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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

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 Case Between Urgenda and the State of the Netherlands

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords climate change, public interest litigation, human rights, ECHR, Netherlands
Authors Otto Spijkers
AbstractAuthor's information

    The Supreme Court of the Netherlands held that the Netherlands’ Government must ensure that, by the end of 2020, greenhouse gas emission levels from the Netherlands are at least a quarter below 1990 levels, otherwise the rights to life and wellbeing, as guaranteed under Articles 2 and 8 ECHR respectively, of the people in the Netherlands are breached. In doing so, the Supreme Court affirmed the reasoning and ruling of the Appeals Court, and distanced itself from the reasoning of the District Court, which was primarily based on domestic tort law.


Otto Spijkers
Otto Spijkers: professor of law, China Institute of Boundary and Ocean Studies (CIBOS) of Wuhan University.
Article

The Elusive Quest for Digital Exhaustion in the US and the EU

The CJEU’s Tom Kabinet Ruling a Milestone or Millstone for Legal Evolution?

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords digital exhaustion, Tom Kabinet, UsedSoft, ReDigi, copyright law
Authors Shubha Ghosh and Péter Mezei
AbstractAuthor's information

    The CJEU published its much-awaited preliminary ruling in Case C-263/18 - Nederlands Uitgeversverbond and Groep Algemene Uitgevers (the Tom Kabinet case) in December 2019. Our paper aims to introduce the Tom Kabinet ruling and discuss its direct and indirect consequences in copyright law. The Tom Kabinet ruling has seriously limited (in fact, outruled) the resale of lawfully acquired e-books. It left various questions unanswered, and thus missed the opportunity to provide for clarity and consistency in digital copyright law. Our analysis addresses how the CJEU deferred from its own logic developed in the UsedSoft decision on the resale of lawfully acquired computer programs, and how the CJEU’s conservative approach ultimately missed the opportunity to reach a compromise ruling. The paper further introduces the US approach that has a strong distinction between selling and making with respect to the research of exhaustion. We aim to trace how this distinction rests on the statutory basis for exhaustion (in copyright) and common law basis (in patent and trademark law) and compare these findings with the CJEU’s recent interpretation of exhaustion. Our focus will be on the Supreme Court’s decisions in Kirstaeng and Bowman and lower court decisions that examine technological solutions to facilitate resale. We examine how the US approach adopts a rigid approach that might inhibit technological development in digital markets, an approach with parallels in the Tom Kabinet ruling. In conclusion, we assess whether there is convergence between the two sides of the Atlantic or whether there is a path of innovative legal development that reconciles the various precedents.


Shubha Ghosh
Shubha Ghosh: Crandall Melvin professor of law, Syracuse University, US.

Péter Mezei
Péter Mezei: associate professor of law, University of Szeged; adjunct professor (dosentti), University of Turku, Finland.
Conference Reports

Anniversary Conference on the Occasion of the 80th Birthday of János Bruhács

Report on the ‘Anniversary Conference on the Occasion of the 80th Birthday of János Bruhács’ Organized by University of Pécs, 4 October 2019, Pécs

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords conference report, János Bruhács, humanitarian law, environmental law, fragmentation
Authors Ágoston Mohay and István Szijártó
AbstractAuthor's information

    On 4 October 2019, the Department of International and European Law at University of Pécs, Faculty of Law organized an anniversary conference to celebrate the 80th birthday of professor emeritus János Bruhács. The conference held in Pécs brought together speakers representing universities and research institutions from all over Hungary. The four sections of the conference dealt with topics ranging from international humanitarian law to international environmental law and the question of fragmentation of the international legal order. The organizers sought to address issues, which represented important fields of research in the works of Professor Bruhács.


Ágoston Mohay
Ágoston Mohay: associate professor of law, University of Pécs.

István Szijártó
István Szijártó: law student, University of Pécs.
Article

National Courts and the Enforcement of EU Law

Hungarian Experiences

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords Constitutional Court of Hungary, supremacy, mutual trust, constitutional identity, preliminary ruling
Authors András Osztovits and András Zs. Varga
AbstractAuthor's information

