in one of its configurations and never convene in plenary. the strengths and weaknesses of the parliament lie in the heterogeneity of its membership. when the members of a collegial body are too numerous and the level of heterogeneity is too high, it’s almost impossible to exercise any decisional function and it is confined to symbolic roles. the reason for success of parliamentary committees is the ability to find a balance between political representation and technical and sectoral expertise. if cleavages (line division into groups) are strong and political groups properly organized, the decisions taken by each committee are more likely to correspond to those that the plenary would have come to, reducting the time. the existence of parliamentary groups composed according to the party affiliation is a general feature of every democratic parliament. in many plenary debates, only 1 person is allow to speak. the functions of each parliament are defined in their respective constitutions. parliament has an essential relationship with the voters and public opinion. parliaments: those operating in a system in which the executive is selected by the legislature and responsible to it throughout its tenure congresses: those operating in a system in which legislative & executive are selected independently, and neither has the ability to dissolve or remove the other from office. the rules and principle of the parliamentary law are not normally place within the constitutions. it is thus for the plenary to adopt parliamentary rules of procedure with the constitution only determining hoe these rules have to be approved and which matters are reserved to it. Chapter 14 - Governments they can pose a threat to constitutional authority. two models of gubernative organization: - presidential system, based upon the idea of a gvnm of one person, the president, in whom all executive power is vested and it is strictly separated form the legislature by rules of incompatibility; - parliamentary system, characterised by a plural gvnm composed of a prime minister, a chancellor and ministers. the gvnm is regularly composed of the leading members of the majority party in parliament. US t he american constitution places the resident at the centre of the executive branch of gvnm. it is the president who carries the ultimate responsibility for the faithful execution of the laws. it is the commander in chief of the army and navy and has, with the advice and consent of the senate, the power to make treaties and to appoint ambassadors and other public officials. the concentration of power is based on the president’s exceptional political legitimacy. he is elected by the people and not by the congress. power is balanced and therefore exists a divisional of political power btw branches of gvnm so that each branch checks and balances the other. the president is not the only one in charge of the executive. the congress has extensive powers to shape and control the administration through organizational, financial and substantial means. to compete w/ the congress influence, the president has to rely on institutional help: the Cabinet. it does not hold formal powers. it is neither a forum for collective deliberations of gvnm policies, nor a place where central decisions rests solely with the president. it is not mentioned int he constitution. it evolved as an advisory body for the president and never became a central decision making body. it is a gathering of heads of the executive departments and senior advisors of the president, which do no have any formal powers. the american cabinet is not to be confused with its namesake in a parliamentary system. the composition is flexible. different presidents choose to extend the circle. the president's power to appoint the head of the executive is constrained by two provisions : art II, giving senate veto power on presidential nominees and equally constrained is the removal power of the president which is unlimited; the second one, the constitution’s incompatibility rule determines that the members of congress cannot hold an executive office and this changes the recruitment pool and process for cabinet members. cabinet members are not chosen from the group of leading parliamentarians or politicians but they are individual and spontaneous choises of president-elect. the main f unctions of the cabinet are t wofold: -advise the president and provide for direct communication between the president and the departmental heads -symbolic. president surrounded by cabinet’s members is a familiar picture on tv and gives impression of a unified & proactive gvnm w/ the president as its leader. now the cabinet has been overshadowed by a new institution: the White House administration. almost 2 thousand people work there. it comprises 125 offices of different shape and importance. they are assembled under the executive office of the president. it can be described as a solar system in which the sun is the president. there is no legally hierarchy or a clear delineation of responsibilities. there a re 2 models dealing with its complexity: - a pyramid model, chief of staff (central figure in WH adm. below the president) is entrusted by the president to manage the internal WH administration and shiel himself from managerial tasks. - a circle model, which