Abstracts Nr 3, 2022
Corneliu-Liviu Popescu, The legal uselessness of the Order of the International Court of Justice of 16.03.2022 Ukraine v. Russian Federation (Genocide Convention)
Abstract: The scope of the International Court of Justice’s order requesting Russia, as a provisional measure, to suspend military operations, is linked to the subject matter of the case, namely alleged genocide committed by Ukraine, which Russia claims to stop and prevent. Since Russia also uses, as its main argument, the exercise of the right to self-defence, a matter which is not part of the subject-matter of the case and over which the Court has no jurisdiction, Russia can continue the military operations, justifying them legally solely on the basis of the right to self-defence, and not also on the basis of the prevention and cessation of genocide, without thereby violating its obligation to comply with the Court’s Order. Certainly, the prohibition of aggression, of the use of force in international relations will continue to be violated, as stated by the General Assembly of the United Nations Organization.
Keywords: Genocide Convention. International Court of Justice. Provisional measures. Order.
Liviu Andreescu, The Changing Face of Religious Freedom in the United States: On Two Recent Decisions by the US Supreme Court
Abstract: The article looks at two recent decisions (Kennedy v. Bremerton School District and Carson v. Makin, both in the summer of 2022) by the Supreme Court of the United States in terms of their impact on the shape and prospects of religious freedom in that country – and beyond. It starts with a theoretical discussion of two broad, idealized viewpoints on religious freedom – as nondiscrimination and as special protection –, the latter of which is identified with the US perspective. It then goes on to provide a summary of the American tradition of religious freedom, as reflected in the political theory of the Founders and subsequently in the development of constitutional case law. This is followed by the article’s two main sections: a presentation of the two cases, and an analysis of their context and implications on the state of religious freedom in the United States. The final, conclusive section discusses the possible impact of the announced changes in US constitutional case law on prospects for religious freedom in Europe, with reference to cases at the European Court of Human Rights.
Keywords: religious freedom, nondiscrimination, special protection, Case of Kennedy v. Bremerton School District, Case of Carson v. Makin
Dezideriu Gergely, Access to justice, remedies and procedures available to individuals claiming the infrigement of Directive 2000/43/EC and 2000/78/EC: perspectives, approaches and interpretation in administrative and constitutional proceedings
Abstract: In this research we aimed to analyze to what extent the observations of the European Commission regarding the negative impact on the access to justice of groups affected or vulnerable to discrimination in Romania are valid, from the perspective of the implementation of the anti-discrimination Directives. Our hypothesis starts from the premise that the answer must be identified in a set of factors that are related to the legislator’s options in regulating the applicable jurisdictions in the area of non-discrimination, but also in relation to certain factual consequences produced in respect to these jurisdictions.
We considered that it is necessary, first of all, to analyze whether the legal provisions regarding the national jurisdictions made available to victims of discrimination in the context of the transposition of the Directives are accessible, precise and predictable. Second, whether the data on complaints and legal actions regarding discrimination fall within or outside the scope of the antidiscrimination Directives and the European Commission’s observations. Thirdly, if a relative distinction is needed between victims of discrimination who have turned to justice, being likely able to formulate legal actions or at least possessing information, knowledge and means for such a recourse and victims of discrimination belonging to vulnerable or marginalized groups, to which the European Commission refers in its evaluation report on the state of implementation of the EU Directives.
Keywords: access to justice, remedies, procedures available to individuals, Directive 2000/43/EC and 2000/78/EC