Effective Participation of National Minorities in Public Affairs in Light of National Case Law

2009 ◽  
Vol 16 (4) ◽  
pp. 621-642 ◽  
Author(s):  
Joseph Marko
Keyword(s):  
Ethnic Diversity ◽  
Legal Status ◽  
Minority Groups ◽  
Case Law ◽  
Public Affairs ◽  
Constitutional Courts ◽  
National Courts ◽  
National Minorities ◽  
Nation States ◽  
Protection Mechanisms

Based on different concepts of nation-states, the article tries to demonstrate through the analysis of decisions of national courts that despite the same wording of the constitutional text, supreme and constitutional courts may come to totally differing conclusions in light of the constitutional history and doctrine of the respective country. The first part of the article gives an overview on case-law denying effective participation through non-recognition of ethnic diversity as a legal category, for instance through the ban of the formation of political parties along ethnic lines or through interpretative preemption of the legal status of minority groups. The second part of the article gives an overview of various legal mechanisms in order to enable, support, or even guarantee the representation and process-oriented effective participation of minorities in elected bodies, such as exemptions from threshold requirements in elections or reserved seats in parliament, and through cultural and territorial self-government regimes in those constitutional systems which legally recognize ethnic diversity. Nevertheless, the case-law demonstrates how difficult it remains to reconcile the notion of "effectiveness" with a positivistic and formal-reductionist understanding of terms such as equality, sovereignty, people or nation. The Lund Recommendations have served as an important guideline for a new, "communitarian" understanding of "effective" participation so that the author argues in conclusion that it requires more intra- and inter-disciplinary dialogue between law, politics and (legal) philosophy as well as between national and international minority protection mechanisms to "constitutionalize" this philosophy.

scholarly journals General and Particular Approaches to Implementation of theEuropean Convention on Human Rights

2018 ◽  
Vol 55 ◽  
pp. 248-292
Author(s):  
VLADIMÍRA PEJCHALOVÁ GRÜNWALDOVÁ
Keyword(s):  
Human Rights ◽  
National Level ◽  
Case Law ◽  
European Convention ◽  
Constitutional Courts ◽  
The Czech Republic ◽  
Human Rights Protection ◽  
Rights Protection ◽  
National Courts ◽  
European Court

AbstractThis article deals with the implementation, at the national level, of European human rights protection standards as enshrined in theEuropean Convention on Human Rights(ECHR) and interpreted by the European Court of Human Rights (ECtHR). It discusses the principles of interpretation of theECHRby the ECtHR, the interaction and mutual dialogue between the ECtHR and national courts, and the approach of the latter to interpretation and application of the case law of the ECtHR. Using the concrete examples of France and the Czech Republic as case studies, it is shown to what extent and how European constitutional courts take into account and apply the letter of the Convention and its interpretation by the ECtHR.

El Estatuto de los electos locales

2017 ◽  
pp. 367-470
Author(s):  
Carmen ALONSO HIGUERA
Keyword(s):  
Legal Status ◽  
Case Law ◽  
The State ◽  
Constitutional Courts ◽  
Special Configuration ◽  
Bundle Of Rights

LABURPENA: Lan honen helburua gaur egun toki-hautetsiaren estatutu juridikoa integratzen duten eskubide, prerrogatiba, betebehar eta erantzukizunen multzoa aztertzea da, aldez aurretik lege-esparruaren osaera berezia zehaztuz eta, ondoren, estatutu horren eduki zehatza aztertuz estatu mailako oinarrizko legedian eta Auzitegi Gorenaren eta Auzitegi Konstituzionalaren jurisprudentziaren balizko interpretazioan, eta EAEko legedi autonomikotik eratorritako espezialitateak aintzat hartuz: azkenik, tokiko erregelamendu organikoek betebehar horretan izan dezaketen funtzio garrantzitsua jorratu da. RESUMEN: El objeto de este trabajo radica en analizar el conjunto de derechos, prerrogativas, deberes y responsabilidades que integran el estatuto jurídico del electo local en la actualidad, determinando previamente la especial configuración de su marco legal, para después analizar sucesivamente el contenido exhaustivo de este estatuto en la legislación básica estatal y su eventual interpretación por la Jurisprudencia del Tribunal Supremo y del Tribunal Constitucional, las especialidades derivadas de la legislación autonómica vasca y, finalmente, el importante papel que pueden tener en esta labor los Reglamentos Orgánicos locales. ABSTRACT: The scope of this work lies in analyzing the bundle of rights, prerogatives, duties and responsibilities that at present are part of the legal status of the local elected members, by previously determining the special configuration of their legal frame and then successively analyzing the exhausting content of this status in the State basic legislation and its possible interpretation by the Supreme and Constitutional courts case law, the specialities resulted from the Basque autonomous legislation and finally the important role that Local organic rules may have in that task.

scholarly journals Geographical, Historical and Political Conditions of Ongoing and Potential Ethnic Conflicts in Central and Eastern Europe

