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The review essay discusses current critical approaches towards international human rights regimes and categorises them according to their normative, functional, and methodological bases. The paper builds on four recent books which are examples of current relevant positions in human rights scholarship. The books focus, respectively, on a critical examination of human rights historiography, on the functioning of international human rights regimes, on their legitimacy, and finally on the impact of international human rights in the national context. We claim that despite the different backgrounds and topics of the books, all these works can be clustered around three kinds of issues: (1) normative concerns, i.e. those denouncing the very existence and content of international human rights regimes; (2) functional concerns, i.e. those asking whether international human rights bodies have a real effect on the quality of human rights protection in individual countries. (3) Finally, the third group of concerns is driven by the increasing need for the implementation of both qualitative and quantitative methods challenging previous empirical findings (and the lack thereof) on the functioning of human rights regimes. We argue that some positions are practically irreconcilable and that the debate will probably continue for some time without reaching common ground.
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The essay deals with the global historical development of the human rights doctrine and its role in modern politics from a Czech, Czechoslovak and East-Central European point of view. It draws on recent revisionist historiography of human rights the main characteristic of which, described at the beginning of the essay, is the reconstruction of the human rights doctrine as an epiphenomenon of major historical political conflicts. Then, the author turns to the comeback of human rights as a universalistic concept during the Second World War and the Allied struggle against Nazism. He continues with tracing down the general development during the Cold War leading to the promotion of human rights as a part of binding international law since the mid-1970s. Further, the Czechoslovak postwar situation is analysed starting with the Stalinist Constitution of 1948 up to the dissident struggle for human and civil rights during the last two decades of the communist dictatorship. The last part of the essay examines the rise of liberal internationalism and humanitarian interventionism in the post-1989 period and strives to specify the Czechoslovak and Czech development within a broader context, finishing with a plea for understanding human rights as a space for political deliberation, dialogue and contest.
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In recent years the international landscape has undergone major shifts and deep transformations. These facts are mirrored in the academic literature introducing concepts of Global International Relations, pluralization of agency and norms contestation. Particularly, European studies is now confronted with a challenging task to contribute to the identification, analysis and further outline of the appropriate strategies for the EU in this new complex and more demanding reality. One of the latest conceptual attempts proposes solutions which ‘make sense of our multipolar order and…reconstitute European agency in a non-European world’ arrived in the package of the so-called ‘Decentring agenda’ (Nikolaïdis & Fisher Onar 2013). Recently authors have delivered on the operationalization of the decentring agenda into various spheres of scientific inquiry dealing with European affairs (Keukeleire & Lecocq, 2018). This article aims to further extend the reach of decentring, specifically towards practical application of decentring in strategic policy planning and policymaking. The EU’s External Human Rights Policy (EHRP) is a particularly sensitive subject calling for the application of the decentring approach. Particularly in this paper, decentring is demonstrated and illustratively applied on the very basic, direct and strategic level of Human Rights and Democracy Country Strategies (HRDCS). It intends to fill the small but crucial gap between academic conceptual work, which is still not fully in touch with practical application, and the demand from the side of policymakers who lack time for study and ‘translation’ of conceptual innovations stemming from political theory and political science into their daily practice.
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This article aims to analyze the European Union law in terms of the jurisdiction applicable in cases of infringement of personal rights on the Internet. After a short introduction to issues of technical, technological and civilizational progress, consideration is given to the fact that the Internet has become a common platform of human activity. The role, characteristics, and specificity of this state of affairs are presented, and the consequences assessed. The paper then turns to the fact that the problem of determining the applicable jurisdiction in the European Union law is based on general terms from which there are normative exceptions. Such exceptions include a special jurisdiction mechanism that is analysed in this paper. With regard to the case-law of the Court of Justice of the European Union, the paper proposes ways the jurisdiction of European Union Member States should be determined in cases of infringement of personal rights on the Internet. The paper also contains postulates related to the interpretation of relevant Union legislation, which are directed to legislative and judicial authorities. The discussion is closed with a brief summary of the authors’ reflections on the analysed issues, as well as some comments on the recent relevant cases.
