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An Opportunity for Reflection – A Special Issue on “The Constitution of Canada: History, Evolution, Influence and Reform”

Abstract

Canada is and will for the foreseeable future be a peaceful and prosperous liberal democracy whose Constitution Act, 1867, now 150 years old as of 2017, has become a model for the modern world. The Constitution of Canada has exerted considerable influence on other countries, particularly since the coming into force of its Constitution Act, 1982, which included the celebrated Canadian Charter of Rights and Freedoms. Just as Canada drew from foreign and international experiences in drafting its Charter, the world has learned a great deal from Canada, not only as to rights protections but also as to the separation of powers, the judicial function, and the structure of government.

In light of these impressive achievements, an international symposium on the Canadian Constitution was held in Pisa at the Scuola Sant’Anna under the auspices of the Sant’Anna Legal Studies project and with the support of the DIRPOLIS (Law, Politics and Development) Institute at the Scuola Sant’Anna, the Canadian Embassy in Italy, and the International Association of Constitutional Law. This special issue collects some of the papers presented on that occasion.

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Provincializing Constitutions: History, Narrative, and the Disappearance of Canada’s Provincial Constitutions

Abstract

Constitutional scholarship in Canada since Confederation has been characterized by two primary narratives. The dualist narrative, which characterized constitutional scholarship between the late-nineteenth and mid-twentieth centuries, focussed on the parallel developments of provincial and federal constitutions. The monist narrative, which has become the dominant model of interpretation since the mid-twentieth century, focusses on the federal constitution as a singular foundation of constitutionalism in Canada. As a result of the shift from dualism to monism, provincial constitutions have become largely ignored in Canada and subsumed by the “mega-constitutional” politics of the federal constitution. This paper examines provincial constitutions to highlight the significant reorientation of constitutional scholarship in Canada over the past 150 years, which has become primarily focussed on post-Confederation constitutional history and written constitutionalism.

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The Spanish vision of Canada’s Clarity Act: from idealization to myth

Abstract

Since it was passed, the Clarity Act has been at the core of any secessionist debate in Canada and abroad. Although contested at home, the Clarity Act has earned worldwide prestige as the democratic standard that must be observed when a secessionist debate arises. In the last fifteen years Spain has experienced successive debates about the need to establish a mechanism of popular consultation to address secessionist claims in the Basque Country and Catalonia. Most political actors in favour of such consultations have expressed their will to import the Canadian Clarity Act as a tool to settle disputes on how to conduct a referendum. However, this deification of the Canadian example is, for the most part, based on a misreading of the Secession Reference, only taking into account certain passages while ignoring others. The emphasis tends to be made on the quantitative clear majority test, disregarding other factors. Hence, the aim of this paper is to study the causes of this deification of the Clarity Act in Spain, and its influence on the treatment of secessionist claims that the country is currently experiencing.

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Women’s rights and minorities’ rights in Canada. The challenges of intersectionality in Supreme Court jurisprudence

Abstract

After a discussion of the impact of the principle of equality, entrenched in the Charters approved in Canada since the 1867 British North American Act, this essay then focuses on the related Supreme Court’s adjudications. A brief analysis of the case-law concerning gender equality is followed by the discussion of cases of Aboriginal and Muslim women with the aim of assessing whether intersectionality represents for these groups of women a source of double discrimination. Brief concluding remarks discuss the challenges deriving from the different options for accommodating the principle of equality with cultural rights.

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Development of the Croatian National Security Strategy in the Hybrid Threats Context

Abstract

The development of the new National Security Strategy (NSS) of the Republic of Croatia, begun in November 2016, takes place in a radically different security environment compared to the first (and current) Croatian NSS published in 2002. This paper aims to provide incentives for potential adaptations to the approach and methodology used in Croatia’s NSS development, particularly in relation to hybrid warfare. Assuming that the hybrid adversary tends heavily to exploit the vulnerabilities of the targeted state and society, the paper addresses some of Croatia’s widely recognized weaknesses that should be taken into consideration in a threat assessment. As a conclusion, the paper proposes some recommendations, including the concept of societal resilience, related to ways to counter hybrid threats.

