The More the Merrier? Hungarian and Romany Minorities in Slovakia

This article discusses some important aspects of thetreatment of minorities in the Republic of Slovakia.It discusses the 1992 Constitution and subsequentdevelopments such as the State language law 1995, therestriction of political rights of Hungarians,educational policies, the setback of EU entry talks,the September 1998 general elections, the Dzurindagovernment's ``De-Meciarization', the 1999 MinorityLanguage Law, and recent electoral legislation. Thespecial condition of the Romany is considered. Theeffectiveness of international mechanisms for theprotection of minority rights (the Organisation forSecurity and Cooperation in Europe, the InternationalCovenant for Civil and Political Rights, the EuropeanConvention of Human Rights, the Framework Conventionfor the Protection of National Minorities) isassessed, as is the involvement of the EU. Finally,the role of the judiciary is reflected upon.     

Liberalism and Minority Rights. An Interview

The interview focuses on Kymlicka's major area of research, i.e., the issue of minority rights. Kymlicka explains why the rights of national minorities have been traditionally neglected in the Western political tradition. He argues that these rights promote individual freedom, and so should be seen as promoting liberal democratic principles. The interview covers many issues including the relationship between ethno-cultural groups and other forms of "identity politics"; how to individuate cultural groups with legitimate claims to minority rights; whether something like a "cosmopolitan view" can seriously challenge the need for minority rights; what are the dangers of building transnational political institutions such as the EU for democratic citizenship; what are the bases of social unity in multination states and what are the limits of toleration of illiberal minorities.     

论我国技术转让法律制度的完善——以美欧在WTO相关诉告为背景

为遏制我国进一步发展,美国和欧盟相继在WTO起诉我国存在“强制技术转让”。在澄清国内法律与WTO规则相符性的同时,我国已意识到完善技术转让法律制度的内生需要与此次美欧起诉具有相关性:我国并未出台专门的技术转让法,有关措施散见于诸多法律条文而妨碍了制度的整体效用。此外,我国未全面利用WTO例外规定对发展中国家的保护,致使本国劣势企业负担过高义务。为创设公平的技术转让法治环境并避免发达国家滥用技术保护,我国需整合有关法律规范,修正过时规定,依据技术转让所涉的贸易和投资不同属性区别立法,并积极通过国际规则寻求优惠待遇。     

Ethnic Law and Minority Rights in China: Progress and Constraints

Western discourse on human rights in China typically assumes that China's minority rights law must be a sham because China is an authoritarian state. In the 1980s and 1990s, however, China has articulated an "ethnic law" that elaborates rights and preferences that minorities value. At the same time, People's Republic of China ethnic law is inadequate to grant the idealized range of minority rights claimed by the Chinese state, and some rights are being eroded by the marketization of China's political economy. The most notable weaknesses in the ethnic law system include the failure to enlarge the scope of ethnic regional autonomy, a lack of preferential policies sufficient to offset the growth of the economic gap between Han and minority areas, and an inadequate program for overcoming antiminority bias. While an emerging minority elite is a stabilizing factor in minority‐state relations, additional measures to expand minority rights are required, some of which are suggested by the policies of other Asian states.     

Human Dignity in the EU Charter of Fundamental Rights and its Interpretation Before the European Court of Justice

This article argues that the EU Charter’s dignity provisions must be given a specific, expansive European meaning that underpins the importance the EU places on fundamental rights protection as a principle EU value. To this end, the article examines the EU Charter provisions on dignity and critically analyses the case law before the EU Charter had full legal effect and after it did. It finishes with looking at three areas in which the potential for an expansive interpretation of dignity could help bring the EU closer to its people and fully respect and protect dignity: asylum, criminal justice and sexual orientation.     

Women's Rights, the European Court, and Supranational Constitutionalism

This analysis examines supranational constitutionalism in the European Union (EU). In particular, the study focuses on the role of the European Court of Justice in the creation of women's rights. I examine the interaction between the Court and member state governments in legal integration, and also the integral role that women's advocates—both individual activists and groups—have played in the development of EU social provisions. The findings suggest that this litigation dynamic can have the effect of fueling the integration process by creating new rights that may empower social actors and EU organizations, with the ultimate effect of diminishing member state government control over the scope and direction of EU law. This study focuses specifically on gender equality law yet provides a general framework for examining the case law in subsequent legal domains, with the purpose of providing a more nuanced understanding of supranational governance and constitutionalism.     

The Cyprus and other EU court rulings on data retention: The Directive as a privacy bomb

This paper discusses the controversy surrounding the Data Retention Directive with an emphasis on the 2011 decision of the Cyprus Supreme Court which has annulled several district court orders that allowed the police access to telecommunications data relating to certain persons relevant to criminal investigations. The annulment has been on the ground that the legal provisions upon which the orders have been issued are unconstitutional. It will suggest that the decision does not entail a direct rejection of the EU Data Retention Directive and that in any event, Cyprus is not a Member State resisting the particular measure. This is because the legal provisions are deemed unconstitutional, though part of the law that has transposed the relevant Directive into national law are provisions that go beyond what the EU legislator intended to regulate through that Directive. Still, the particular Directive sits rather uneasily within the ‘human rights’ regime, in particular the one governing the individual right of privacy.     

