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Article

ILC Report on Prevention and Punishment of Crimes Against Humanity and Enforced Disappearance

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords enforced disappearance, without prejudice clause, Draft Articles, crimes against humanity, commentaries
Authors Claudio Grossman
AbstractAuthor's information

    This article values as an important milestone the Draft Articles on the Prevention and Punishment of Crimes Against Humanity. They greatly contribute to the development of international law, inter alia, seeking to prevent impunity and to establish the duty to prosecute or extradite those who have allegedly committed crimes against humanity. They are a solid basis for a possible diplomatic conference designed to adopt a convention that will establish binding obligations for all ratifying States. The Draft Articles took as a point of departure the Rome Statute of the International Criminal Court to list and define crimes against humanity, and, considering current developments in international law, departed from the Rome Statute so far in two matters: the definition of gender and the treatment of persecution. This article argues why it is essential to follow a similar approach and adopt the definition of enforced disappearance currently used in international conventions that deal with such a horrendous crime. The article also shows why the ‘without prejudice’ clause currently proposed by the Draft Articles is unsatisfactory, depriving States that do not follow the restrictive definition incorporated more than two decades ago in the Rome Statute from the benefits of the proposed convention.


Claudio Grossman
Professor of Law and Dean Emeritus, R. Geraldson Scholar for International and Humanitarian Law, American University Washington College of Law; Member, United Nations International Law Commission; and President, Inter-American Institute of Human Rights.
Article

Access_open Introduction to the Symposium on a Way Forward

Academic and Practitioner Perspectives on the ILC Draft Articles on Prevention and Punishment of Crimes Against Humanity as adopted on Second Reading

Journal African Journal of International Criminal Justice, Issue 2 2020
Authors Charles C. Jalloh and Leila N. Sadat
Author's information

Charles C. Jalloh
Charles C. Jalloh is Professor of Law, Florida International University and Member and Chair of the Drafting Committee (seventieth session) and Rapporteur (seventy-first session), International Law Commission. Email: jallohc@gmail.com.

Leila N. Sadat
Leila N. Sadat is James Carr Professor of International Criminal Law and Director, Whitney R. Harris World Law Institute, Washington University School of Law.
Article

An Analysis of State Reactions to the ILC’s Work on Crimes Against Humanity

A Pattern of Growing Support

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords crimes against humanity, Sixth Committee, International Law Commission, Draft Articles, International Criminal Court
Authors Leila N. Sadat and Madaline George
AbstractAuthor's information

    The international community has been engaged with the topic of crimes against humanity since the International Law Commission (ILC) began work on it in 2013, with a view to draft articles for a future convention. Between 2013 and 2019, 86 States as well as several entities and subregional groups made comments on the ILC’s work at the United Nations Sixth Committee or through written comments to the ILC. This article is the culmination of the Whitney R. Harris World Law Institute’s work cataloguing and analysing States’ comments by assigning each statement to one of five categories – strong positive, positive, neutral, negative, and strong negative – examining both specific words and the general tenor of the comments. This article analyses the development of States’ reactions to the ILC’s work over time, as well as specific issues that frequently arose, observing that there is a pattern of growing support from States to use the ILC’s Draft Articles on Prevention and Punishment of Crimes Against Humanity as the basis for a new convention.


Leila N. Sadat
Leila Nadya Sadat is the James Carr Professor of International Criminal Law, and Director, Whitney R. Harris World Law Institute, Washington University School of Law. This work could not have been accomplished without the extraordinary efforts of several Harris Institute Fellows, including Fizza Batool, Evelyn Chuang, Tamara Slater, and Kristin Smith and Research Fellows Kate Falconer, Sam Rouse, and Ke (Coco) Xu.

Madaline George
Madaline George, JD, is the Senior Fellow at the Whitney R. Harris World Law Institute at Washington University School of Law.
Article

Access_open Moet de strafrechter ook de scheidsrechter zijn van het publieke debat?

De scheiding der machten in het licht van de vrijheid van meningsuiting voor volksvertegenwoordigers

Journal Netherlands Journal of Legal Philosophy, Issue 2 2020
Keywords Freedom of speech, Separation of powers, Criminal law, Hate speech, Legal certainty
Authors Jip Stam
AbstractAuthor's information

    This article contains a critical review of the provisions in the Dutch penal code regarding group defamation and hate speech. It is argued that not only these provisions themselves but also their application by the Dutch supreme court, constitutes a problem for the legitimacy and functioning of representative democracy. This is due to the tendency of the supreme court to employ special constraints for offensive, hateful or discriminatory speech by politicians. Because such a special constraint is not provided or even implied by the legislator, the jurisprudence of the supreme court is likely to end up in judicial overreach and therefore constitutes a potential – if not actual – breach in the separation of powers. In order to forestall these consequences, the protection of particularly political speech should be improved, primarily by a revision of the articles 137c and 137d of the Dutch penal code or the extension of parliamentary immunity.