    The present study was originally meant for the FIDE XXIX Congress, which provided an excellent opportunity to review how the acquis communautaire has been implemented by ordinary courts as well as the Constitutional Court of Hungary since the country’s accession to the EU. As it is widely known, national courts play a key role in enforcing rights and obligations under EU law, so that the application of EU law remains uniform in all the Member States, in compliance with the jurisprudence of the CJEU. On the other hand, national constitutional courts must take a position more frequently and emphatically on issues related to national sovereignty: in defining what comes within the scope of the EU’s legislative competence and what remains under the control of national constitutional and legislative power. The relationship between national ordinary courts, constitutional courts and the CJEU, as well as the national implementation of Luxembourg case-law may be analyzed in a variety of ways and from different perspectives. The main principles governing EU law (such as direct effect, supremacy, mutual trust) have been developed in increasing detail over the years. Since their effect and practical consequences are outstanding, in what follows, we are shall explore these issues first in the light of Hungarian case-law. In the context of the principle of mutual trust, the discussion surrounding the independence of national courts is gaining impetus. Therefore, we will also touch upon this issue in our study. Finally, as far as the issue of effective enforcement of EU law is concerned, we shall present the Hungarian experience related to the preliminary ruling procedure, which is the most important element linking the CJEU and national courts. In this respect, we approach the issue from the domestic angle, focusing primarily on how exceptions to the obligation to submit a request for preliminary ruling have been clarified on the basis of the guidelines of the Curia of Hungary and the Constitutional Court of Hungary.


András Osztovits
András Osztovits: professor of law, Károli Gáspár University of the Reformed Church, Budapest; judge, Curia of Hungary, Budapest.

András Zs. Varga
András Zs. Varga: professor of law, Pázmány Péter Catholic University, Budapest; justice, Constitutional Court of Hungary, Budapest.
Article

European Citizens’ Initiatives for the Protection and Promotion of Rights and Interests of National Minorities

Latest Developments

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords European Citizens’ Initiative, national minorities, Minority SafePack, cohesion policy, participatory democracy
Authors Balázs Tárnok
AbstractAuthor's information

    This paper examines the latest developments in the two minority-related European Citizens’ Initiatives (ECI), the Minority SafePack Initiative and the Cohesion Policy Initiative (ECI on National Minority Regions). A key theoretical question of this paper is whether the ECI can be seen as an effective tool for the protection and promotion of the rights and interests of national minorities in the EU. The paper presents the most recent judgments of the General Court and the CJEU related to these ECIs. The Courts made important statements in terms of the admissibility criteria of ECIs, as well the possibility to propose EU legislation aiming to increase the protection of persons belonging to national and linguistic minorities. The paper also investigates the experiences of the signature collection campaign of the Cohesion Policy Initiative and the current status of the Minority SafePack Initiative in the examination phase. Finally, the paper aims to set up a prognosis on the future of these ECIs, taking into consideration the Commission’s latest proposal on the extension of the ECI deadlines.


Balázs Tárnok
Balázs Tárnok: junior research fellow, National University of Public Service, Europe Strategy Research Institute, Budapest; PhD candidate, Pázmány Péter Catholic University, Budapest.
Article

The European Charter for Regional or Minority Languages

Specific Features and Problems of Application

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords European Charter for Regional or Minority Languages, protection of minority languages, protection of regional languages, supervisory regime
Authors Gábor Kardos
AbstractAuthor's information

    As was the case after the Great War, World War II was followed by the setting up of international legal regimes to protect national (national, ethnic, linguistic, and religious) minorities in Europe. The emerging ideas of universalism and European unity were to prevent the aftermath of World War I, a conflict which erupted as a result of Western focusing the system of European minority protection on Central and Eastern Europe. The European Charter for Regional or Minority Languages protects minority languages, without granting minority rights. It provides an á la Carte system of obligations, with a supervisory system hinged on government reports. The Charter was intended to be a ‘high politics’ treaty. Nevertheless, with the protection of the minority linguistic heritage and the indirect provision of minority linguistic rights, it meant a first step towards bringing an end to the 19th century processes linguistic homogenization of the budding nationstates. As such, its implementation is highly political. The minority languages protected by the Charter are strongly varied in nature. If we add this factor to the á la Carte system of obligations, the sheer complexity of the system prevents evaluations of the Committee of Experts from being as consistent as they should be. An important contribution of the soft supervisory mechanism is that it at least puts some problematic issues on the agenda, however, experience has shown that the transposition of treaty obligations into national law is always a simpler task than creating the substantive conditions for the actual use of minority languages.


Gábor Kardos
Professor of law, ELTE Law School, Budapest; Member of the Committee of Experts of the European Charter for Regional or Minority Languages.

Zénó Suller
PhD student, Pázmány Péter Catholic University, Budapest.