Challenging EU constitutional law: The Italian Constitutional Court's new stance on direct effect and the preliminary reference procedure

This article seeks to examine the relationship between EU law and the Italian legal order in light of the recent Italian Constitutional Court (ICC)’s jurisprudence attempting to redefine EU core principles. When fundamental rights are at stake, three assumptions are challenged: the determination of direct effect shall be a prerogative of the ECJ; EU directly effective provisions entail the disapplication of conflicting national law; judges have the discretion to refer preliminary references to the ECJ where a clarification on EU law is needed. The contribution argues that the judicial search for a balance between sovereignty and supranationality is undermined by the ICC's new resistance to the well‐established EU jurisprudence. In that respect, the paper posits that the ICC's activism is the result of an unjustified ‘argumentative self‐restraint’ of the ECJ vis‐à‐vis the evolution of EU foundational principles.     

The Patients’ Rights Directive (2011/24/EU) – Providing (some) rights to EU residents seeking healthcare in other Member States

This article presents the main elements of Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare, commonly known as the Patient’s Rights Directive. It is the latest EU initiative with regard to European Health Care and the Single Market. The main elements of the Directive contain provisions related to the prior authorisation of health care in another Member State, the reimbursement of such health care and the removal of unjustified obstacles to achieving these aims.These provisions largely reflect the recent case law of the European Court of the Justice (ECJ). Amongst these are provisions involving the use of personal data. Such provisions will engage data protection issues and will have to be carried out according to the data protection directives. Alongside this primary aim of codifying ECJ case law the Patient’s Rights Directive also introduces novel initiatives aimed at fostering cross border cooperation between various elements of national healthcare systems.Part 1 of this contribution will describe the legal basis and the aims of the PRD, Part 2 will describe the principle obligations placed on the Member States with regard to reimbursement, Parts 3 and 4 will describe other informational and procedural requirements placed upon the Member States of Treatment and Affiliation. Finally Part 5 will outline some of the novel initiatives that have been included in the PRD.The increases in the frequency of cross border-treatment that this directive attempts to facilitate are likely to see a concurrent increase in cross-border patient information flows. Such data flows will be subject to the Union’s provisions on Data Protection. It remains uncertain whether the EU’s Data Protection regime will act as inhibitor to cross-border medical treatment or rather represent a gold standard that allows patients to engage in such activities with peace of mind. The Patient’s Rights Directive will form part of the EU’s future e-Health strategy which envisages a large increase in the fluidity of patient data. A discussion of this directive is therefore merited in this journal.     

Legal Change and Gender Inequality: Changes in Muslim Family Law in India

Group-specific family laws are said to provide women fewer rights and impede policy change. India's family law systems specific to religious groups underwent important gender-equalizing changes over the last generation. The changes in the laws of the religious minorities were unexpected, as conservative elites had considerable indirect influence over these laws. Policy elites changed minority law only if they found credible justification for change in group laws, group norms, and group initiatives, not only in constitutional rights and transnational human rights law. Muslim alimony and divorce laws were changed on this basis, giving women more rights without abandoning cultural accommodation. Legal mobilization and the outlook of policy makers—specifically their approach to regulating family life, their understanding of group norms, and their normative vision of family life—shaped the major changes in Indian Muslim law. More gender-equalizing legal changes are possible based on the same sources.     

EU Climate Change Litigation,the Role of the European Courts,and the Importance of Legal Culture

The purpose of this article is to show it is only in light of legal culture that climate change jurisprudence in the European Union can be explained. Examining the case law concerning the EU Emissions Trading Scheme, this article demonstrates that climate change proceedings in the European Union raise questions that stand at the heart of the EU legal order; that is, they demand that the boundaries of the EU's regulatory competences are drawn. In effect, the EU courts focus on ensuring that EU climate change laws are in accord with the rule of law or, in the context of EU law, the borders of the EU's environmental regulatory powers. As such, this article shows that attention needs to be given to the interaction between climate change laws and the constitutional role of the EU judiciary. These interactions are considered here together with the contingency of EU climate change litigation on EU legal culture.     

A Disabled Market: Free Movement of Goods and Services in the EU and Disability Accessibility

Individuals with a disability who wish to use goods and services can have a variety of specific needs, ranging from accessible written information to standard products and services which have disability accessibility features built into them. In light thereof, this article focuses on the impact which Community law has had, and could potentially have, on ensuring an EU‐wide market in products and services which are accessible to consumers with a disability. The article examines the (possible) impact of a variety of provisions, including the rules relating to the free movement of goods and services (Articles 28 and 49 EC, respectively), the internal market (Articles 94 and 95 EC), non‐discrimination (Article 13 EC), EU citizenship provisions, and the work of the European standardisation bodies such as CEN. The central question throughout the article is does EC law allow for, or discourage, the establishment of mandatory disability accessibility standards at the national or EU level, and have the provisions been used to permit or establish such standards to date?     