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O perspectivă interesantă şi lămuritoare asupra problematicii drepturilor omului ne oferă Marchel Gauchet în două dintre lucrările sale: Ieşirea din religie, publicată la Humanitas şi La democratie contre elle-même, apărută la Galimard. Această perspectivă continuă viziunea pe care autorul francez o propune în lucrarea ce l-a făcut faimos Dezvrăjirea lumii. O istorie politică a religiei, titlu cu rezonanţe weberiene. Contextul în care este situată problematica drepturilor omului şi a înţelegerii problemelor actuale ale lumii, care nu vizează doar structurile politice ci şi relaţiile interumane, cele cotidiene, este cel al naşterii statului. Această problematică este şi cea a raporturilor dintre religie şi societate şi se referă şi la întrebarea dacă religiosul e consubstanţial socialului, având în vedere că religiosul este, conform autorului, prezent şi în mişcări explicit antireligioase şi că s-a strecurat şi în mişcările şi ideologiile totalitare, care sunt fundamental antireligioase. Deşi religiosul este prezent mereu în istorie şi a fost o constantă a societăţii umane, acest lucru nu îl scuteşte de statutul de fenomen istoric, care are, aşadar, un început şi un sfârşit. Acest sfârşit nu semnifică dispariţia religiei, nici măcar în formă instituţională. Religia provine dintr-o instituire socială. Ea nu este rezultatul unei constrângeri, ci, paradoxal, al unei alegeri ce se pierde în antropogeneză. Chiar şi aşa religia reprezintă manifestarea unei structuri antropologice, care, chiar dacă religiile sunt marginalizate şi reduse pe plan social şi politic, funcţionează sub alte forme. Instituirea religioasă a socialului, a omului este paradoxală pentru că este o instituire a omului împotriva lui însuşi, fiind o respingere a „propriei sale prize transformatoare asupra organizării lumii sale”. Ceea ce este respins în această organizare socială, politică şi psihică a omului este ceea ce e mai specific omului, adică ruptura şi confruntarea cu ceea ce există, cu natura. E vorba de respingerea incapacităţii omului de a se împăca cu situaţia, cu instalarea în real, de respingerea neliniştii şi a impulsului transformator ce definesc, conform lui Gauchet, omul. Este un refuz al propriei fiinţe, de o aplicare a negaţiei asupra puterii sale constitutive. Omul pur şi simplu respinge propriul său statut de creator şi asumarea aceastei puteri. Religiosul şi societatea întemeiată pe religie este cea a deposedării de sine, a deposedării celor vii şi vizibili în favoarea fundamentului, care se află în spate, în trecut. La baza acestei atitudini şi relaţii cu semenii şi cu realul se află ideea de îndatorire sau de datorie faţă de strămoşi, aşadar faţă de fundament şi de sursă. Ceea ce are valoare paradigmatică este în trecut, în afara puterii de intervenţie şi de invenţie a omului, cutumele, gesturile şi comportamentele paradigmatice trebuind păstrate cu orice preţ; religiosul este mobilul pus în slujba imobilului, este neacceptarea pusă în favoarea acceptări, a inserţiei în lume. Omul este deposedat de suveranitatea sa, în termeni mai moderni.
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Informed consent is an instrument aimed at protecting the right to autonomy and dignity of human subjects participating in biomedical research. In this article, a series of forms of consent are presented, which together with informed consent, ensure the observance of these rights in accordance with the international law of human rights: delegated consent, broad consent and consent assent (in the case of minors). A series of normative acts issued by the United Nations, aplicable at a global level, or as part of the normative system of the Council of Europe and of the European Union, aplicable at an European level, are analyzed, as well as their reflection in the normative acts enforced, at a national level, in Romania.
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In this study, the author aimed to analyze the principle of protection of the debtor in the enforcement of taxes by reference to the provisions of the Fiscal Procedure Code in conjunction with the provisions of the Code of Civil Procedure, in order to detect the similarities and differences between the fiscal enforcement procedure and the common law enforcement procedure. Thus, the author highlighted the manifestations of this principle in the legal relations of fiscal law, reaching the conclusion that the debtor benefits, within certain legal limits, a stronger protection compared to the civil enforcement procedure. The author also made proposals for the application of the principle of protection of the debtor in accordance with the interest of collecting taxes to the public budget.