Petra Lea Láncos
Researcher, Deutsches Forschungsinstitut für öffentliche Verwaltung, Speyer; associate professor, Pázmány Péter Catholic University, Budapest.
Article

In Unchartered Waters?

The Place and Position of EU Law and the Charter of Fundamental Rights in the Jurisprudence of the Constitutional Court of Hungary

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords Constitutional Court of Hungary, Charter of Fundamental Rights, preliminary ruling procedure, constitutional dialogue, CILFIT criteria
Authors Márton Sulyok and Lilla Nóra Kiss
AbstractAuthor's information

    This paper examines the perception and position of EU law in the jurisprudence of the Constitutional Court of Hungary within the constitutional arrangements brought to life after 2012. In this context, the inquiry addresses the changes regarding the status of EU law in constitutional case-law amounting to what is identified here as the method of ‘resourceful engagement’. Under this approach, the paper also examines the extent and frequency of the use of human rights reasoning based on the Charter of Fundamental Rights of the EU in the proceedings of the Constitutional Court (2015-2019), focusing mostly on constitutional complaints procedures. The paper briefly mentions the controversial nature of the ‘Implementation Dilemma’ regarding the Charter and its application in Member States’ constitutional court proceedings. As a corollary, in light of domestic procedures examined in the Repcevirág Szövetkezet v. Hungary judgment (April 2019) of the ECtHR, it examines whether the Constitutional Court could eventually start acting as a court of referral under Article 267 TFEU in such proceedings where the protection of fundamental rights under the Charter would require the interpretation of EU law. This would mark a shift from the earlier ‘context of non-reference’ to an approach of ‘resourceful engagement’ suggested by this paper.


Márton Sulyok
Senior lecturer, University of Szeged.

Lilla Nóra Kiss
Junior research fellow, University of Miskolc.
Article

Conference on the Evaluation of Legislation

Report on the ‘Evaluation of Legislation’ Conference Organized by Pázmány Péter Catholic University, 3 May 2019, Budapest

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Authors Noémi Suri
Author's information

Noémi Suri
Assistant professor, Pázmány Péter Catholic University, Budapest.
Article

A Multipolar System for the Protection of Fundamental Rights in Practice

Unjustified Dismissals of Government Officials in Hungary

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords Constitutional Court of Hungary, Multilevel constitutionalism, right to an effective remedy, unjustified dismissal of government officials, European protection of fundamental rights
Authors Zsuzsanna Szabó
AbstractAuthor's information

    Today, within the European multi-level and cooperative constitutional area the ECHR, the constitutional values enshrined in the EU Treaties together with the EU Charter of Fundamental Rights, as well as the constitutions of the EU Member States function as parallel constitutions. The legal remedies offered by international forums are subsidiary by nature, since it is desirable that legal issues of human rights be solved by the states at national level. The obligation to exhaust domestic legal remedies as a procedural precondition is necessary to afford the national level the opportunity to remedy the violation of human rights within its own legal system. This paper focuses on Section 8(1) of Act LVIII of 2010 on the legal status of government officials, which states that the employer has the right to terminate the contract of government officials with a two months’ notice period without justification. This research is of considerable interest because the dismissed officials – who, in my opinion, de facto suffered injury for the violation of their human rights – were forced to turn to international fora due to the fact that the Hungarian legal system was unable to grant them proper relief. Therefore, the analysis also evaluates the current level of fundamental rights adjudication and jurisprudence related to fundamental principles in Hungary.


Zsuzsanna Szabó
Assistant lecturer, University of Debrecen.
Article

The International Trading System and Market Distortions

Revisiting the Need for Competition Rules within the WTO

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords cross-border business activities, developing countries, multilateral competition rules, trade and competition, WTO
Authors Franziska Sucker
AbstractAuthor's information

    As a result of the interconnectedness of the global economy, cross-border activities of economic operators are soaring. Their business practices are not governed by multilateral rules, but merely, if at all, by regional or national laws. As a result, they are potentially subject to over- or under-enforcement and -regulation or to conflicting rules. The resultant legal uncertainties and, therefore, potential lack of discipline for practices facilitates the development of dominant positions and anticompetitive behavior. This advances market distortions to the detriment of diverse offerings and the competitiveness of small market players, especially in economically weak developed countries. Such unfavorable developments could be reduced by preventing market concentration and disciplining anticompetitive behavior. I argue that multilateral rules alone would ensure that cross-border activities of economic operators are subject to uniform rules, irrespective of which country’s or region’s market is affected; and thus, provide legal certainty for current gaps. Moreover, in spite of the resistance of numerous countries to include competition disciplines within the World Trade Organization (WTO), rules aimed at dismantling barriers to trade created by private economic operators are not only theoretically desirable but indispensable in the long term to avoid an erosion of the WTO system by effectively replacing state-created barriers. The increasing role of supply chains and the rising volatility of international commodity prices should give all, albeit particularly the economically weak developed countries, reason to pause and revisit an issue that has significant implications for the competitiveness of their economic operators.


