Abstracts No 1, 2011


Rodoljub Etinski, Controversies on the Judicial Control over Respect for the Economic, Social and Cultural Rights

Abstract: The specificities of the European Social Charter rights caused by the imbalance of national economic resources and needs based in the ESC rights, the international impact of these rights, as well as the broad discretion of national governments in forming national economic, social and cultural policies – all these render judicial control over the realization of said rights a complex and demanding judicial activity that requires a lot of expertise. Judicial control over nations’ respect for the ESC rights may contribute to real equalization of the two categories of human rights in respect to their effectiveness. Legislators and executives may take such human rights much more seriously, to the general benefit.

Keywords: the 1995 Additional Protocol to the European Social Charter, judicial control, second and third generation rights, justiciability of economic, cocial and cultural Rights


Laura-Maria Crăciunean, The UN Optional Protocol to the Covenant on Economic, Social and Cultural Rights: a New Era for Cultural Rights?

Abstract: The article discusses the issue of cultural rights, as they were classically conceived, and then points out the new challenges and evolutions in the field. At first, we show why cultural rights were considered to be the “Cinderella of human rights” and how, nowadays, a key preoccupation of the international bodies is that of strengthening both cultural rights as such, and their mechanism of implementation and protection. In doing so, the issues of cultural diversity and cultural identity intimately connected with human dignity come up as useful tools. This special relationship also brought into discussion the necessity, the existence and/or the desire for a separate new right, namely the right to cultural identity, the main debates on which we examine herein. Secondly, we argue that the adoption and the opening for signature by the United Nations, on 10 December 2008, of the Optional Protocol to the Covenant on Economic, Social and Cultural Rights constitutes a major step ahead. It continues the road paved in the last decade by the UNESCO Universal Declaration on Cultural Diversity (2001) and the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expression (2005). We point out the main provisions of this Protocol and conclude that this instrument, the others before it, and the General Comments of the Committee for Economic, Social and Cultural Rights (namely General Comment no. 20 and General Comment no. 21 of 2009) support this desirable evolution in the field of cultural rights.

Keywords: cultural rights, UN Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, cultural diversity, international law, cultural international law, UN International Covenant on Economic, Social and Cultural Rights, the right to participate in cultural life


Ramona Delia Popescu, Distortions Regarding the Exercise of the Right to Vote and the Election of the Representatives by the Electoral Body

Abstract: In order to vote, voters must meet both the conditions of substance and form, which by a variety of means may be distorted in order to over-represent or under-represent certain social groups. The current electoral law should be amended so as to provide either (a) a system wherein the candidate with the largest number of votes in his/her college receives the office (a one-round, winner-take-all system), or (b) a system wherein the candidate who obtains the majority of votes in the college receives the office and, where there is no majority, runoffs are held for the two candidates with the largest number of votes.

Keywords: distortion, right to vote, electoral system, mandate, representation, ethnic, national, religious minority


Gabriel Andreescu, Banning the Denial of Communist Crimes in Europe: from Ideology to Fundamental Rights

Abstract: The paper discusses the December 2010 initiative of six ex-communist countries (Bulgaria, the Czech Republic, Hungary, Latvia, Lithuania, and Romania) to request the European Commission to punish Europe-wide the “public condoning, denial and gross trivialization of totalitarian crimes” under the EU Council’s Framework Decision 2008/913/JAI of 28 November 2008 which prohibits the denial of Nazi crimes. The norms in said Decision are ideologically motivated and a reflection of the experience of Western Europe, rather than of the new EU members. The difficulties inherent in a symmetrical approach to the two types of totalitarianism, determined by Russia’s opposition and the “anti-seimitization” of requests to acknowledge the moral equivalence of said crimes, may be overcome by substituting for the ideological outlook one based on rights and freedoms. The article provides a review of the ECtHR jurisprudence on the matter from an ethics of memory perspective, and calls for an European policy in which moral condemnation goes side by side with high human rights and fundamental freedoms standards.

Keywords: Nazism, communism, negation, trivialization, Framework decision, anti-semitization, the Zdanoka case, the Kononov case