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Selected Developments in Comparative Constitutional Law: December 2024 Round-Up

December 23, 2024

North America

The November 2024 US elections were a highly divisive moment in US political history, with Donald Trump securing a second term to become the 47th US President, following his first presidency from 2017 to 2021. He defeated Vice President Kamala Harris, who entered the race after President Joe Biden’s abrupt withdrawal. Trump’s path to the White House was complicated by several legal challenges, including multiple criminal investigations. His involvement in the US Capitol attack of 6 January 2021 remained a central issue, with Trump maintaining his innocence and claiming the charges were politically motivated. On 1 July 2024, the US Supreme Court ruled in Trump’s favour, granting him immunity for official actions during his presidency but not for unofficial acts. This ruling sparked concerns, particularly from critics on the left, who feared it could weaken democratic checks on the presidency.

Trump’s victory carries significant implications for the war in Ukraine. Shortly after the election, the Wall Street Journal reported that a peace plan allowing Russia to retain control of the Ukrainian territory it currently occupies was being discussed within Trump’s transition team. Regardless of its doubtful political feasibility, it has been pointed out that such a peace agreement would raise important legal questions under international law, which generally prohibits aggressor states from retaining territorial gains made through war. Furthermore, such a peace treaty could affect the obligations of third parties and could have lasting repercussions on Ukraine’s internal constitutional order, particularly as the country continues to pursue its EU membership aspirations.

On the other side of the border, Mexico is facing its own constitutional challenges. In October, the lower house of Congress approved a constitutional amendment that effectively makes reforms to the constitution ‘unchallengeable’. This has raised concerns about the implications for the role of the Supreme Court and the principle of separation of powers, especially in a country where legal scholars have long pointed out the absence of a doctrine on unconstitutional constitutional amendments as a result of the Supreme Court’s notable deference to the political branch. Additionally, the amendment introduced a controversial judicial reform, which mandates the direct election of judges and magistrates. These elections, set for June 2025, will replace a wide range of judicial positions, including all Supreme Court justices, reducing the Court to just nine members.

Europe

On 19 November, Russia officially adopted a new nuclear weapons doctrine, which allows for the use of nuclear weapons in response to an attack on its territory by a non-nuclear state supported by a nuclear power. Meanwhile, Ukraine, now in its third year of war against Russia, is facing challenges in filling its military ranks, exacerbated by a corruption scandal involving bribes to evade military service. Against this backdrop, Ukraine’s Constitutional Court is considering a case related to conscientious objection and is grappling with how to balance its commitment to constitutional freedoms with the urgency of Russia’s aggression. This dilemma remains unresolved for now, with the Court expected to take a restrictive approach to avoid weakening military recruitment amidst critical troop shortages. In terms of comparative constitutional law, South Korea’s experience may be particularly relevant for Ukraine. Until recently, South Korea had penalized conscientious objectors because of its ongoing security concerns with North Korea. However, in 2018, South Korea’s Constitutional Court modified its stance, mandating lawmakers to provide alternative service options for conscripts.

Asia

South Korea, meanwhile, is grappling with its own significant constitutional crisis. On 3 December, President Yoon Suk Yeol startled the nation by declaring martial law for the first time in nearly five decades. Announced in a surprise late-night TV broadcast, the move cited ‘anti-state forces’ and the threat from North Korea as justifications. However, it quickly became apparent that the declaration was more about Yoon’s own delicate political situation than about any external danger. The decision triggered mass protests, while the opposition party rushed to initiate an emergency vote to reverse the order. Ultimately, Yoon was forced to accept the parliamentary vote, lifting the martial law within hours. An initial attempt to impeach him failed, as a walkout by the governing party blocked the necessary votes from the opposition. New efforts to address the situation through an impeachment vote are reportedly in the works.

In a separate matter, diplomatic tensions between China and the Philippines have recently escalated. On 10 November, China officially established a baseline for territorial waters around the contested Scarborough Shoal, which it refers to as Huangyan Island. The move provoked a strong reaction from the Philippines, leading the foreign ministry to summon the Chinese ambassador on 13 November for a formal protest, condemning China’s actions as a violation of Philippine sovereignty and international law. In response, China’s ambassador to the Philippines defended the decision, claiming it was a necessary countermeasure to the Philippines’ recent legislation on maritime boundaries and a standard step to improve maritime governance. The Scarborough Shoal continues to be a contentious issue between the two nations, with both sovereignty and fishing rights at stake.

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