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The Unamendability of Amendable Clauses: The Case of the Turkish Constitution

Part of the Ius Gentium: Comparative Perspectives on Law and Justice book series (IUSGENT,volume 68)

Abstract

Although it has not been constitutionally empowered to do so, the Turkish Constitutional Court has exercised substantive review of constitutional amendments under three different constitutional settings, striking down amendments to the normally amendable provisions of the Turkish constitution. In doing so, it relied upon the unamendability clauses. The Court created an intra-constitutional hierarchy based on the unamendable clauses and exercised substantive review of constitutional amendments to check whether amendments violated the principles laid down in the unamendable clauses. This chapter looks at whether this judicial practice of identifying a constitutional core and exercising substantive review of constitutional amendments on this basis can find a justification in Carl Schmitt’s distinction of the constitution and constitutional laws. In the first part, it argues that while Schmitt’s distinction, which is based on democratic decisionism, might justify the Court’s reasoning that there are limits to constitutional amendment; his understanding of the guardian of the constitution is incompatible with the judicial oversight of the constituent decision. What makes Schmitt’s radical democratic constitutional theory consistent is his conception of the popularly elected head of state as the guardian of the constitution. Such conceptual justification of constitutional unamendability is not compatible with judicial review of constitutional amendments. In the second part, the chapter analyses all of the unamendability cases the Turkish Constitutional Court has decided and explains the Court’s arguments with regard to its authority over constitutional amendments. The chapter concludes by explaining that even if a Schmittian account of the constitution is adopted, the unamendability clause in the Turkish constitution remains a merely political and not a judicial check on the constitutional amendment power.

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Notes

  1. 1.

    E. 2008/16, K. 2008/116, 5 June 2008, 45/2 AYMKD 1195–1253; E. 2010/49, K. 2010/87, 7 July 2010, 47/2 AYMKD 1069–1237.

  2. 2.

    See Özbudun (2009), p. 533, Saygılı (2010), p. 127, Roznai and Yolcu (2012), p. 175, Can (2013), pp. 271–292.

  3. 3.

    Can (2013), pp. 261–269.

  4. 4.

    Saygılı (2010), pp. 135–139.

  5. 5.

    Zühtü Arslan, who has been appointed as a member of the Turkish Constitutional Court in 2012 and has been elected as its president in February 2015, had written following the headscarf decision of 2008 that the TCC acted as a ‘positive constitution-maker’, rather than a ‘negative legislator’ in Kelsen’s terms, and borrowing the term from Alec Stone Sweet, called the judgment a ‘juridical coup d’état’. See Arslan (2009), p. 9. For Alec Stone Sweet on the concept of juridical coup d’état, see Sweet (2007), p. 10.

  6. 6.

    Albert (2010), pp. 663, 667.

  7. 7.

    Schmitt (1996), p. 48. For the translation of parts of this work, see Vinx (2015).

  8. 8.

    Kelsen (1957), p. 279.

  9. 9.

    Kelsen (2001), p. 198.

  10. 10.

    Lindahl (2007), p. 13.

  11. 11.

    Schmitt (2008), p. 96.

  12. 12.

    Ibid., p. 67. Also, see Loughlin (2010), p. 214.

  13. 13.

    Schmitt (2008), pp. 67–68.

  14. 14.

    Ibid., p. 71.

  15. 15.

    Ibid., p. 74.

  16. 16.

    Ibid., pp. 89–90.

  17. 17.

    Ibid., p. 90.

  18. 18.

    Ibid., p. 93.

  19. 19.

    Ibid., p. 75.

  20. 20.

    Ibid., p. 76.

  21. 21.

    Kelsen (1992), pp. 59–60.

  22. 22.

    Kalyvas (2008), p. 139.

  23. 23.

    Schmitt (2008), p. 125.

  24. 24.

    Ibid., p. 150.

  25. 25.

    Sieyès (2003), p. 136.

  26. 26.

    Schmitt (2008), pp. 147–148.

  27. 27.

    Ibid., (2008), pp. 150–158.

  28. 28.