Franziska Sucker
Associate professor, University of the Witwatersrand, Johannesburg.
Article

Snapshot of the EU Soft Law Research Landscape

Main Issues and Challenges

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords soft law, normativity, bindingness, directive-like recommendations, hybridity
Authors Petra Lea Láncos
AbstractAuthor's information

    Inspired by research into international soft law norms, the last two decades have seen an intensified investigation of the non-binding measures of the EU. With the proliferation of such norms at EU level, attempts at a taxonomy of EU soft law have been undertaken. The present paper tries to map the current status of EU soft law research, highlighting possible directions for future research.


Petra Lea Láncos
Researcher, Deutsches Forschungsinstitut für öffentliche Verwaltung, Speyer; associate professor, Pázmány Péter Catholic University, Budapest.
Article

The Case of the Hungarian Constitutional Court with Environmental Principles

From Non-Derogation to the Precautionary Approach

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords Constitutional Court of Hungary, environmental issues, non-derogation principle, precautionary principle, Article P of the Fundamental Law of Hungary, right to a healthy environment
Authors Gyula Bándi
AbstractAuthor's information

    Principles influence legislation, implementation and enforcement of the law to a great extent. This is especially the case with those fields of law, which are relatively new and subject to constant changes, such as environmental law. Principles have legal value, among others to fill legal gaps or to assist proper interpretation. It is always expedient to have a high-level judicial forum for legal interpretation at national level this would be a constitutional court or a supreme court. Legal interpretation can be particularly tricky when principles are combined with human rights. Constitutional courts, such as the Hungarian Constitutional Court are the preferred choice for such legal interpretation, since human rights are normally enshrined in the constitutions. In Hungary both the previous (1989) Constitution and the currently effective Fundamental Law of 2011 contain express and rather similar provisions regarding the right to environment, the content of which need clarification. Beside this similarity, the Fundamental Law has several other additional provisions supporting interpretation in the interests of the environment. This paper only presents – as examples of necessary interpretation – two principles to illustrate what the right to environment actually means. These are the non-regression (non-derogation) and the precautionary principles, which will be described both in general and in light of their current Hungarian interpretation. Non-regression (non-derogation) basically represents a decent minimum that should not be contravened, while precautionary principle is more in flux, a moving target, focusing on likely consequences, with scientific uncertainty at its core. Both principles will be introduced through the decisions of the Hungarian Constitutional Court.


Gyula Bándi
Jean Monnet professor of law, Pázmány Péter Catholic University, Budapest; Ombudsman for future generations.
Article

From International Law in Books to International Law in Action

ELTE Law School’s Jessup and Telders Victories in 2019

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Authors Gábor Katjár and Katalin Sulyok
Author's information

Gábor Katjár
Associate professor, ELTE Law School, Budapest, and coach of ELTE Jessup Team since 2010 as well as coach of ELTE Telders Team since 2016.

Katalin Sulyok
Senior lecturer, ELTE Law School, Budapest, and co-coach of ELTE Jessup Team in 2015, 2017 and 2019; co-coach of ELTE Telders Team in 2019.
Article

“Land of Confusion”

Social (Fundamental) Rights and the Provisions of the Fundamental Law in Light of the Practice of the Constitutional Court of Hungary

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords Constitutional Court of Hungary, social rights as fundamental rights, right to social security, state goals, social security system of Hungary
Authors István Hoffman
AbstractAuthor's information

    Modern welfare democracies developed different approaches to social rights. This paper briefly reviews the different models for the institutionalization of social rights as fundamental rights in modern democracies. In Hungary, the approach to social security has been significantly transformed by the Fundamental Law. For this reason, the paper reviews the approach of the Hungarian constitutional system to the right to social security between 1989 and 2011 and introduces the current position of social rights in the Hungarian legal system. This is done through and assessment of the provisions of the Fundamental Law and the current case-law of the Constitutional Court of Hungary.


István Hoffman
Professor of law, ELTE Law School, Budapest.
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