ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

most important example is the European union (EU). In
the EU the Member States are under an obligation to follow
decisions made by international institutions, which
are outside the full control of each individual State. How
decision-making power can be delegated in this way
is often regulated in a State’s constitution. In Sweden,
rules concerning international delegation can be found
in Chapter 10 of the Instrument of Government. Needless
to say, this type of regulation is of great importance,
inter alia because it may allow deviations from other
constitutional rules. This paper analyses – from a national
and an international law perspective – how international
delegation is regulated in the Swedish constitution,
in an attempt to draw some general conclusions
concerning the construction of this type of regulation.
Lisa L. Miller: Back to Basics: Constitutions for
Ordinary People
This paper argues for more robust scholarly attention
to how constitutional structures shape ordinary
political dynamics. We are especially interested in how
constitutional rules and institutions enable or disable
mass popular control over political decision-making. We
begin by highlighting the degree to which constitutional
scholarship has focused on legal rules, legal institutions
and democratic constraint, with far less attention to how
legal structures can increase the capacity of ordinary
people to challenge prevailing power. We then ask what
key provisions constitutions would need in order for
regular citizens to mount sustained political pressure
for the creation and maintenance of public goods. We
emphasize the need to understand the manner in which
different constitutional structures facilitate broad collective
action in the public interest and limit the number
of opportunities for small groups to veto the interests
of the many. We illustrate the intersection of constitutional
structure and the political capacity of ordinary
people through a brief exploration of the U.S. case.
Maxim Tomoszek: Accountability in Constitution:
Purpose Alternatives and Efficiency
This paper will address three questions: Through
which tools do constitutions achieve accountability?
How efficient are these tools in ensuring public control
of power? How universal or country-specific are answers
to these questions? First, the paper will overview the
tools of accountability in comparative perspective, dividing
them in three categories – legal (for example judicial
review), political (for example parliamentary debate) and
social (for example investigative journalism or public
debate). Then, using the context of Visegrad countries
(Czech Republic, Hungary, Poland and Slovakia) the
efficiency of particular tools of accountability will be
compared with the aim to explain latest constitutional
developments in analyzed countries, especially interferences
of governments with judiciary (in particular constitutional
courts) and freedom of media. The presentation
will conclude by discussing possible constitutional
measures available for strengthening accountability.
74 EQUALITY, VULNERABILITY AND
MIGRANT MEMBERSHIP
This panel explores how the increasing use of the
concepts of equality and vulnerability in international
human rights law affects the rights of migrants in immigrant
receiving states. The papers in this workshop
analyze and compare the way these concepts are used
in legal reasoning and relate them to theoretical debates
on citizenship and migrant membership.
Participants Karin de Vries
Lieneke Slingenberg
Bas Schotel
Sylvie Da Lomba
Corina Heri
Name of Chair Karin de Vries and
Lieneke Slingenberg
Room UL6 3119
Karin de Vries and Lieneke Slingenberg:
Citizens’ or residents’ rights? Territoriality,
Membership and legal status in the Article 14
case law of the ECtHR
In her work on the rights of immigrants, Bosniak
discerns two ways of obtaining rights: rights can derive
from formal immigration status under law or from territorial
presence. Under the ‘status-based approach’
rights are based on legal qualifications and political
consent, whereas under the territorial conception of
rights, are based on a fact of social reality by stressing
the significance of physical presence in the national
territory. While she acknowledges that the territorial
model begs its own questions and has its own hangups,
she stresses that ethical territoriality still represents
the best argument for immigrants’ rights that we
have. In this paper, we would like to examine to what
extent this idea of ‘ethical territoriality’ is reflected in
the ECtHR’s case law on discrimination on the ground
of nationality and immigration status in the field of immigrant’s
material rights.
Bas Schotel: Refugee Protection beyond Human
Rights. Asylum as a negative duty
Today asylum and international protection are primarily
understood as positive duties: receiving states
are supposed to actively do stuff (eg provide for shelter
and housing, food, health care, safety, education,
etc.). By contrast, this paper explores the idea that
asylum should be construed as primarily a twofold
negative duty for the target state: duty not to prevent
refugees from accessing the territory and duty not
to expel from the territory. Understanding asylum as
a negative duty makes clear that not offering asylum
often involves many active coercive measures. From
a practical legal perspective it is easier to apply the
proportionality test to active coercive measures (eg
detention, construction of a border fence), than to
Concurring panels 115