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International Security Presence in Kosovo and its Human Rights Implications

Abstract

In this article I will examine the powers and activities of NATO-led Kosovo forces (KFOR) and their impact on human rights protection in Kosovo. Through this examination, I seek to answer the following questions: which KFOR actions affected the human rights of Kosovars? Does KFOR carry out responsibilities and abide by the obligations normally imposed upon nation-states? And is there a solution available when the alleged violator is KFOR? KFOR is responsible for carrying out military tasks and for ‘shouldering’ UNMIK and local security forces in some civilian peace-building tasks. In the course of the exercise of its mandate, there were alleged complaints of human rights violations by KFOR. The legal implications of these alleged complaints against KFOR (in)actions will also be discussed.

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NATO in Europe: Between Weak European Allies and Strong Influence of Russian Federation

Abstract

After the collapse of the bipolar international order, NATO has been focused on its desire to eradicate Cold War divisions and to build good relations with Russia. However, the security environment, especially in Europe, is still dramatically changing. The NATO Warsaw Summit was focused especially on NATO’s deteriorated relations with Russia that affect Europe’s security. At the same time, it looked at bolstering deterrence and defence due to many concerns coming from eastern European allies about Russia’s new attitude in international relations. The Allies agreed that a dialogue with Russia rebuilding mutual trust needs to start. In the times when Europe faces major crisis from its southern and south-eastern neighbourhood - Western Balkan countries, Syria, Libya and Iraq - and other threats, such as terrorism, coming from the so-called Islamic State, causing migration crises, it is necessary to calm down relations with Russia. The article brings out the main purpose of NATO in a transformed world, with the accent on Europe, that is constantly developing new security conditions while tackling new challenges and threats.

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NATO’s ‘Out of Area’ Operations: A Two- Track Approach. The Normative Side of a Military Alliance

Abstract

Even though many would have bet on NATO’s demise after the Cold War and consider it now to be an archaic, antiquated alliance - as the reality that led to its formation no longer exists to justify its purpose - the need for collective defence in an increasingly complicated security environment stands as grounds for its ever-growing importance and its need to adapt to a spectrum of challenges that is becoming more diversified. NATO has long surpassed its military defensive role and has adapted to new challenges and new threats, while it has broadened its security agenda accordingly. The ‘out of area’ missions that dragged the Alliance out of its borders brought more meaning to the community of shared values, whilst allowing it to become both a security exporter, and a values and norms exporter. The International Security Assistance Force (ISAF) mission in Afghanistan comprises NATO’s transformation and adaptation to the new security challenges and its diffusion of norms in the ‘near abroad’.

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The “New Cold Warriors” and the “Pragmatics”: The Differences in Foreign Policy Attitudes towards Russia and the Eastern Partnership States among the NATO Member States from Central and South-Eastern Europe

Abstract

The post-communist NATO member states from Central and South-Eastern Europe (CSEE) comprise a group of 11 NATO/EU member states, from the Baltic to the Adriatic and Black Sea. The twelfth and thirteenth NATO member states from the region are Albania and Montenegro. The afore-mentioned NATO/EU member states have mostly shown a similar stance towards the Eastern Partnership Policy. However, since 2014, these states have shown more diverse stances, albeit declaratively supporting the anti-Russian sanctions. Due to the difference in stances towards Russia, the “New Cold Warriors” (Poland, Estonia, Latvia, Lithuania and Romania) and the “Pragmatics” (Hungary, Slovakia, Slovenia and Bulgaria), will maintain a mostly common course towards Russia and the Eastern Partnership states because they have to. The Czech Republic, although hosting a part of the US anti-ballistic missile shield, is not a genuine “New Cold Warrior”, while in 2016 Croatia effectively became one.

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The Phenomenon of Journalism-related Crimes Under the Circumstances of Hybrid War in Ukraine

Abstract

The article covers journalism-related crimes as a relatively distinct category of offences. The importance and purpose of isolating the concept of journalistic criminality under conditions of globalization in the modern theory of legal thought, the rapid development of the information society, and the embodied increase of the role of information and knowledge in human life are emphasized. Attention is paid to the factors affecting the dynamics and development of crimes in the area of professional activities of journalists, which primarily includes the environment of hybrid war. The destructive impact of the social consequences of journalistic crimes on society is evident in the case of Ukraine, which has suffered in the past and to this day experiences the latest information manifestations of hybrid war. The proposition to criminalize the intentional spreading of false information in the media by journalists is discussed. The reasons, basis and conditions for such criminalization are analysed. The existence of criminalization grounds for such an offence is substantiated in the article. However, conclusions are drawn on the inappropriateness of such criminalization due to its non-correspondence with certain conditions associated with difficulties in adjudication and with the problem of proving this type of behaviour. Other means of counteracting the deliberate dissemination of false information are considered.

Open access