Review of N. S. Barabasheva,Legal Status of Higher Educational Institutions of the USSR

This book by N. S. Barabasheva is an integrated study of the legal status of higher educational institutions in the unitary system of public education of the Soviet state, a system that is determined by the USSR Constitution and the Principles of USSR and Union Republic Legislation on Education, the Statute on Higher Educational Institutions, and a number of other acts of positive law. The author emphasizes that the status of a higher educational institution as an institution under law is indissolubly associated with the condition, tasks, and prospects of development of higher education. The author offers an opportunity to identify the set of rights and responsibilities of higher educational institutions and the present state of legal regulation of their organization and activity, and to investigate the real opportunities for improving higher educational institutions. The study under review makes it possible to conduct an "inventory" of the provisions of law bearing on the work of higher educational institutions scattered through many legal sources and still inadequately codified, a fact that is important in terms of the drafting of the Legal Code of the USSR.     

Legal Consequences of EU Accession for Central and Eastern European Health Care Systems

Since the ratification of the Europe agreements, Eastern European accession countries are transposing community law into their national legal framework. The law approximation process in the field of health concerns three themes, viz public health, health–related issues, and the internal market. Although the health acquis has been largely focused on public–health issues, it is increasingly becoming clear that internal market treaty provisions may also affect health–related rights. For candidate member states this means that the common market has important consequences for health and their health–care systems. Therefore, this paper will examine the impact of relevant treaty provisions on acceding countries' (public) health legal framework.     

人格权法与中国民法典的制定

在制定中国民法典的讨论中 ,关于人格权法的位置安排是其中最为重要的问题之一。考察大陆法系国家民法典对人格权的规定及参照我国学者的观点 ,我们认为 ,民事主体制度 (人法 )和侵权行为法不能承担规定人格权的重担。从人格权的全面保护角度而言 ,人格权法应独立成编。以此为基础 ,本文提出了人格权法编大致的内容设计。     

The federalism dimension of proportionality

EU Treaties contain an arsenal of purpose-defined and ambiguous competences that are enjoyed by EU institutions, yet devote little attention to the restraining impact of EU competences on Member States' autonomy and policies. While the focus has traditionally been on subsidiarity to deal with competence issues, the judgment of the Bundesverfassungsgericht in Weiss revitalises the discussion on the potential of proportionality to guide competence issues. This inquiry seeks to highlight both the existing traces of competence proportionality employed by the Court to allocate competences as well as the potential of the proportionality standard to temper the spillovers on Member States' autonomy accruing from the exercise of EU competences. While the Treaty restricts proportionality to reviewing the use (not existence) of EU competences, the Court has implicitly employed proportionality considerations to verify the existence of EU competences. In addition, drawing from established case law, competence proportionality assessments could rely on an effect-based substantive review in combination with procedural duties allowing a meaningful balancing of national autonomy against the dynamics of deeper integration.     

PROPERTY RIGHTS IN INTERMEDIATED SECURITIES UNDER CHINESE LAW

This Article examines selected issues of property rights in intermediated securities under Chinese law. Part I introduces intermediated securities and the legal implications. Part II reviews Chinese property law and the property rights in certificated securities under Chinese law. Part III examines property rights in intermediated securities under Chinese law. Part IV examines the obligations of intermediaries to safeguard the property rights in intermediated securities. Part V gives proposals for remedying the defects of relevant Chinese law.     

论促进和保护受教育权的国际标准

从现有国际人权法渊源中确立促进和保护受教育权的国际标准可谓构成国际人权法的新发展 ,而从国际人权上对受教育权作出识别是确定上述标准的前提。本文根据有关受教育权的主要国际文件的统一化进程并结合国际社会的实践将受教育权归类为基本教育权、初等教育权、中等教育权、高等教育权和教育选择权 ,并依据一系列国际文件对世界各国促进和保护受教育权的义务性安排建立起国际社会促进和保护各类受教育权的国际标准模型 ,同时揭示了上述国际标准模型在适用过程中的特性。     

Cultural Minority Rights and the Rights of the Majority in the Liberal State

Traditional liberalism's blindness to cultural concerns has often come under fire, while so-called “liberal multiculturalism” (Taylor and Kymlicka) has made it its business to take a good look at the place of culture within liberal law. According to them, cultural minorities should be recognized. In my opinion, however, their proposals, in fact, almost entirely preclude the possibility that cultural minorities would receive recognition within liberal society. In what follows, I explain my view of these matters and, above all, argue for a more vital understanding of cultural minorities. This will entail presenting a comprehensive view of minority rights within liberal society.