Search
Search Results
-
The Constitutional Obstacles before the Promulgation of the Rome Statute
45-59Views:333July 17, 1998, can be considered as one of the most important milestones of the international judicial structure: it is the day when the Rome Statute of the International Criminal Court was adopted by 120 states out of 148. Article 86 of Statute explicitly states that „States Parties shall […] cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” As in the case of every international treaty, the principle of pacta sunt servanda enshrined in Article 26 of the 1969 Vienna Convention on the Law of the Treaties states applies, which explicitly states that “every treaty in force is binding upon the parties to it and must be performed by them in good faith.” As has been pointed out by the Permanent Court of International Justice, contracting states must make all the necessary internal measures which are required to fulfil its international obligations rising from a binding treaty. One could ask, why is this quite obvious argument important in the case of Hungary? Well, Hungary has ratified the Statute but still has not implemented it in its internal legislation. This can be considered as a serious constitutional omission, since if the Court would require the cooperation of Hungary – e.g. in the case of an arrest warrant – and it would not be able to fulfil it because of the lack of the internal legal norms, it would be considered as international legal responsibility of Hungary. In this article, I try to explore the reasons behind this omission and outline the possible solutions.
-
A Missed Opportunity: the Judgement of the International Court of Justice on the Environmental Related Legal Dispute of Costa Rica and Nicaragua
181-199Views:379This article introduces and evaluates the judgment of the International Court of Justice (ICJ) regarding the case concerning certain activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) proceedings joined with construction of a road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica) from an environmental point of view. The case was one of the latest environmental related affairs before the ICJ and the Hungarian literature had been looking forward with great expectation regarding the Court’s award. The conclusion of this essay is that in spite of the nature of the dispute, the symmetry of the conflict and the constant need for the improvement of the general international environmental law, the ICJ missed the opportunity to develop international environmental customary law and the case will stay in the shadow of the ICJ’s previous judgement on Pulp Mills on the River Uruguay.
-
Hungarian legislative changes induced by the case-law of European Court of Human Rights
109-122Views:147Indisputably, the European Court of Human Rights (ECtHR) has an effect on national legal systems. In this study I examine the type of this effect in the Hungarian legal system through the case law of the year 2014, and as an outcome, I would like to demonstrate that the ECtHR has both direct and indirect impacts on the national legislation in Hungary. As a result of the judgments’ direct impact, changes are made in the national legislation, meanwhile the indirect impact can only be detected in the decisions of the Hungarian Constitutional Court or domestic courts. Obviously, the direct impact is the most significant and most noticeable, however, the significance of indirect impact has been gradually increasing in the recent period. Based on this idea, I would like to point out that both effects are present in the Hungarian legislation, and seem to show an increasing trend, although the judicial bodies mean an exception in this practice. Nonetheless, according to the European practice, the judicial bodies will most likely refer to the international norm and the case law of the ECtHR in the near future.
-
Luxembourg v Strasbourg – Legal Impediments in the Process of the Accession of the EU to the ECHR
101-119Views:124The accession of the European Union (EU) to the European Convention on Human Rights (ECHR) has been on the agenda of the EU for long. Although the Lisbon Treaty settles this question in theory by obliging the EU to accede, the European Court of Justice (ECJ) resorted to its rights laid down in the Treaties and published its Opinion 2/13 on the matter by the full Court. This opinion scrutinizes the draft document concerning accession. According to the opinion the EU cannot accede to the ECHR in the present form because the draft document is not in compliance with the special characteristics and features of EU law, therefore it would require the amendment or reorganisation of the whole EU legal system. By this judgement the ECJ outlines the legal impediments in the way of the accession. The main objective of our article – after summarizing the brief history and legal framework of the accession – is to present and evaluate the critical elements of accession determined by the ECJ and predict the decision’s possible consequences.
-
Judicial Review in Emergency Situations: the Relevant Case Law of the European Court of Human Rights
200-218Views:129Emergencies are mostly sudden, and in most cases states need special measures to deal with them. For this reason liberal democracies have standing constitutional or special legal powers to derogate human rights for the sake of order. Those democracies that do not have such powers, use impromptu ones. It is possible for authoritarian governments to abuse emergency powers in order to stay in power, to derogate human rights and to silence the opposition. Therefore it is essential for a liberal democracy to have strict limits for the duration, circumstance and scope of emergency powers. There are human rights regimes (for example: the European Convention on Human Rights) which have to respect the member states’ duty and responsibility in such cases. This article tries to examine this special case law of the European Court of Human Rights. The question is whether a European Human Rights regime is capable of becoming the guardian of human rights in cases of national emergencies, or the sovereignty of states also means that there is very narrow margin to prove legality above security?
-
The Judicial Protection of the Basic Structure of the Constitution: the Practice of Judicial Review of Constitutional Amendments in India
132-148Views:125One of the rare but more prominent cases of judicial protection of the existing constitution is the revision of constitutional amendments. From among courts that review amendments, this study presents India’s Supreme Court’s practice, which is regarded as a model. India’s constitution does not contain any unamendable provisions or explicit authorization for judicial control over constitutional amendments, yet the court reviews constitutional amendments on grounds of protecting the constitution’s basic structure. India’s Supreme Court’s practice is a typical example of a court imposing an implicit limitation upon constitutional amendments. Therefore, before analyzing the basic structure doctrine, the study briefly examines the nature of the implicit limitations of constitutional amendments and some issues that may arise in their justification.