2019 ◽  
Vol 26 (1) ◽  
pp. 149-173 ◽  
Author(s):  
Marek Barwiński
Keyword(s):  
Eastern Europe ◽  
Ethnic Diversity ◽  
Western Europe ◽  
Central And Eastern Europe ◽  
Minority Groups ◽  
Ethnic Conflicts ◽  
Interethnic Relations ◽  
Economic Changes ◽  
National Minorities ◽  
Foreign Policies

For centuries Central and Eastern Europe has been the scene of frequent changes of borders and numerous ethnic conflicts. Contemporary ethnic diversity of this region is much smaller, however, the growing nationalisms of the various societies, mutual mistrust, and the temptation of politicians to use ethnic issues in the regional geopolitical competition pose a real threat to the stability and peace in Central and Eastern Europe. The dynamic political, legal, social and economic changes which have been taking place in this part of Europe for three decades now, which overlay its clear civilization division into the Latin and the Byzantine parts and are intensified by historical animosities, must have had an impact on the situation and the perception of minorities. In contrast to Western Europe, the contemporary ethnic diversity of Central and Eastern Europe is primary the consequence of various, often centuries-old historical processes (settlement actions, voluntary and forced migrations, border changes, the political and economic expansion of particular countries), and in the ethnic structure especially dominate the indigenous groups, migrants, particularly from the outside of the European cultural circle, are of marginal importance. Moreover, national minorities are usually concentrated in the border regions of countries, often in close proximity to their home countries, becoming – often against their will – element of the internal and foreign policies of neighbouring countries. The main aims of the article are to explain the threats to peace arising from the attempts to use minorities in inter-state relations and regional geopolitics as well as engaging minority groups into ethnic and political conflicts (autonomy of regions, secession attempts) and still the very large role of history (especially negative, tragic events) in the shaping of contemporary interethnic relations in Central and Eastern Europe. However, the varied ethnic structure typical for this region does not have to be a conflict factor, on the contrary – it can become a permanent element of the identity and cultural heritage of each country.

scholarly journals Antitrust Private Enforcement and the Binding Effect of Public Enforcement Decisions

2020 ◽  
Vol 3 (2) ◽  
pp. 51-80
Author(s):  
Miguel Sousa Ferro
Keyword(s):  
Legal Status ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
Public Enforcement ◽  
Binding Effect ◽  
National Courts ◽  
National Competition ◽  
The Subject ◽  
To Come

This paper provides an overview of the legal status quo in the European Union relating to the binding effect, in follow-on competition law cases, of public enforcement decisions, as well as of some of the legal issues which are likely to be the subject of controversy in years to come, in this regard. It tackles decisions declaring antitrust infringements adopted by the European Commission and by national competition authorities, as well as commitment decisions and decisions declaring infringements of merger control and State aid rules. It discusses the material, subjective and temporal scope of the binding effect. It also tackles other issues, such as the obligations of national courts relating to non-infringement decisions and ongoing investigations, and the issue of negative declarations. Finally, it looks into the arguments which may be put forward by litigants before national courts to avoid or circumvent the binding effect of public enforcement decisions. It is argued that the case-law already provides answers to many of the issues which are likely to be raised, which one may arrive at through a systematic and coherent interpretation of the general principles of EU Law, as clarified by the Court.

National Minority Rights and Democratic Political Community: Experience and Perspective of the OSCE High Commissioner on National Minorities

2019 ◽  
Vol 48 (2) ◽  
pp. 267-272
Author(s):  
Stéphanie Marsal
Keyword(s):  
Ethnic Diversity ◽  
Minority Groups ◽  
Good Governance ◽  
Political Community ◽  
National Minority ◽  
Potential Contribution ◽  
Cultural Autonomy ◽  
National Minorities ◽  
High Commissioner ◽  
Inclusive Approach

AbstractThis article examines the OSCE HCNM experience with regard to situations where cultural autonomy arrangements exist and discusses the potential contribution of such arrangements to managing ethnic diversity. It reviews some of the salient issues that have arisen with regard to the legal and political framework of these arrangements. This article highlights the importance for bodies of cultural autonomy to comply with good governance principles, including respect for diversity within minority groups and insists on a more inclusive approach to autonomy.

New minorities, old instruments? Diversity governance from the perspective of minority rights

2016 ◽  
Vol 13 (2) ◽  
pp. 178-192
Author(s):  
Roberta Medda-Windischer
Keyword(s):  
International Law ◽  
Minority Groups ◽  
Minority Rights ◽  
Minority Protection ◽  
Common Definition ◽  
National Minorities ◽  
Scope Of Application

In international law, minority rights instruments have been traditionally conceived for, and applied to, old minority groups with the exclusion of new minority groups originating from migration. Yet, minority groups, irrespective of their being old or new minorities, can be subsumed under a common definition and have some basic common claims. This allows devising a common but differentiated set of rights and obligations for old and new minority groups alike. This paper argues that the extension of the scope of application of legal instruments of minority protection, such as the Framework Convention for the Protection of National Minorities (FCNM), is conceptually meaningful and beneficial to the integration of new minorities stemming from migration. 