Jip Stam
Jip Stam is onderzoeker en docent bij de afdeling Encyclopedie van de rechtswetenschap aan de Leidse rechtenfaculteit.

    Een rechtsstaat is gebaseerd op zelfbinding van de overheid aan het recht. Deze zelfbinding moet verankerd zijn in regels die onder meer de onafhankelijkheid van de rechterlijke macht vastleggen. De ontwikkelingen in Polen en elders tonen echter aan dat juridische regels van zelfbinding geen blokkades maar verkeersdrempels zijn op de weg naar despotisch bestuur. Een rechtsstaat vereist vooral een cultuur van zelfbinding. De conceptualisering van deze rechtsstaatcultuur staat nog in de kinderschoenen.


Ronald Janse
Ronald Janse is hoogleraar Encyclopedie van de rechtswetenschap aan de Open Universiteit.
Article

Access_open Nationale constitutie versus internationale jurisdictie?

De rol van de rechter vanuit internationaalrechtelijk perspectief

Journal Netherlands Journal of Legal Philosophy, Issue 2 2020
Authors Anneloes Kuiper-Slendebroek
AbstractAuthor's information

    Voor het evenwicht tussen de staatsmachten, maar ook voor de ontwikkeling van internationaal recht, is de wijze waarop de nationale rechter zijn rol vervult van belang: gedraagt hij zich als rechtsvormer of als een rechtshandhaver? Zowel de legitimatie en vorming van het internationale recht als de handhaving van de internationale verplichtingen van de Staat op nationaal niveau zijn hiervan afhankelijk. Deze belangen worden bezien vanuit internationaal perspectief en uiteengezet aan de hand van recente jurisprudentie.


Anneloes Kuiper-Slendebroek
Anneloes Kuiper-Slendebroek is universitair docent privaatrecht aan de Universiteit Utrecht.
Article

Access_open Restraint as a Source of Judicial ‘Apoliticality’

A Functional Reconstruction

Journal Netherlands Journal of Legal Philosophy, Issue 2 2020
Keywords Urgenda, Miller v. Secretary of State, Norm of judicial apoliticality, Ronald Dworkin, Judicial restraint
Authors Maurits Helmich
AbstractAuthor's information

    Few legal theorists today would argue that the domain of law exists in isolation from other normative spheres governing society, notably from the domain of ‘politics’. Nevertheless, the implicit norm that judges should not act ‘politically’ remains influential and widespread in the debates surrounding controversial court cases. This article aims to square these two observations. Taking the Miller v. Secretary of State and Urgenda cases as illustrative case studies, the article demonstrates that what it means for judges to adjudicate cases ‘apolitically’ is itself a matter of controversy. In reflecting on their own constitutional role, courts are forced to take a stance on substantive questions of political philosophy. Nevertheless, that does not mean that the ‘norm of judicial apoliticality’ should therefore be rejected. The norm’s coherence lies in its intersocial function: its role in declaring certain modes of judicial interpretation and intervention legitimate (‘legal’/‘judicial’) or illegitimate (‘political’).


Maurits Helmich
Maurits Helmich is promovendus aan de afdeling Sociologie, Theorie en Methodologie van het Recht aan de Erasmus Universiteit Rotterdam.
Article

Access_open The Obligation of Judges to Uphold Rules of Positive Law and Possibly Conflicting Ethical Values in Context

The Case of Criminalization of Homelessness in Hungary

Journal Netherlands Journal of Legal Philosophy, Issue 2 2020
Keywords Judicial independence, Rule of law, Judicial ethics, Hungary, Criminalization of homelessness
Authors Petra Gyöngyi
AbstractAuthor's information

    This article examines the tension between the constitutional obligation of judges to uphold rules of positive law and possibly conflicting standards of conduct arising from professional-ethical values. The theoretical analysis will be illustrated by the case of Hungary, an EU member state experiencing rule of law challenges since 2010 and where the 2018-2019 criminalization of homelessness exemplifies the studied tension. Inspired by the theories of Philip Selznick and Martin Krygier, rule of law will be viewed as a value that requires progressive realization and context-specific implementation. By contextualizing the relevant Hungarian constitutional framework with the content of the judicial code of ethics and judicial practice, it will be shown how the legitimate space for Hungarian judges to distance themselves from legislation possibly in conflict with rule of law values is reduced. Theoretical suggestions for addressing such rule of law regressions will be made.


