ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

Polish cases, and analyzes the scale and dynamic
of political discretion determining the Commission’s
actions. Instead of facilitating tailor-made, flexible
responses, political discretion offers the Commission
the opportunity not to act in various cases and
contributes therefore to a fragmented and unequal
response to rule of law challenges, which has a detrimental
effect on the quality of the rule of law protection
in the EU.
Christian Boulanger: Discursive Struggles over
Judicial Review and Democracy: The Cases
of Judicial Disempowerment in Hungary and
Poland
How do we make sense of the recent constitutional
„coups“ in Hungary (2010-2011) and Poland (2015) in
which the governments and parliaments stripped the
Constitutional Courts of essential powers in order to
get rid of their constitutional supervision of the political
process? This talk argues that an analysis that interprets
the weakening of courts as part and parcel of a
return to authoritarianism might miss the point. My
argument is that in both countries, we see a national
conservative political elite with a plan to convert a constitutional
democracy to a majoritarian democracy incompatible
with the European norms and values that
the countries have signed up for, and a population that,
in its majority, does not defend constitutional democracy.
In this context, it is helpful to look at the sociological
underpinnings of these two forms of democracy. But
while the main discursive battle ground is still on the
national level, the European dimension does have an
impact – both for the supporters and the detractors of
a strong constitutional court, and for the struggle over
the meaning of democracy.
65 THE INTERNATIONALISATION AND
THE LEGALISATION OF PARLIa-
MENTARY DECISIONS TO GO TO WAR
Decisions to go to war have traditionally and constitutionally
been entrusted to the Executive. Recently,
however, Presidents and governments have sought
to involve national legislatures in decisions on use
of force to increase their legitimacy and address the
democratic deficit. In the UK, although decisions to go
to war are part of the Royal Prerogative, Westminster
Parliament has been consulted and has voted on deployment
of troops since Iraq 2003. Ever since, and especially
after 2013 when MPs rejected to support action
in Syria, Parliament’s role in decisions to go to war has
been hailed as desirable and as ensuring democratic
accountability of the Executive. Yet, little has been written
of the dangers of such parliamentary involvement
and of the strategic use in which Parliament (as well as
legislatures in other jurisdictions) have been engaged.
The panel seeks to address recent developments from
a constitutional and international legal perspective.
Participants Gavin Phillipson
Colin Murray
Aoife O’Donoghue
Jochen von Bernstorff
Name of Chair Veronika Fikfak
Room BE2 E44/46
Gavin Phillipson: The New War Powers Convention
in the UK
Professor Gavin Phillipson sets out the new War
Powers Convention in the UK, using exegesis, analysis
and normative argument for the importance of this
new role for the UK Parliament. It sketches the constitutional
significance of this development and argues
the case for further entrenching and clarifying the conventional
role of Parliament in conflict decisions. It also
takes issue with the arguments that such involvement
poses risks for the role of the UN and international law
in determining the legality of use of force decisions,
arguing that legality and democratic legitimacy are
concepts that have been, and should continue to be,
kept distinct.
Concurring panels 104
Colin Murray and Aoife O’Donoghue: Towards
Unilateralism? House of Commons Oversight of
the Use of Force
The second paper (Colin Murray and Dr Aoife
O’Donoghue) reveals the limits of parliamentary involvement,
in particular the strategic use with which
government seizes MPs for support and the international
and legal language in which it frames its case
for war. The paper uncovers how the involvement of
parliament and the manner in which the government
engages parliamentarians has implications for international
institutions and the international law of war.