The Legal Status of Local Government in South Africa under the New Constitutional Dispensation

2018 ◽  
Vol 33 (2) ◽  
Author(s):  
Mbuzeni Mathenjwa
Keyword(s):  
South Africa ◽  
Local Government ◽  
Legal Status ◽  
Case Law ◽  
The Status ◽  
History Of ◽  
The Republic ◽  
First Time

The history of local government in South Africa dates back to a time during the formation of the Union of South Africa in 1910. With regard to the status of local government, the Union of South Africa Act placed local government under the jurisdiction of the provinces. The status of local government was not changed by the formation of the Republic of South Africa in 1961 because local government was placed under the further jurisdiction of the provinces. Local government was enshrined in the Constitution of the Republic of South Africa arguably for the first time in 1993. Under the interim Constitution local government was rendered autonomous and empowered to regulate its affairs. Local government was further enshrined in the final Constitution of 1996, which commenced on 4 February 1997. The Constitution refers to local government together with the national and provincial governments as spheres of government which are distinctive, interdependent and interrelated. This article discusses the autonomy of local government under the 1996 Constitution. This it does by analysing case law on the evolution of the status of local government. The discussion on the powers and functions of local government explains the scheme by which government powers are allocated, where the 1996 Constitution distributes powers to the different spheres of government. Finally, a conclusion is drawn on the legal status of local government within the new constitutional dispensation.

The Domestication of the Convention on the Rights of Persons with Disabilities

2018 ◽  
Author(s):  
Lisa Waddington
Keyword(s):  
Direct Effect ◽  
Legal Status ◽  
Case Law ◽  
Legal Systems ◽  
Persons With Disabilities ◽  
International Treaty ◽  
Four Dimensions ◽  
Relevant Case ◽  
Similarities And Differences ◽  
Domestic Law

This chapter reflects on jurisdiction-specific approaches to the domestication of the Convention on the Rights of Persons with Disabilities (CRPD), considering in particular the domestic legal status of the CRPD and the relevance of that legal status for case law. The chapter explores four dimensions of the CRPD’s legal status: direct effect; indirect interpretative effect (where the CRPD influences the interpretation given to domestic law); use of the CRPD because of commitments to another international treaty; and absence of domestic legal status. With the exception of the first category, all dimensions can potentially present themselves in legal systems which tend towards the monist approach as well as in those which tend towards the dualist approach. The chapter discusses examples of relevant case law and reflects on similarities and differences emerging from a comparison of that case law.

Review by Constitutional Courts of the Obligation of National Courts of Last Instance to Refer a Preliminary Question to the Court of Justice of the EU

2015 ◽  
Vol 16 (6) ◽  
pp. 1663-1700 ◽  
Author(s):  
Clelia Lacchi
Keyword(s):  
European Union ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
Constitutional Review ◽  
National Courts ◽  
Court Of Justice ◽  
Judicial Remedy ◽  
The Eu

The Constitutional Courts of a number of Member States exert a constitutional review on the obligation of national courts of last instance to make a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU).Pursuant to Article 267(3) TFEU, national courts of last instance, namely courts or tribunals against whose decisions there is no judicial remedy under national law, are required to refer to the CJEU for a preliminary question related to the interpretation of the Treaties or the validity and interpretation of acts of European Union (EU) institutions. The CJEU specified the exceptions to this obligation inCILFIT. Indeed, national courts of last instance have a crucial role according to the devolution to national judges of the task of ensuring, in collaboration with the CJEU, the full application of EU law in all Member States and the judicial protection of individuals’ rights under EU law. With preliminary references as the keystone of the EU judicial system, the cooperation of national judges with the CJEU forms part of the EU constitutional structure in accordance with Article 19(1) TEU.

scholarly journals Addressing inequities in maternal health among women living in communities of social disadvantage and ethnic diversity

2021 ◽  
Vol 21 (1) ◽  
Author(s):  
Cristina Fernandez Turienzo ◽  
◽  
Mary Newburn ◽  
Agnes Agyepong ◽  
Rachael Buabeng ◽  
...  
Keyword(s):  
Ethnic Diversity ◽  
Minority Groups ◽  
Social Disadvantage ◽  
Vulnerable Groups ◽  
Socioeconomically Disadvantaged ◽  
Structural Racism ◽  
Community Stakeholders ◽  
Public Health Strategies ◽  
The Impact

AbstractThe response to the coronavirus outbreak and how the disease and its societal consequences pose risks to already vulnerable groups such those who are socioeconomically disadvantaged and ethnic minority groups. Researchers and community groups analysed how the COVID-19 crisis has exacerbated persisting vulnerabilities, socio-economic and structural disadvantage and discrimination faced by many communities of social disadvantage and ethnic diversity, and discussed future strategies on how best to engage and involve local groups in research to improve outcomes for childbearing women experiencing mental illness and those living in areas of social disadvantage and ethnic diversity. Discussions centred around: access, engagement and quality of care; racism, discrimination and trust; the need for engagement with community stakeholders; and the impact of wider social and economic inequalities. Addressing biomedical factors alone is not sufficient, and integrative and holistic long-term public health strategies that address societal and structural racism and overall disadvantage in society are urgently needed to improve health disparities and can only be implemented in partnership with local communities.

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