Bilateral Agreements as a Means of Solving Minority Issues: The Case of the Hungarian Status Law

In: European Yearbook of Minority Issues Online
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  • 1 Bogdan Aurescu has a summa cum laude PhD in Law at the University of Bucharest. He is member of the Permanent Court of Arbitration, substitute member of the Venice Commission and president of the Section for International Law of the Association for International Law and International Relations (the Romanian Branch of the International Law Association from London). Currently, he is Secretary of State in the Ministry of Foreign Affairs of Romania.

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  • 1 Act LXII of 19 June 2001 on Hungarians Living in Neighbouring Countries, amended on 23 June 2003. For the text of the law and related documents, see http://www.htmh.hu/act.htm. 2 See Zsuzsa Csergo and James M. Godgeier,"Virtual Nationalism", 76 Foreign Policy ( July-August 2001); CN (2001) 80, "Paper containing the position of the Hungarian Government in relation to the Act on Hungarians Living in Neighbouring Countries", 2 and 4. The document, sent to the Venice Commission, is not public.

  • 3 Art. 6(3) of the Hungarian Constitution sets forth: "The Republic of Hungary recognizes its responsibilities toward Hungarians living outside the borders ...". ". 4 On the issue of the exclusion of Austria and the compatibility of the Law with EU law see the 'Jurgens Report': Parliamentary Assembly of the Council of Europe, Doc. 9744 rev., report of the Committee on Legal Affairs and Human Rights, rapporteur: Erik Jurgens, para. 30; and, respec- tively, the Non-Paper issued in December 2002 by the European Commission Assessment of the compatibility of the revised draft Law on Hungarians Living in Neighbouring States with European standards and with the norms and principles of International Law (findings of the Council of Europe's Venice Commission) and with EU Law" (Appendix 3 of this contribution).

  • 5 It has to be noted that the debate over the Law evolved finally in a debate over the concept of nation. Therefore, Erik Jurgens in his report on the topic of the Hungarian Law proposed to the Parliamentary Assembly of the Council of Europe (PACE) to draft a report on the concept of `nation', questioning whether in Europe one has embraced the civic or the ethnic concept of `nation'. The report is under preparation by Gyorgy Frunda. 6 See footnote 4. 7 Report on the preferential treatment of national minorities by their kin-state, adopted by the Venice Commission at its 48Ù> Plenary Meeting (Venice, 19-20 October 2001), CDL-INF (2001)19, hereinafter "the Venice Commission's report". 8 See for this topic also Sergiu Constantin, "The Hungarian 'Status Law' on Hungarians Living in Neighbouring Countries", 1 EYMI (2001/2),593-622; Csergo and Goldgeier, "Virtual National- ism" ...; Brigid Fowler, Fuzzing Citizenship, Nationalizing Political Space: !I Framework for Inter- preting the Hungarian `Status Law'as a New Form of Kin-State Policy in Central and Eastern Europe (London, 2001). 9 For the topic of bilateral agreements concerning minorities, see Emma Lantschner and Roberta Medda-Windischer, "Protection of National Minorities through Bilateral Agreements in South Eastern Europe", EYMI (2001/2), 535-61. 10 Signed in Budapest, on 22 December 2001.

  • 11 Signed in Bucharest, on 23 September 2003. 12 See the Non-Paper of the European Commission, footnote 4. 13 See the Jurgens Report, footnote 4. 14 Resolution No. 1335 (2003), para.14, emphasis added. 15 See footnote 7. 16 For the text of the statement, see http://www.osce.org/news/generate.pf.php3?news-id=2095. 17 Treaty between Romanian and the Republic of Hungary on Understanding, Co-operation and Good-Neighbourliness (16 September 1996). See Adrian Nastase et al., Protecting Minorities in the Future Europe - Between Politicallnterest and International Law (Bucharest, 2002), 198.

  • 18 Emphasis added. 19 Nastase et al., Protecting Minorities ...,195. 20 Ion M. Anghel, The Law of Treaties, ist Volume (Bucharest,1993), 21. 21 In the text of the Memorandum of Understanding, the document is also called Agreement' (see para. 11, Part I of the Memorandum of Understanding).

  • 22 Excepting the Romanian-Hungarian political treaty, the other documents are soft law docu- ments. Although such documents are not legally binding, Romania and Hungary took them as landmarks during their consultations on the topic. 23 The Venice Commission's report, 22. 24 Ibid, 23.

  • 25 European Commission, 2001 Regular Report on Hungary's Progress towards Accession, Brus- sels 13.11.2001, SEC (2001) 1748, 91, at http://europa.eu.int/comm/enlargement/report2001/hu_ en.pdf.

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