    Ibid., p. 78. Schmitt writes that democracy, one of the most fundamental political decisions in the Weimar Constitution, found its expression in the preamble. See ibid., p. 77. This is striking as the preambles of the Turkish constitutions included many vague principles and ideological statements and the unamendable Article 2 of the 1982 Constitution even makes a reference to the ‘fundamental principles’ in the preamble by stipulating ‘the Republic of Turkey is … based on the fundamental tenets set forth in the preamble’. On reference to the preamble in the Turkish context, see Sects. 3.2 and 3.3.

  29. 29.

    Ibid., p. 152.

  30. 30.

    See Waldron (2006), p. 1346, Bellamy (2007), pp. 26–48. These accounts, however, are very different to that of Schmitt’s as they are largely defences of parliamentary democracy, whereas, as explained below, Schmitt was a critic of parliamentary democracy as well as judicial review of legislation.

  31. 31.

    Dworkin (1996), pp. 15–38, Ely (1980), Raz (2009), pp. 361–364, Habermas (1996), pp. 238–244.

  32. 32.

    Kelsen (2015), pp. 22–78.

  33. 33.

    Ibid., pp. 22–25.

  34. 34.

    Ibid., p. 25.

  35. 35.

    Ibid., pp. 71–72.

  36. 36.

    Ibid.

  37. 37.

    Schmitt (1996), p. 155.

  38. 38.

    Ibid.

  39. 39.

    Ibid., p. 37.

  40. 40.

    Ibid., p. 38.

  41. 41.

    Democratic decisionism is ‘a theory according to which the people remain completely at liberty to change the political order without having to appeal to ultimate moral, religious or philosophical foundations’ see Müller (2003), p. 128.

  42. 42.

    Schmitt (2008), p. 126.

  43. 43.

    Schmitt (1985), (1996), pp. 73–91.

  44. 44.

    Schmitt (2005), p. 6.

  45. 45.

    The Indian Supreme Court’s creation of the basic structure doctrine is the typical example. On the basic structure doctrine, See Chandrachud (2018). The Indian example has been a model for many other jurisdictions. See Roznai (2013), pp. 657, 690–699.

  46. 46.

    For instance, John Rawls advocated that the Supreme Court of the USA should invalidate constitutional amendments violating what he calls ‘constitutional essentials’ in the USA constitution. According to Rawls, basically, constitutional essentials include the fundamental principles as to the political process and basic political rights. See Rawls (2005), p. 232.

  47. 47.

    Schmitt (1996), p. 131.

  48. 48.

    Ibid., p. 89.

  49. 49.

    Schmitt (1985), p. 34.

  50. 50.

    Ibid., p. 56.

  51. 51.

    Ibid., p. 15.

  52. 52.

    Ibid., p. 50.

  53. 53.

    ‘Both the relatively static and permanent aspects of the presidency (election for seven years, difficulty of recall, independence from changing parliamentary majorities) as well as the character of the president’s competences (the powers under article 45 and 46 of the constitution of the Reich, the dissolution of the Reichstag under article 25 and the initiation of a popular referendum under article 73 of the constitution of the Reich, the preparation and promulgation of statutes under article 70, federal execution and protection of the constitution in accordance with article 48)’. See Schmitt (1996), p. 158.

  54. 54.

    Ibid.

  55. 55.

    Ibid., p. 159.

  56. 56.

    Arato (2011), pp. 324, 336–337.

  57. 57.

    Schmitt (2013), p. 208.

  58. 58.

    Vinx (2016), pp. 34–49.

  59. 59.

    The text of this current unamendability clause is as follows:

    Article 4—The provision of Article 1 regarding the form of the State being a Republic, the characteristics of the Republic in Article 2, and the provisions of Article 3 shall not be amended, nor shall their amendment be proposed.

  60. 60.

    A recent exception is the debate on the revocation of the unamendable clauses in the context of writing a new constitution in the Constitution Reconciliation Committee, which was set up in 2011 to write a new constitution but failed to produce a full draft and dissolved by the end of 2013. This was not a judicial but a parliamentary debate. For a study of this debate in the Committee, see Yegen (this volume).

  61. 61.