Petra Gyöngyi
Petra Gyöngyi is postdoctoral fellow aan de University of Oslo.

Elaine Mak
Elaine Mak is hoogleraar Rechtstheorie en Enclyopedie van de rechtswetenschappen aan de Universiteit Utrecht.

Anne Ruth Mackor
Anne Ruth Mackor is hoogleraar Hoogleraar professie-ethiek, in het bijzonder van juridische professies aan de Rijksuniversiteit Groningen.

Iris van Domselaar
Iris van Domselaar is universitair hoofddocent aan de Amsterdamse rechtenfaculteit.
Article

A New Aspect of the Cross-Border Acquisition of Agricultural Lands

The Inícia Case Before the ICSID

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords ICSID, investment law, free movement of capital, land tenure, land law
Authors János Ede Szilágyi and Tamás Andréka
AbstractAuthor's information

    The Inícia case concluded at the International Centre for Settlement of Investment Disputes (ICSID) on 13 November 2019 shows that international arbitration institutions may have a significant role even in the EU Member States’ disputes concerning the cross-border acquisition of agricultural lands. Taking the regulation concerning cross-border acquisition into consideration, the last decade was extremely eventful: (i) Following the expiration of transitional periods, the new Member States were obliged to adopt new, EU law-conform national rules concerning the cross-border acquisition of agricultural lands. (ii) The European Commission began to generally and comprehensively assess the national land law of the new Member States. (iii) The FAO issued the Voluntary Guidelines on the ‘Responsible Governance of Tenure of land, fisheries and forests in the context of national food security’ (VGGT), which is the first comprehensive, global instrument on this topic elaborated in the framework of intergovernmental negotiations. (iv) Several legal documents, which can be regarded as soft law, concerning the acquisition of agricultural lands have been issued by certain institutions of the EU; these soft law documents at EU level are as rare as the VGGT at international level. (v) The EU initiated numerous international investment treaties, regulations of which also affect numerous aspects of the cross-border acquisition of agricultural lands. (vi) The Brexit and its effect on the cross-border acquisition of agricultural lands is also an open issue. Taking the above-mentioned development into consideration, the Inícia case may have a significant role in the future of the cross-border transaction among EU Member States and beyond.


János Ede Szilágyi
János Ede Szilágyi: professor of law, University of Miskolc; director, Ferenc Mádl Institute of Comparative Law. ORCID ID: 0000-0002-7938-6860.

Tamás Andréka
Tamás Andréka: head of Department for Legislation, Ministry of Agriculture; PhD student, University of Miskolc.
Literature Review

The 2019 Henry Wheaton Prize

An Introduction to Katalin Sulyok’s Award-Winning PhD Dissertation

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords Henry Wheaton prize, environmental disputes, scientific argument, judicial interaction, burden of proof
Authors Gabriella Szamek
AbstractAuthor's information

    Katalin Sulyok, senior lecturer at ELTE Law School, Department of International Law was awarded the Henry Wheaton Prize by the Institut de Droit International in 2019; this prize is awarded by an international jury to the best English, German, French, Italian or Spanish language PhD dissertation in the field of international environmental law. This article presents and evaluates the major findings of the award-winning dissertation entitled ‘Scientific Engagement of International Courts and Tribunals in Environmental Disputes – Science and the Legitimacy of Adjudicatory Reasoning’.


Gabriella Szamek
Gabriella Szamek: chief legal advisor, Secretariat of the Ombudsman for Future Generations, Budapest.
Article

Investment Arbitration and the Public Interest

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords BIT, ILA, ISDS, unclean hands, regulatory chill
Authors Gábor Hajdu
AbstractAuthor's information

    The study focuses on analyzing conflicts between (international) investment arbitration and the public interest, dividing its contents into five substantive sections. First, it summarizes the common characteristics of international investment arbitration (distinguishing procedural and substantive elements), followed by its most pressing issues (including frequent criticism such as lack of consistency, asymmetrical proceedings, regulatory chill, etc.). Afterwards, selected investment arbitration cases are examined, grouped based on which areas of public interest they affected (environmental protection, employee rights, public health). These cases all hold relevance and offer different insights into the workings of investment arbitration, which serve to illuminate the complex interplay between foreign investor and public interest. The cases also provide the foundation for the study’s conclusions, where key observations are made on the central subjects.