tries avoiding a dominant chief of staff and it is built on the idea of direct access to the president. The WH has almost no permanent staff. every president brings along his own staff. the staff has eclipsed the cabinet bc of its importance. the staff organizes the presidential timetable. GERMANY instead is in clear contrast with the american system. the chancellor is elected by the parliament, the federal gvnm consists of both chancellor and ministers, no rules which prevent cabinet from sitting in parliament. the chancellor is the dominant leader of the cabinet. the system is a parliamentary one, and it balances the need for gubernative coordination (through the cabinet) and leadership (chancellor). its office, the federal chancellery has a more important role than planned. the cabinet is the regular and central meeting place of all min. & chancellor and it has constitutionally powers. chancellor’s role has 3 components: 1. has the power to determine general policy guidelines of the gvnm (given by its superior democratic legitimacy). no legal limits onhow to use this competence. chancellor politically at the top of the cabinet but it the federal president who appoints it, but it’s the chancellor at the end who has constitutionally right to select and nominate them, and has the right to dismiss ministers 2. he can nominate considering 2 political restraints: selecting from the charmed circle, the group from her party and party group. the cabinet is dependent for its existence and success on the support of the parliament; and a coalition gvnm (unwritten rule) every party within gvnm deicides autonomously about its ministers and the chancellor has no influence on the decisions of other parties. 3. competence to organize the scope and structure of the cabinet, n° of ministers and their respective fields of responsibility. chancellor’s organizational acts aren’t dependent on an approval by the legislature but based on the constitution. parliament don’t legally interfere. cabinet can also introduce bills in parliament, is not just an advisory institution but a decision-making body. to do so there is a procedure: - every member of the cabinet is informed; - a certain quorum of ministers take part in the decision; - the majority adopts the decision. the federal chancellery is not mentioned in the constitution but its today’s institutional center of the executive. it plays an irreplaceable part in gvnm process and it is more than the secretariat of the cabinet. it is the personal bureau of the chancellor. it is the central institutional basis of power, and a classical bureaucracy organized hierarchically from top to bottom. head of the chancellery is a senior civil servant who is also given rank as a minister fro special affairs. every ministry is mirrored in the chancellery. it has 3 functions: 1. serves as the secretariat of cabinet scheduling its meetings, coordinating their agenda and preparing the papers. 2. coordination point for what ministers work on. duty to check every proposal for a bill that comes from the ministers in a legal political sense, to ensure they are in sync with the general political direction of the gvnm. 3. plan and conceptualize policy, to spell out and transform political guidelines, that chancellor sets into action, project and law. the limits of chancellery’s competence are vague but strict. it mustn’t instruct ministries, cannot place itself btw chancellor and ministries. chancellery staff is composed of civil servants, mostly lawyers. their primary qualification is their professional quality, not their party affiliation. only six employees positions. Chapter 9 - par. 4 there are many constitutional problems which can be solved by more concrete norms. an example of debate might be the parliamentarism and presidentialism. one problem can be addressed to the relationship btw the legislator and the executive (delegation) one to the one between the executive and the judiciary (judicial review) and another to the one btw the judiciary and the legislator (constitutional review).One problem of separated powers is legislative delegation to the executive branch. first, Delegation cannot be understood as the abdication of the legislative function to another branch. because legislative rules must be applied by the executive. infact, it is better interpreted as a procedure in which the legislator makes use of the means of the executive. the delegation can also be the indication of a powerful legislator. second, delegation operates differently in parliamentary and in presidential systems. in parliamentary systems it is necessary a political trust relation between parliament and government. this is different for presidential systems in which president and Parliament compete for control over the subordinate executive. Judicial review becomes a problem for a separated powers when it is skipped. any legislative rule that immunizes executive action from judicial review can be seen as a functionally deficient state of separated powers. Judicial review might become problematic when loses contact with its procedural origin, the individual complaint, or when its course of action requires procedures that assimilate courts with the administration. Constitutional review is often seen as a solution to the problem of separated powers.
