Available in Russian
FEBRUARY – MARCH • 2023
Armenia, China, Estonia, France, Georgia, Germany, Mexico
FOCUS: LEGAL TRANSFORMATION IN CENTRAL ASIA
THE NATIONAL-STATE DEMARCATION OF 1924 AND ITS INTERNATIONAL LEGAL CONSEQUENCES
In 1924, the Soviet government carried out a very important measure — national delimitation. Its essence is the determination of dominant ethnic groups, territorial delimitation between them, state building, and development of the economy and national culture. The result of this delimitation was the creation of five Soviet Republics and the Karakalpak Autonomous Soviet Socialist Republic. Regardless of its overall effect, the delimitation created the prerequisites for interstate and internal conflicts related to territorial claims, the regime of enclaves, and protection of minorities’ rights. From a legal point of view, the results of national delimitation cannot be called into question later: in accordance with the principle of uti possidetis juris, the boundaries of successor states should follow the former administrative boundaries. The application of this principle, however, appears to be problematic: minorities which gravitate toward a neighboring state may challenge the results of delimitation, while the elites of new states often pursue a policy of national unification, i.e., position themselves as defenders of a national culture which is threatened by minorities. Applied to Central Asia, the principle of uti possidetis seems to be the preferred solution, generally accepted by all the states of the region. Some problems, however, do exist. The most acute of these is the problem of enclaves, which in relations between Kyrgyzstan and Tajikistan has become a chronic one. This problem should be solved by means of international law. There are several options: exchange of territories, establishment of easements, creation of a special zone, and establishment of institutional mechanisms for rapid response. The author contends that a bilateral format is insufficient and, therefore, settlements should be sought through the participation of third parties, conciliation commissions, and mediator states. The use of conciliation procedures would provide a qualified and objective assessment of the situation, allow the parties to “save face”, reduce the degree of confrontation, move the conflict into a procedural phase, and facilitate a settlement based not only on legal considerations. A common solution to the problems associated with delimitation (both present and future) could be interstate integration. There are a number of serious obstacles to such integration, but they do not seem insurmountable.
CONSTITUTIONAL CONSTRUCTION IN CENTRAL ASIA: FROM MANEUVERING BETWEEN GLOBAL AND NATIONAL PRIORITIES (CURRENT CONSTITUTIONAL REFORMS IN KYRGYZSTAN, KAZAKHSTAN AND UZBEKISTAN)
Analysis of the constitutional reform programs of three countries in Central Asia in 2021–2023 reveals two opposite trends. On the one hand, these reforms symbolize a modernization impetus – the devotion of elites to integration of their countries into the currently forming system of global constitutionalism. On the other hand, a reform strategy cannot ignore an opposite trend in global (transnational) legal development, that of fragmentation of global legal regimes in order to find new sources for legitimacy and protection from the new global challenges of identity, economic crisis, pandemic, ecological disaster, and cultural, confessional and geopolitical turbulence. These challenges combine with internal political instability arising from issues such as cross-confessional, national, and ethnic conflicts and coinciding with the natural process of power transition from the first generation of political leaders to the next one. The real dilemma for reformers is how to modernize society without endangering social and political stability and also preserving the existing leadership’s power. The pragmatic solution of this dilemma entails compromises between idealism and realism in constitutional construction, between legal modernization and re-traditionalization, and between liberal democracy and guided democracy. From this point of view, constitutional amendments embody the compromises made by elites in choosing between opposing policies in such vital areas as state-society relations, forms of government, construction of leadership, and an accepted formulation of legitimacy. This approach, which may reflect the reformers’ “constitutional hypocrisy”, opens the path to self-contradictory constitutional innovations, pendulum swings between reform and counter-reform, hybrid institutional constructions, and pragmatic calculations of benefits and losses in the constitutional power game. Constitutional pragmatism excludes fully blossomed democracy and tends to creation of a more rational bureaucratic state. Authoritarian legalism is, perhaps, a new synthesis of two opposing values – the demand for a lawful order and the demand for stable and predictable development. In the framework of this political constitutionalism, permanent constitutional maneuvering means that the political regimes of Central Asia face a difficult search for an adequate adaptation to the standards of global constitutionalism.
WELFARE STATE AND LAW
MIGRATION AS A CHALLENGE TO THE SCANDINAVIAN WELFARE STATE
The social-democratic model of social security in Scandinavian countries is aimed at providing the population with broad social rights and is based on an active redistributive policy. This policy is based on the principle of social solidarity, which implies the participation in financing the social protection system, to one degree or another, by all citizens, who make contributions in proportion to their capabilities. Almost any person, including a migrant legally residing in one of these countries, can count on social protection. In the context of globalization, the financial crisis, and significant demographic changes, the most important of which is the aging of the population, the Scandinavian welfare state faces a number of considerable problems. One of these is the expanding flow of migrants, which increases the ethnic heterogeneity of society. It is not easy for newly arrived migrants to succeed in the labor market. They face a kind of “protective barrier” in an economy based primarily on knowledge, where the use of cheap labor has become unprofitable. Migration also puts significant pressure on Scandinavian pension systems, as migrants often do not generate enough taxable income to cover their future pensions. Considering migration as the most important challenge to the welfare state and its values, the Scandinavian countries are tightening the rules for accepting migrants and their subsequent stay on their territory. An “activation policy” is being pursued, based on the introduction of a principle of active citizenship and a greater linkage of human well-being to specific work activities. There is a kind of “contractualization” of social relations going on, whereby certain benefits are provided to individuals only in exchange for their fulfillment of certain clearly fixed conditions. This raises the question of the need to revise the policy of multiculturalism and to move towards civil integration aimed at developing the functional autonomy of migrants and their resilience in the face of various social risks.