Gábor Hajdu
Gábor Hajdu: PhD student, University of Szeged.
Article

The Temporal Effect and the Continuance in Force of the Treaty of Trianon

A Hundred Years Later

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords peace treaties, Trianon Peace Treaty, termination of treaties, temporal effect of international treaties, law of international treaties
Authors Norbert Tóth
AbstractAuthor's information

    The 1920 Trianon Peace Treaty ended World War I between Hungary and its belligerents. Nonetheless, one hundred years have passed since then, yet this peace treaty is still unsettling to many, causing misbelief, hatred, anger and misunderstanding both in Hungary and its neighboring countries. To unearth the temporal aspects of the Trianon Peace Treaty, more precisely, to identify exactly what obligations remain in force following this rather hectic century, it is indispensable to study the temporal effect of this agreement. The present article aims at arriving at a conclusion in relation to several misbeliefs held with respect to the Trianon Peace Treaty as well as the issue of its termination.


Norbert Tóth
Norbert Tóth: associate professor of law, National University of Public Service, Budapest.
Article

The ECtHR on Constitutional Complaint as Effective Remedy in the Hungarian Legal Order

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords ECHR, Constitutional Court of Hungary, constitutional complaint, exhaustion of domestic remedies, subsidiarity
Authors Péter Paczolay
AbstractAuthor's information

    Since 2012 a new regulation of the constitutional complaint was introduced to the Hungarian legal system that since then also includes the full constitutional complaint against final court decisions. Besides this new remedy , two other exist: a complaint against a legal provision applied in court proceedings (in force since 1990), and an exceptional form of the complaint against a legal provision, when there are no real and effective remedies available. Before 2012 the ECtHR did not consider the constitutional complaint to be an effective domestic remedy that needs to be exhausted. In two decisions taken in 2018 and 2019 the ECtHR declared that – under the respective conditions and circumstances – all three kinds of constitutional complaints may offer an effective remedy to the applicants at domestic level. The case note presents the two cases summarizing the main arguments of the ECtHR that led to this conclusion.


Péter Paczolay
Péter Paczolay: professor of law, University of Szeged; judge, ECtHR.
Article

The Development of Human Rights Diplomacy Since the Establishment of the UN

More Actors, More Efficiency?

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords human rights, diplomacy, international organizations, NGOs, corporate social responsibility
Authors István Lakatos
AbstractAuthor's information

    This study gives a comprehensive picture of the development of human rights diplomacy since the establishment of the UN, focusing on the dilemmas governments are facing regarding their human-rights-related decisions and demonstrating the changes that occurred during the post-Cold War period, both in respect of the tools and participants in this field. Special attention is given to the role of international organizations, and in particular to the UN in this process, and the new human rights challenges the international community must address in order to maintain the relevance of human rights diplomacy.


István Lakatos
István Lakatos: career diplomat, former human rights ambassador of the Ministry of Foreign Affairs and Trade of Hungary, currently senior adviser of the Ministry of Human and Minority Rights of Montenegro.
Article

Urgenda to Be Followed

Will the Courts Be the Last Resort to Prevent Dangerous Climate Change?

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords climate change, Urgenda, Paris Agreement, effort sharing, IPCC
Authors András Huszár
AbstractAuthor's information

    The fight against climate change has reached new battlegrounds. National courts have become the stage where individuals and communities are trying to force Governments or other public and private legal entities to do more. After more than four years of legal battle, the Dutch Supreme Court has settled perhaps one of the most well-known climate cases in literature so far: Urgenda Foundation v. the State of the Netherlands. The essence of the judgment is that the Dutch Government was ordered to comply with the greenhouse gas emission reduction target deemed necessary by the international community. The way in which the Court has arrived at this conclusion in terms of the concrete obligation is questionable. While the ruling is based on various legal bases, the present article examines solely the arguments derived from international climate law and science. To that end it elaborates on the challenges of establishing the substance of a legally binding obligation for individual states concerning mitigation, it analyzes the nature of joint mitigation efforts, it looks at reports of the Intergovernmental Panel on Climate Change used as evidence in court procedures, and finally, it explores the possible future of climate litigation in light of the legally binding ‘ultimate’ goal of climate policy introduced by the Paris Agreement.


András Huszár
András Huszár: PhD student, National University of Public Service, Budapest; founder and director, Green Policy Center.
Literature Review

László Fodor, A falu füstje (Book Review)

Gondolat, Budapest, 2019, 480 p, ISBN 978-963-693-364-7

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Authors István Hoffman
Author's information

István Hoffman
István Hoffman: professor of law, ELTE Law School, Budapest; professor of university, Maria Curie-Skłodowska University, Lublin.
Article

Participation in the European Public Prosecutor’s Office

Member States’ Autonomous Decision or an Obligation?

