Subnational constitutions between asymmetry in fundamental rights protection and the principle of non-discrimination: a comparison between Belgium (Charter for Flanders) and Switzerland

Written by Matteo Monti   
This paper investigates the complex relationship between asymmetry and the principle of non-discrimination from the perspective of subnational fundamental rights. The research question of this paper concerns the compatibility of asymmetry in fundamental rights with the equality principle, looking at the so-called Charter for Flanders (Handvest voor Vlaanderen, in Flemish) in the light of the Swiss experience. In the first part (section 2), this paper briefly explores the importance of subnational constitutions in multinational states, highlighting how subnational constitutions could incorporate cultural fundamental rights related to (sub)national identities. The paper analyses how cantonal constitutions in the Swiss Confederation protect cultural fundamental rights and how the project of the Flemish Charter promotes national identity in fundamental rights. The second part of the paper (section 3) explores the limits, stemming from the equality principle, to the asymmetry of fundamental rights as derived from subnational constitutions in federal systems. While doing so, the paper focuses on the Swiss experience, looking at the relevant case law of the Swiss Federal Supreme Court and the decisions of the Federal Assembly concerning subnational fundamental rights. Finally, the third part (section 4) of the paper is dedicated to the Belgian scenario. This part analyses how the principles inferred from the Swiss case may be applied to the Belgian scenario and to the Flemish Charter. In the final remarks (section 5), the paper makes some considerations de jure condendo about the Charter for Flanders in Belgium and the asymmetry in fundamental rights in multinational states.
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Published on Wednesday, 23 January 2019 11:20
Last Updated ( Wednesday, 23 January 2019 12:34 )
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