    There have been, however, two amendments in 1995 and 2001 to the Preamble of the 1982 Constitution, the fundamental principles in which are regarded as unamendable based on the reference to it in the unamendable Article 2. Article 2 stipulates that the state is ‘based on the fundamental tenets set forth in the Preamble’ and as Article 4 prohibits amendments to the ‘characteristics of the Republic’ found in Article 2, the fundamental principles found in the Preamble are regarded to be included in the unamendability protection. These two amendments to the Preamble mainly aimed to remove the remarks that justified the military coup of 1980, as well as to relatively tone down the chauvinistic language of the Preamble. In any event, the amendments were not challenged before the Constitutional Court and did not prove to be contentious from the perspective of constitutional unamendability. On these amendments, see Oder (2009), pp. 264–266.

  62. 62.

    Law No 364 dated 29 October 1923.

  63. 63.

    Onar (2003), pp. 165–195.

  64. 64.

    The relevant provision is as follows: Article 147—The Constitutional Court shall review the constitutionality of laws and the rules of procedure of the Turkish Grand National Assembly.

  65. 65.

    Article 155—Proposals for the amendment of the Constitution may be submitted in writing by at least one-third majority of the plenary session of the Grand National Assembly of Turkey, but may not be debated under urgency. An amendment proposal shall be adopted by a two-thirds majority vote of the plenary session of each legislative body. Outside of the requirements of paragraph 1, the debate and adoption of proposals for the amendment of the Constitution are subject to the provision governing the debate and enactment of laws.

  66. 66.

    E. 1963/173, K. 1965/40, 26 September 1965, 4 AYMKD 329 (my translation).

  67. 67.

    Article 9—The provision of the Constitution establishing the form of the State as a Republic shall not be amended nor shall its amendment be proposed.

  68. 68.

    Law No 1188 dated 12 November 1969.

  69. 69.

    E. 1970/1, K. 1970/31, 16 June 1970, 8 AYMKD 313–340.

  70. 70.

    Ibid., p. 322.

  71. 71.

    Ibid., p. 323 (my translation).

  72. 72.

    Ibid., pp. 330–332.

  73. 73.

    Law No 1254 dated 17 April 1970.

  74. 74.

    E. 1970/41, K. 1971/37, 13 April 1971, 9 AYMKD 416–449.

  75. 75.

    Ibid., pp. 428–429 (my translation).

  76. 76.

    Kubalı (1971), p. 102 cited in Gözler (1999), pp. 227–228, Serim (1977), pp. 33, 34.

  77. 77.

    Serozan (1972), pp. 135, 138.

  78. 78.

    See Erdal (2008), pp. 165, 181. Erdal refers to the oath in the later law in his article. In the Law on the Constitutional Court at that time, the oath was as follows (Law No 44 dated 22 April 1962, Art 10/2): ‘I vow upon my honour to protect the Constitution of the Republic of Turkey, which finds it true guarantee in the hearts and wills of the Turkish citizens; and to carry out my duty rightly, impartially, and with respecting righteousness, and by only observing the orders of my conscience. [emphasis added]’ (my translation). The emphasised clause is borrowed into this law from the Preamble of 1961 Constitution. I think this oath rather signals the prioritisation of democratic choices to judicial decisions.

  79. 79.

    See Eroğul (1974), pp. 164–168, Özbudun (2010), p. 174, Onar (2003), pp. 141–142, Turhan (1976), pp. 63, 99.

  80. 80.

    Özbudun (2010), p. 174.

  81. 81.

    Onar (2003), p. 138, Eroğul (1974), p. 164.

  82. 82.

    Özbudun (2010), p. 175, Can (2013), p. 158. The spokesperson for the Constitution and Justice Committee in the Senate expressed that the reason for this amendment was to limit the TCC’s authority to formal review of constitutional amendments as to the regularity of the specific proposal, debate, and approval terms. See Cumhuriyet Senatosu Tutanak Dergisi, Cilt 67, 115. Birleşim, 14 September 1971, 505 www.tbmm.gov.tr/tutanaklar/TUTANAK/CS__/t10/c067/cs__10067115.pdf.

  83. 83.

    Law No 1488 dated 20 September 1971.

  84. 84.

    Can argues that this shows the TCC’s earlier conclusion that constitutional amendments are ‘laws’ is legally and politically invalid, whereas Gözler emphasises that the Court’s reasoning regarding its interpretation of the term ‘law’ can be criticised, but as the decisions of the Court are binding, their validity cannot be challenged. See Can (2013), pp. 159–160, Gözler (2008), p. 24.

