ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

Jochen von Bernstorff: Ironic Constitutionalism
The third paper (Professor Jochen von Bernstorff)
then maps out how the developments seen in the UK
are part of a more global narrative governments in different
jurisdictions are using to persuade their legislatures
regarding the use of force. Specifically, it shows
how increasingly these creative arguments about the
content of international law on war are often unilaterally
expanding the law on use of force in the context of
targeted killings and use of drones.
66 THE NORMATIVE FOUNDATIONS
OF DEFERENCE IN EUROPEAN
CONSTITUTIONALISM
Deference has become a central feature of European
judicial review. Courts across the continent – in the
EU, ECHR, and national legal orders – have started to
emphasize the need to exercise deferential scrutiny,
mainly through the margin of appreciation doctrine.
Is this a welcome development? The literature is torn.
Among human rights scholars, the margin of appreciation
has attracted harsh criticism. It has been called
a ‘Trojan horse’, which ‘jeopardizes’ the rights and
freedoms guaranteed by the ECHR. Among EU legal
scholars, in contrast, it has been almost unanimously
praised as a tool that ensures respect for national
values and remedies the problems of legal pluralism.
What explains these contradicting views? Are
doctrines like the margin of appreciation normatively
desirable? Under which circumstances, if at all, is it
appropriate for courts to defer to other actors? These
are the questions that will be tackled in this panel.
Participants
Name of Chair
Room
Matthias Klatt
François-Xavier Millet
Jan Zgliński
Bosko Tripkovic
Bosko Tripkovic
BE2 139a
Concurring panels 105
Matthias Klatt: How to Escape from the Bermuda
Triangle of Courts
Among the various normative problems of European
Constitutionalism, the relationship between the
competences of national constitutional courts, the
ECJ, and the ECtHR is vital. It has been described as
a ‘Bermuda Triangle’ in which an effective and transparent
protection of fundamental rights is bound to
disappear. This paper provides taxonomy of the various
conflicts arising in this field, thus clarifying the
different sources and the character of conflicts. It then
discusses several means of solving them, including
deference, and their respective advantages and drawbacks.
Lastly, a new theory of solving the competence
conflicts is developed in detail, drawing to recent case
law from the ECJ and the German FCC.
François-Xavier Millet: From Sovereignty to
Constitutional Identity(ies)
Over the past ten years, there has been an emergence
of the narrative of ‘constitutional identity’ in Europe.
While scholars have used constitutional identity
in order to assert a certain European identity, the constitutional
courts have used it as a shield against further
integration. How do these competing discourses
relate to one another? The contribution asks whether
the meaning of constitutional identity is derived from
these divergent uses or whether it present an onto-