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Vavrick’s judgment against the Czech Republic, issued by the Grand Chamber of the European Court of Human Rights, raises the issue of the obligation to vaccinate children imposed by the law of the Czech Republic. The Court simultaneously examined five complaints concerning the refusal to admit children to kindergarten due to their non-vaccinations and one concerning a father of two children who was fined an administrative penalty for failure to comply with a statutory obligation. The applicants alleged violation of the right to respect private and family life (Article 8 of the ECHR) and of the right to freedom of thought, conscience and religion (Article 9 of the ECHR). The Court therefore examined whether the interference in the form of an infringement of physical integrity was justified, examining whether it was lawful, justified by a legitimate aim and whether it was necessary in a democratic state ruled by law. Ultimately, the Tribunal supported the position that there had been no violation of the provisions of the Convention, explaining that it was a response to an urgent social need, and the choice of the measure chosen by the Czech legislator was supported by appropriate arguments. Moreover, the judges stated that despite the existence of a legal obligation, vaccination was not compulsory.
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The aim of this paper is to analyse the judgment of Federal Constitutional Court (FCC) in Germany, issued in March 2021. Both the seminal character of this judgment as well as its influence on the jurisprudence of the other European courts in climate-related cases encouraged the author to conduct this research. The FCC stated that achieving climate neutrality has become a new constitutional duty of the public authorities. In this context, the research hypothesis is that the latest judgment confirms the ongoing process of the greening of human rights in the constitutional legal order in Germany. At the same time, new human rights and liberties connected with climate neutrality may arise. This paper will contribute to the discussion on the current challenges related to the implementation of the European Green Deal, which the FCC as well as the judiciary of other European countries must face. The role and the meaning of climate neutrality as a new, constitutional value are analysed. The article mostly applies the legal-dogmatic methodology. The final conclusions are as follows. In the latest climate-related jurisprudence, the FCC concentrates mostly on the constitutionality of the goals of the regulation, and on the means used to achieve climate neutrality in a timely manner. However, in the next years the scope of the accountability of the government could be significantly broader. It cannot be ruled out that after 2030 the FCC will be obliged to assess not only the compliance of the goals of the regulations with the constitution, but also the efficiency of the adopted solutions. According to the author, until that time the judicial, progressive interpretation of Basic Law will confirm the increasing role of climate neutrality as a new, constitutional value.
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The securitization of the COVID-19 pandemic allowed governments in democratic countries to introduce extraordinary management measures that involved limiting various human rights. However, sound democratic governance always requires public debate on any policies introduced. These debates occur in multiple arenas and the parliament is among the most notable. In the context of human rights, some studies identified parliament as one of the most important agencies that promote human rights protection and oversee executive authorities (Lyer, 2019; Ncube, 2020). This article examines whether and how Lithuanian parliamentarians and government members addressed human rights during the Seimas debates when issues related to the COVID-19 pandemic were discussed. It investigates whether the Seimas could be considered an important agent contributing to the oversight of human rights in Lithuania. The article employs transcripts from the Seimas plenary debates as a data source, particularly speeches from the government question time from 2020.03 to 2021.01. The results of the qualitative thematic analysis revealed that human rights were generally not the main topic of the COVID-19 pandemic debates on the Seimas floor during government hours. It also showed that the attitudes of political parties toward specific human rights tended to shift when they switched from the opposition to the ruling majority and vice versa.
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The publication is devoted to a review of scientific publications of foreign scientists on the regulation of cyberspace. Emphasis is placed on the interest of foreign science in this field, on the one hand, and the lack of a unified strategy for the study of cyberspace, on the other hand. Special attention is paid to the human right to data confidentiality in cyberspace.