  85. 85.

    E. 1973/19, K. 1975/87, 15 April 1975, 13 AYMKD 403–478.

  86. 86.

    Law No 1699 dated 15 March 1973, Art 4.

  87. 87.

    Article 2—The Republic of Turkey is a national, democratic, secular and social State governed by rule of law, based upon human rights and the fundamental tenets set forth in the Preamble.

  88. 88.

    E. 1975/167, K. 1976/19, 23 March 1976, 14 AYMKD 118–160.

  89. 89.

    With a slightly different composition, the TCC reviewed the very same constitutional amendment again in less than 7 months and invalidated it. Following its rationale regarding Article 9 being a formal rule with the prohibition on proposal, the Court exercised formal review as including the proposability test, and concluded this time that the amendment was unconstitutional, as it infringed upon the essence of the right to property, the principle of equality, and the principle of democratic state governed with the rule of law. See E. 1976/38, K. 1976/46, 12 October 1976, 14 AYMKD 252–286.

  90. 90.

    E. 1976/26, K. 1976/47, 12 October 1976, 14 AYMKD 287–300.

  91. 91.

    E. 1976/43, K. 1977/4, 27 January 1977, 15 AYMKD 106–131.

  92. 92.

    E. 1977/82, K. 1977/117, 27 September 1977, 15 AYMKD 444–464.

  93. 93.

    E. 1972/56, K. 1973/11, 6 March 1973, 11 AYMKD 141 (my translation).

  94. 94.

    Coşkun San wrote a detailed account of why the constitutional amendment power is substantively limited. He argued that the constitutional amendment power is conceptually limited and cannot amend the constitution in a way that destroys the constitutional amendment rules, unamendable clauses, fundamental rights and freedoms, political rights and parliament, separation of powers and supra-constitutional limits. See San (1974), pp. 77–89. On the Turkish cases, see Tosun (1978), p. 21, Serim (1977).

  95. 95.

    Onar (2003), p. 146. Özbudun criticises the Court’s approach for four reasons. Firstly, since it is only the republican form of the state that is protected in Article 9, it was a mistake to also include the characteristics of the republic as protected principles, as the constituent power would have expressly stated it had it wished to include them. Secondly, it is impossible to avoid substantive review when deciding whether a constitutional amendment is in line with the characteristics of the republic. Thirdly, the meanings of the enumerated characteristics of the republic are so vague that the Court has too wide a discretion. Lastly, in times of struggle between constitutional courts and the majority of the people, experience shows that the authority of the former is at the risk of being taken away. See Özbudun (2010), pp. 177–178. Also, for a critical account of unamendability with a wide scope in the context of the Bangladeshi constitution, see Hoque (this volume).

  96. 96.

    Turhan (1976), p. 100.

  97. 97.

    Extension of the scope of unamendability while simultaneously restricting the TCC’s authority over constitutional amendments has been regarded by many as an incoherence. See Onar (2003), pp. 156–164. Indeed, this seems to be an incoherency from a legal constitutionalist perspective, but as touched upon below, unamendability clauses without a judicial guarantee may be justified in terms of political constitutionalism.

  98. 98.

    Law No 3361 dated 17 May 1987.

  99. 99.

    E. 1987/9, K. 1987/15, 18 June 1987, 23 AYMKD 282–294.

  100. 100.

    This was deemed necessary as a result of the TCC’s striking down the presidential election in the Turkish Parliament in 2007. See Özbudun (2014), pp. 299–300.

  101. 101.

    Law No 5678 dated 31 May 2007.

  102. 102.

    E. 2007/72, K. 2007/68, 5 July 2007, 44/2 AYMKD 1053–1108.

  103. 103.

    Law No 5697 dated 16 October 2007.

  104. 104.

    E. 2007/99, K. 2007/86, 27 November 2007, 45/1 AYMKD 429–456.

  105. 105.

    The text of the amendment was as follows: Article 1—The phrase ‘and in benefiting from all kinds of public services’ is added after the phrase ‘in all their proceedings’ in Paragraph four of Article 10 of the Constitution of the Republic of Turkey dated 7.11.1982 and with Law No. 2709. Article 2—The following paragraph is added after Paragraph six of Article 42 of the Constitution of the Republic of Turkey. ‘No one can be deprived of the right to higher education due to any reason other than expressly written in the law. The limits of the exercise of this right shall be determined by law.’ Article 3—This Act shall come into force on the date of its promulgation and voted in whole if put to referendum.