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords European Public Prosecutor’s Office, EPPO, OLAF, European criminal law, Eurojust
Authors Ádám Békés
AbstractAuthor's information

    The aim of the present study is to examine recent developments concerning the European Public Prosecutor’s Office (EPPO), focusing on the conflict between the EU and the Member States not participating in the enhanced cooperation setting up the Prosecutor’s Office. To provide an overall picture about EPPO’s future operational relations, the study first presents the EPPO’s future cooperation with other EU bodies and draws some critical conclusions. Based on these reflections, the study aims to discuss the EU’s alleged intention and strategy to cope with and solve the problem of non-participating Member States, assessing the probable role of the Prosecutor’s Office and other related EU bodies, institutions and legal measures in this struggle, while also considering recent declarations of the leaders of EU institutions.


Ádám Békés
Ádám Békés: associate professor of law, Pázmány Péter Catholic University, Budapest; attorney-at-law.
Article

The CETA Investment Court and EU External Autonomy

Did Opinion 1/17 Broaden the EU’s Room for Maneuver in External Relations?

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords EU investment treaties, investment arbitration, EU external relations, EU treaty-making capacity, level of protection of public policy interests
Authors Wolfgang Weiss
AbstractAuthor's information

    The present contribution analyzes Opinion 1/17 of the CJEU on CETA, which, in a surprisingly uncritical view of conceivable conflicts between the competences of the CETA Investment Tribunal on the one hand and those of the CJEU on the other hand, failed to raise any objections. First reactions welcomed this opinion as an extension of the EU’s room for maneuver in investment protection. The investment court system under CETA, however, is only compatible with EU law to a certain extent. This was made clear by the Court in the text of the opinion, and the restrictions identified are likely to confine the leeway for EU external contractual relations. Owing to their fundamental importance, these restrictions, inferred by the CJEU from the autonomy of the Union legal order form the core of this contribution. In what follows, the new emphasis in the CETA Opinion on the external autonomy of Union law will be analyzed first (Section 2). Subsequently, the considerations of the CJEU regarding the delimitation of its competences from those of the CETA Tribunal will be critically examined. The rather superficial analysis of the CJEU in the CETA Opinion stands in stark contrast to its approach in earlier decisions as it misjudges problems, only seemingly providing for a clear delimitation of competences (Section 3). This is followed by an exploration of the last part of the CJEU’s autonomy analysis, in which the CJEU tries to respond to the criticism of regulatory chill (Section 4). Here, by referring to the unimpeded operation of EU institutions in accordance with the EU constitutional framework, the CJEU identifies the new restrictions for investment protection mechanisms just mentioned. With this, the CJEU takes back the earlier comprehensive affirmation of the CETA Tribunal’s jurisdiction with regard to calling into question the level of protection of public interests determined by the EU legislative, which raises numerous questions about its concrete significance, consequence, and scope of application.


Wolfgang Weiss
Wolfgang Weiss: professor of law, German University of Administrative Sciences, Speyer.
Article

The Protection of the Right to Local Self-Government in the Practice of the Hungarian Constitutional Court

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords right to local self-government, protected powers, European Charter of Local Self-Government, Hungary, Constitutional Court of Hungary
Authors Ádám Varga
AbstractAuthor's information

    A specific trait of local self-governments is that they exercise public power, while public power is also exercised against them. This means that those functions and powers that are obligations on the side of local self-governments, can be construed as rights against central public bodies. For this reason, the protection of the right to local self-government is a priority. The Charter of Local Self-Government takes the view that the autonomy of local self-governments shall be guaranteed against central public bodies. It is necessary to establish a legal framework which ensures that strong central public bodies cannot enforce their own political or professional preferences against the will of local communities with different political or professional beliefs. In my opinion, the central issue, also in Hungary, is that local self-governments are entitled to the protection of the Constitutional Court. Decision No. 3311/2019. (XI. 21.) AB sets out that local self-governments are entitled to turn to the Constitutional Court in their own right by submitting a constitutional complaint if the law violates their rights guaranteed in the Fundamental Law (including powers enshrined in the Fundamental Law). While the decision is still very recent, nevertheless, thanks to its local self-governments may expect the substantive review of their petitions by the Constitutional Court in the future.


Ádám Varga
Ádám Varga: visiting lecturer, Pázmány Péter Catholic University, Budapest; assistant lecturer, National University of Public Service, Budapest; counselor, Constitutional Court of Hungary, Budapest.
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