LAW IN THE DIGITAL AGE
DIGITAL CITIZENSHIP AND CONSTITUTIONAL CHALLENGES IN THE INFORMATION AND ALGORITHMIC SOCIETY
The article discusses the algorithmic and inclusive paradigm of constitutionalism and constitutional law; the conceptual foundations of digital citizenship and the constitutional challenges of the information and algorithmic society in the context of international scholarly discussion in comparative constitutionalism and jurisprudence, information law, and information technology law; scholarly and interpretative approaches to understanding digital citizenship; and the vectors of development and transformation of the institution of citizenship in constitutional and legal communication and in the theory and practice of constitutional construction. The article analyzes advances in the work of constituent authorities in the first two decades of the 21st century in a comparative constitutional context through forms of imperative and deliberative democracy; reveals the role of citizenship and information technologies in the development of forms of legal and political participation in an algorithmic society; and the prospects for interaction of digital citizenship and digital, information constitutionalism, on the one hand, and of digital citizenship and the system of constitutional and information law, on the other hand. The study highlights the transformation of the institution of citizenship as a political and legal phenomenon under the influence of new technologies. The nature of digital citizenship in the study is discussed from the standpoint of improving the processes of involvement in constitutional mobilization and constitutional modernization. Constitutional scholarship is beginning to discuss the problems of development of an algorithmic society in the language of constitutional law and to offer some constitutional legal answers to solve these. The doctrine of constitutionalism, like the doctrine of citizenship, is under pressure from the IT revolution due to the use of technology in the public and private spheres generated by the information and algorithmic society. The article uses deliberative and epistemological approaches and methods of formal-legal, concrete-historical, and comparative constitutional-legal and complex analyses. The results of these show that the institution of digital citizenship is the result of convergence of information and digital technologies and of the forms of citizen participation in political and other spheres, constitutional development, and constitutional changes. In conclusion, measures are proposed for the institutionalization and state-legal formulation of digital citizenship and for improvement of legal regulation of the development of the information society in Russia.
METHODOLOGY OF CONSTITUTIONAL RESEARCH
EMPIRICAL RESEARCH IN COMPARATIVE CONSTITUTIONAL LAW: THE COOL KID ON THE BLOCK OR ALL SMOKE AND MIRRORS?
In recent years, we could observe an explosion of empirical research in the field of comparative constitutional law. This contribution seeks to evaluate the current state of affairs. It consists of four parts. The first part provides a basic introduction to quantitative empirical legal research. It identifies certain methodological challenges and discusses how to address them. The second part analyzes the literature on the institutional design choices that are made in constitutions. There is research both on the consequences of design choices and on the reasons why specific design features were included in the constitution. The third part looks at the empirical literature regarding constitutional rights, which mainly deals with the diffusion and with the effectiveness of individual rights enshrined in constitutions. In both parts, we do not aim at providing comprehensive reviews of the empirical research on comparative constitutional law. Instead, we concentrate on select studies that we consider to be particularly important and influential. The fourth part, finally, concludes by analyzing how the challenges that are particular to empirical research in constitutional law could be addressed. We find that the empirical identification strategies of many of the analyzed studies face significant unresolved challenges. These challenges concern, inter alia, the conceptualization of the measured variables and unobserved variable biases. For this reason, we should only have limited confidence in their results. Nevertheless, we argue that empirical research in comparative constitutional law is of fundamental importance. If comparative constitutional law scholars abandoned quantitative empirical projects, they would throw out the baby with the bathwater. Empirical research not only draws our attention to issues that would otherwise elude our view, but also gives us the chance to refine the methodology in order to develop better strategies to answer some of the decisive questions preoccupying comparative constitutional law scholarship. We therefore advocate not less, but more empirical research, while, at the same time, calling for more methodological pluralism.
HUMAN RIGHTS AND THEIR LIMITATIONS DURING COVID-19 (NEW ZEALAND EXAMPLE)
In December 2019 the first cases of coronavirus infection were reported. In March 2020 the World Health Organization (WHO) declared the outbreak a pandemic. The widespread emergency situation required a rapid response from all existing states of the world. WHO gave general recommendations and specific, more detailed methods were determined by the countries individually. The choice of technologies depended on many factors, both objective (rate of spread of the virus in certain territories, population density) and subjective (reaction of the population, material resources). This text focuses on the limits of basic human rights restrictions during a pandemic, using the approach developed in New Zealand between 2020 and 2022 as an example. In the context of international discussions, New Zealand’s approach has elicited mixed reactions, both critically negative and completely favorable, due to its rigidity and somewhat radical nature. At this point, there is no unequivocal answer to the questions raised by the critics. But it is possible to consider both the measures taken by the state and the results to which they led. The author examines in detail the various methods that New Zealand chose to counteract the spread of the new coronavirus infection (“alert level framework”, “traffic light system”, “MIQ”, “support bubble”), taking into account both quantitative and qualitative results already available in the overall global pandemic picture. Using logical and comparative analyses, the author draws attention to the fact that more stringent measures against the spread of the virus may indeed be more effective in reducing the rate of spread and the number of cases, but at the same time, they may also have a negative impact on the protection of fundamental human and civil rights and freedoms. This study highlights the importance of finding a new balance between individual rights and freedoms and the public interest in healthcare, and draws attention to the fact that only a comprehensive approach and flexible measures in the long term will allow effective combat with the spread of the virus (and possibly with other biologic/environmental phenomena) without noticeable negative interference in individual rights and freedoms.