  106. 106.

    General Reasons for this amendment can be reached at www2.tbmm.gov.tr/d23/2/2-0141.pdf. accessed 1 August 2016.

  107. 107.

    E. 2008/16, K. 2008/116, 5 June 2008, 45/2 AYMKD 1195–1253.

  108. 108.

    Ibid., p. 1231 (my translation).

  109. 109.

    Ibid., p. 1232 (my translation).

  110. 110.

    A linguistic explanation must be made here. In Turkish, the clause in Article 148 reads ‘teklif ve oylama çoğunluğuna ve ivedilikle görüşülemeyeceği şartına uyulup uyulmadığı’, which includes three elements as the criteria for formal propriety: (i) teklif çoğunluğu (majority for proposal), (ii) oylama çoğunluğu (majority for voting), (iii) ivedilikle görüşülemeyeceği (not to be debated under expedited procedure). The TCC interprets ‘teklif ve oylama çoğunluğu’ not as ‘the majority for proposal and voting’, but as ‘the proposal, and the majority of voting’, therefore applying the regularity of proposal as an extra criterion. While Oder thinks this reasoning of the Court is at odds with Article 148, she argues that the systematic and teleological interpretations of the constitution support the Court’s practice, when the lex specialis nature and the objective telos of the unamendability clause are considered. See Oder (2010), p. 54. On Oder’s cautious justification for the judicial enforceability of Article 4, see Sect. 4 of this chapter below.

  111. 111.

    For the discussion of the substantive review in this decision, which is left out here as it is out of the scope of this chapter, see Özbudun (2014), pp. 304–306, Roznai and Yolcu (2012), pp. 202–206, Jacobsohn (2010), pp. 327–337, Hirschl (2010), pp. 157–159, Can (2013), pp. 287–292. For a test of the TCC’s rationale in the Headscarf Decision by Hans Kelsen’s Grundnorm and HLA Hart’s rule of recognition, see Acar (2009), p. 141.

  112. 112.

    E. 2010/49, K. 2010/87, 7 July 2010, 47/2 AYMKD 1069–1237.

  113. 113.

    For an overview of this constitutional amendment package, see Gönenç (2010).

  114. 114.

    E. 2010/49 (2010) 1155 (my translation).

  115. 115.

    Roznai and Yolcu (2012), pp. 197–198, Özbudun (2009), p. 537, Can (2013), pp. 278–287, Abdulhakimoğulları and Baykan (2012), pp. 17, 32, Aydın (2010), pp. 215, 238, Köker (2010), pp. 328, 335.

  116. 116.

    Saygılı (2010), p. 136. Kemalism is the founding ideology of the Republic of Turkey, named after Mustafa Kemal Atatürk, the founder of the Republic. See Tunçay (2016).

  117. 117.

    Köker (2010), p. 335.

  118. 118.

    European Commission for Democracy Through Law (Venice Commission), ‘Report on Constitutional Amendment’ CDL-AD(2010)001, para 234 www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2010)001-e. 1 August 2016.

  119. 119.

    Ibid., para 250.

  120. 120.

    E. 2016/54, K. 2016/117, 3 June 2016 http://kararlaryeni.anayasa.gov.tr/Uploads/2016-117.doc. Accessed 1 August 2016.

  121. 121.

    For the English translation of this law amending the constitution, see European Commission for Democracy Through Law (Venice Commission), ‘Turkey Law No. 6718 Constitutional Amendment as to Lifting Parliamentary Immunity’ CDL-REF(2016)056 www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-REF(2016)056-e. Accessed 1 October 2016.

  122. 122.

    The reason why a case under Article 148 could not be brought before the Constitutional Court was that the total number of deputies sought to challenge the amendment fell short of 110, as Kemal Kılıçdaroğlu, leader of the main opposition party CHP, urged his party’s deputies not to sign a petition challenging the amendment’s constitutionality. See ‘Rift in CHP over lifting parliamentary immunities widens’ Hürriyet Daily News (9 June 2016). www.hurriyetdailynews.com/rift-in-chp-over-lifting-parliamentary-immunities-widens.aspx?pageID=238&nID=100309&NewsCatID=338. Accessed 1 August 2016.