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In the Republic of Austria, until the end of 2021, supporting an individual in his or her suicide was punishable by the law which reads as follows: „Whoever incites or assists another person to commit suicide shall be liable to imprisonment for a term of between six months and five years”. The Constitutional Tribunal (Verfassungsgerichtshof - VfGH), in a court ruling of 11 December 2020, lifted the prohibition of assisting in suicide, with effect from 1 January 2022. At the same time, VfGH called on the legislator to adopt abuse prevention measures. The executive and legislative bodies responded to the VfGH’s call and as a result changed the law in Austria with regard to assisted suicide in early 2022 in a way that corresponds to the interpretation of constitutional regulations by the VfGH. The aim of the paper is to analyse and assess the scope and significance of the normative change in the Austrian legal system initiated by the VfGH ruling. In the course of the undertaken research, the hypothesis was verified that on January 1, 2022, there was a change in the Austrian legal system of fundamental significance in terms of the most important fundamental rights of an individual, in particular his/her right to self-determination. The research was conducted primarily with the use of the dogmatic-legal method.
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CJEU, Sixth Chamber, decision of September 2, 2021, case C-932/19.
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CJUE, Camera întâi, hotărârea din 22 aprilie 2021, cauza C-485/19.
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This article is a foray into the EU and US long attempt to balance two polarizing issues: copyright protection and artistic freedom as part of the fundamental right of freedom of speech. It first reviews generally how sampling became so important nowadays and it then digs into the murky case-law of the European courts, the Court of Justice of the European Union and the courts of the United States, respectively. Among all the above, it is the US jurisprudence that has the longest history, and time conferred the courts the chance to formulate and polish the concepts underlying this topic, such as the limits of copyrights and derivative works, de minimis test for non-infringing use, and, the most important, the fair use doctrine and transformative paradigm. After a close look to various approaches, it becomes obvious that the fair use doctrine accommodates best this new reality of new musical works built on existing records and, being a case-law concept, it has the prerequisite to keep pace with the technological development. Hence, this article naturally gets to the point where some de lege ferenda proposals are identified for the E.U legislators that would give the member states more room to strike a fair balance between copyright protection and artistic freedom in the music industry.
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Review of: Mircea Stănescu, Procesele reeducării 1952-1960. – Chișinău: Cartdidact, 2021. – 356 p. / Mihail Cotorabai, Report on the observance of human rights and freedoms in the Republic of Moldova in 2019. – Chișinău: Tipografia Centrală, 2020.
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The importance of criminal law protection of honor and reputation and imprecise legal conceptual determination of insult, as a basic and general criminal offense against honor and reputation, pointed to the need to determine in theory and court practice the parameters that will help the courts when deciding whether in the particular case the criminal offense of insult exists or not. On this occasion, an objective criterion is applied, according to which an insulting statement is assessed from the aspect of existing customary, moral, and other norms in specific time and space. The variability of the concept of honor, which often changes its content and scope, also creates the need for language analysis of the degrading statements, which can sometimes be helpful in assessing whether in a particular case there is a criminal offense of insult or not. Connecting law with linguistics provides an interdisciplinary overview of the relationship of language, style, and composition of legal documents and their conditionality by specifics of individual fields of law. The attitude to the use of language which exists in legal theory and practice is significant and worth studying, and in the focus of interdisciplinary contribution to this issue, there is a criminal law overview of the use of language tools in criminal offenses against honor and reputation. The legal part of the analysis was used, above all, the dogmatic method in order to determine the true meaning of the analyzed norms, and the normative method as a method of studying the social function of the norms. The historical method was used to show the criminal protection of honor and reputation in various historical periods, which was accompanied by the use of the sociological method to explain social factors of occurrence and development of the phenomena. In order to assess existing normative solutions, the axiological method was used. The language analysis of the criminal offense of insult was performed using a descriptive method, and the content analysis was used as a research technique. For the purposes of research, a special sample was formed, which consists of thirty judgments for the criminal offense of insult. In the corpus of the court judgments of Kragujevac courts, the repertoire of lexical assets used for the purpose of injury to honor and reputation was separated. Sublings of the mother, pejoratives, vulgarism, metaphorical nominations with negative connotation, and lexemes marked by the bearer of socially unacceptable traits and ethnicities used with derogatory meaning are among the most common funds. Public insults in writing, in the form of comments on social networks or forums, have greater weight than orally imposed insults in the presence of several faces.
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