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Abstract

This paper discusses the Hungarian constitutionalism and the emergency model which can be called an ‘autocratic’ emergency model in which the government’s main aim is to create an emergency regime without real threat. That was the case in Hungary before 2020, but as the new coronavirus flourished the Hungarian constitutionalism and the rule of law withered. As the article asserts the declaration of the state of danger was unconstitutional because human epidemic is not involved in the listing of the constitution. The constitutional concerns have become even more complicated after the acceptance of the “Enabling Act” which gave unconstrained power for the Government. The spirit of Carl Schmitt’s theory is again emerged. As the coronavirus and its immediate effect necessitated extra-legal measures, the threshold between the rule of law and exceptionalism was fading swiftly and legal constitutionalism became a pleasant memory.

In: Review of Central and East European Law
Author: Elizabeth Craig

Abstract

The precise form of internalization of the provisions of the Council of Europe’s Framework Convention for the Protection of National Minorities in domestic law is crucial in ensuring its long-term effectiveness. Experiences in the Western Balkans raise important questions about the role of minority (or community) rights legislation in deeply divided societies. This article uses the case-studies of Bosnia and Herzegovina, Kosovo and the Republic of North Macedonia to highlight key themes and limitations that have emerged. Comparative analysis reveals a surprising divergence of approaches to internalization in the region. The article further demonstrates that the ‘nation-cum-state paradigm’ remains prevalent, despite the premise of universality. It argues that such legislation can play an important symbolic and practical role, but that legal internalization needs to be seen as an ongoing process. It concludes that attention needs to be given to ensuring the continued particularization and adaptation of such legislation in light of both the limitations and changing circumstances, providing a key lesson also for other divided societies.

In: Review of Central and East European Law
In: Review of Central and East European Law

Abstract

Ever since it was announced in Madison v. Marbury, and articulated in Baker v. Carr, the political question doctrine that tends to exclude ‘mega politics’ from judicial check has been a controversial tool of judicial abstention. Not only that it is not universally applied, but it seems also to be losing significance even in countries of its usual influence due to extensive judicialization of ‘mega politics,’ which implies that there is no claim which the courts will not hear. Based on the judicialization of the Kosovo conflict, this paper shows why the doctrine deserves to be revived and even transplanted in jurisdictions outside its usual reach, particularly in disputes regarding real-life unilateral secession.

In: Review of Central and East European Law
Author: Jan Podkowik

Abstract

The article discusses the concept of personal autonomy as a constitutional fundamental right protected by the Polish Constitution of 1997. Autonomy is not only a constitutional value of an unspecified character but also a right with its own specific normative content. Personal autonomy, also called the right to self-determination, is rooted in natural law. The scope of its constitutional protection is determined and – simultaneously – limited by constitutional standards of an absolute character such as human dignity, non-discrimination, and the like. Autonomy as a constitutional right may be subjected to further restrictions imposed by the legislator in accordance with the principle of proportionality. The legal status of an individual’s right to self determination is thus determined by all the prohibitions and orders resulting directly from the Constitution as well as sub-constitutional statutory provisions which respect the principle of proportionality requirements.

In: Review of Central and East European Law
Author: Maren Krimmer

Abstract

The Crimean conflict has been a challenge to the international community not only politically since the role of international law has now been questioned, especially concerning its interpretation and even applicability. As Crimea now falls into the category of an annexed/occupied territory, it is worth examining whether effective protection is afforded to property rights relating to foreign direct investments (fdi s) on Crimean territory. Foreign Direct Investments are usually protected by bilateral investment treaties (bit s) and this paper examines whether the Russia-Ukraine bit can guarantee an effective protection for property and also what other tools may exist for guarantee this protection. The article shows that there are two different “toolkits” which can protect investors’ property rights. Thus, not only the Russia-Ukraine bit can guarantee effective protection of property protection but also another tool, which is the European Convention on Human Rights. Both tools, the Russia-Ukraine bit and the echr protect the property rights and can co-exist.

In: Review of Central and East European Law
In: Beyond Autonomy
In: Beyond Autonomy
In: Beyond Autonomy
In: Beyond Autonomy