  123. 123.

    Article 85—(As amended on July 23, 1995; Act No. 4121) If the parliamentary immunity of a deputy has been lifted or if the loss of membership has been decided according to the first, third or fourth paragraphs of Article 84, the deputy in question or another deputy may, within seven days from the date of the decision of the Plenary, appeal to the Constitutional Court, for the decision to be annulled on the grounds that it is contrary to the Constitution, law or the Rules of Procedure. The Constitutional Court shall make the final decision on the appeal within fifteen days.

  124. 124.

    E. 2016/54 (2016) para 11.

  125. 125.

    This amendment was specifically aimed at the deputies of the mainly Kurdish HDP (People’s Democratic Party), as was later demonstrated by the detainment and arrest of the co-chairpersons and other deputies of the HDP from November 2016 onwards. The political contexts of the cases and the accompanying shift in the legal stances of the judges tell a story about ‘the spirit of the Turkish constitution’. On the problematic nature of this amendment, see Acar (2016).

  126. 126.

    Schmitt (2008), p. 146.

  127. 127.

    Joel Colón-Riós writes that Schmitt would probably regard this widespread distinction especially in the French and Latin American doctrine a conceptual confusion. See Colón-Riós (2011), p. 381.

  128. 128.

    For a defence of unamendability based on this distinction named slightly differently as primary and secondary constituent powers, see Roznai (this volume). Roznai argues that unamendability is ‘the ultimate expression of democracy’, as it protects the choices of the more fundamental political power, i.e. the primary constituent power.

  129. 129.

    For a study of the TCC’s ideology-based paradigm through its jurisprudence on political rights, see Arslan (2002), p. 9. On how the TCC’s judicial activism has played out with regard to the protection of human rights, see Hakyemez (2009).

  130. 130.

    These two practices of the Turkish Constitutional Court are among the clearest examples of the militant democracy practice in Turkey. See Oder (2009), Hakyemez (2000).

  131. 131.

    When the then Speaker of the Turkish Parliament Cemil Çiçek convened a meeting of constitutional law professors in Turkey in 2011 to consult them regarding the establishment of the Constitution Reconciliation Committee which would draft a new constitution, the value of the unamendability clause was a central theme in the meeting. The (legal) significance of Article 4 surfaced in the debate regarding whether the Turkish parliament could make a completely new constitution or what it set out to do would be a major constitutional amendment. Article 4 was regarded in the meeting by most academics as not an obstacle in making major constitutional changes. Participants agreed the principles it made unamendable should be protected in essence, but most argued that they could be amended to make the wording better and the principles clearer. It is worth noting that Articles 1, 2 and 3 were seen to be respected for political reasons rather than because of a legal force attached to Article 4. See TBMM, TBMM Başkanı Cemil Çiçek Başkanlığında Anayasa Hukuku Profesörleri ile Toplantı (Ankara, 19 September 2011).

  132. 132.

    Özbudun (2010), pp. 181–182, Kaboğlu (2017), p. 352, Erdoğan (2005), p. 308.

  133. 133.

    Oder (2010), pp. 53–54.

  134. 134.

    Ibid., p. 55.

  135. 135.

    Onar (2003), pp. 19–20, Özbudun (2010), p. 173, Tanör (2013), p. 160.

  136. 136.

    Onar (2003), pp. 164–165.

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Acknowledgements

I would like to thank the participants of the Unamendable Constitutional Provisions workshop at Koç University, and in particular Richard Albert for serving as the discussant for the earlier workshop draft of this chapter with invaluable comments and suggestions, and Bertil Emrah Oder and the anonymous reviewer for written comments. I am grateful to Asli Ozcelik and Thomas Raine for their help and suggestions.

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Olcay, T. (2018). The Unamendability of Amendable Clauses: The Case of the Turkish Constitution. In: Albert, R., Oder, B. (eds) An Unamendable Constitution?. Ius Gentium: Comparative Perspectives on Law and Justice, vol 68. Springer, Cham. https://doi.org/10.1007/978-3-319-95141-6_12

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