Transnational militant democracy

2018 ◽  
Vol 7 (2) ◽  
pp. 143-172 ◽  
Author(s):  
ULRICH WAGRANDL
Keyword(s):  
European Union ◽  
Human Rights ◽  
Liberal Democracy ◽  
Constitutional Reform ◽  
European Convention ◽  
The European Union ◽  
Council Of Europe ◽  
Liberal Democratic ◽  
Transnational Democracy ◽  
The Eu

Abstract:Ordinarily, militant democracy is about restricting the rights of those who threaten to overthrow the very democracy that guarantees these rights. Hence, militant democracy permits the defence of democracy by disarming its opponents. Turkey’s recent constitutional reform, which arguably is a move away from liberal democracy, forces militant democracy to face up to its transnational application. Can we use militant democracy’s tools to defend not our own, but another democracy? Maybe we can and even should. This article examines the two transnational manifestations of militant democracy. The first is ‘transnational democracy gone militant’, epitomised by the European Union (EU)’s power to enforce liberal democratic standards in its Member States. The second is ‘militant democracy gone transnational’. This manifestation permits treating people rallying in the EU to attack democracy abroad in the same manner in which we are permitted to treat opponents of ‘our own’ democracy. As long as we are dealing with members of the Council of Europe (CoE), the European Convention of Human Rights (ECHR) gives us the instruments we need. Generally, militant democracy is a militant liberal democracy, which is not neutral towards itself, but is also an opponent of every system that is antithetical to it.

scholarly journals Actual Issues of Forensic Activities in Ukraine and the Possibility of Implementing International Standards of the Industry in the Ukrainian Legislation

2021 ◽  
Vol 10 (2) ◽  
Author(s):  
Lidiya Kotlyarenko ◽  
◽  
Nataliia Pavlovska ◽  
Eugenia Svoboda ◽  
Anatolii Symchuk ◽  
...  
Keyword(s):  
European Union ◽  
Human Rights ◽  
Legal Regulation ◽  
International Standards ◽  
European Convention ◽  
European Law ◽  
The European Union ◽  
Council Of Europe ◽  
Legal Standard ◽  
The Eu

International standards exist in any field of legal regulation however, they are mostly identified with standards that regulate the technical sphere, since they are the most common ones. Nonetheless, today it is hard to imagine any area of public life withno generally recognized international standards. European legal standards are formed within the framework of the two most regional international associations –the Council of Europe and the European Union. The Council of Europe sets, first of all, standards in the humanitarian sphere: human rights, environment protection, and constitutional law, which is determined by the goals and purpose of its functioning. The European Union (hereinafter referred to as the EU) using directives, regulations, and other legal acts sets standards for most areas of the EU population's life. It should be noted it is during the development of 'standardization' in the European law that specific development of public relations in the EU takes place. Defining the EU legal standardas a separate category of norms of the European law, it is noteworthy that this term is used in a broad sense as a 'legal standard' and incorporates such elements as the general principles of the EU law and the 'common values' of the EU –they relate to people, environment, economic issues, and so on. The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 is a classic example of their implementation. In a narrow sense, this term has a specific meaning and does not coincidewith the concept of 'legal standard', e.g. these are standards in the technical field that are adopted by the European Committee for Standardization, that is, in its content, it is a technical publication that is used as a norm, rule, guide or definition.Therefore, they relate to products, services, or systems and are the basis for convergence and interaction within the growing market of various business sectors. Today, in international law de facto there is a system of standards that regulate various aspects of international relations.

Human rights and the rule of law in judicial cooperation in criminal matters under the EU–UK Trade and Cooperation Agreement

2021 ◽  
pp. 203228442199593
Author(s):  
Wolfgang Schomburg ◽  
Anna Oehmichen ◽  
Katrin Kayß
Keyword(s):  
European Union ◽  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
Cooperation Agreement ◽  
Judicial Cooperation ◽  
Human Rights Protection ◽  
Criminal Matters ◽  
The Eu

As human rights have increasingly gained importance at the European Union level, this article examines the remaining scope of human rights protection under the EU–UK Trade and Cooperation Agreement. While some international human rights instruments remain applicable, the Charter of Fundamental Rights of the European Union did not become part of the Trade and Cooperation Agreement (TCA). The consequences, especially the inapplicability of the internationalised ne bis in idem principle, are analysed. Furthermore, the conditionality of the TCA in general as well as the specific conditionality for judicial cooperation in criminal matters are discussed. In this context, the risk that cooperation may cease at any moment if any Member State or the UK leave the European Convention of Human Rights is highlighted. Lastly, the authors raise the problem of the lack of judicial review, as the Court of Justice of the European Union is no longer competent.

7. Europe

2017 ◽  
Author(s):  
Rhona K. M. Smith
Keyword(s):  
European Union ◽  
Human Rights ◽  
European Convention ◽  
The European Union ◽  
Council Of Europe ◽  
Regional Organizations ◽  
The World ◽  
Relevant Work

This chapter examines the regional organizations with jurisdiction over human rights in Europe, focusing on the Council of Europe, and describes relevant work of the European Union and the Organization for Security and Cooperation in Europe. It highlights the success of the Council of Europe in developing a system which ensures the protection of basic human rights through a judicial mechanism, and concludes that the European Convention on Human Rights has matured into the most sophisticated and effective human rights treaty in the world.

Autonomy and Effectiveness as Common Concerns: A Path to ECHR Accession After Opinion 2/13

2015 ◽  
Vol 16 (1) ◽  
pp. 147-167 ◽  
Author(s):  
Christoph Krenn
Keyword(s):  
European Union ◽  
Human Rights ◽  
European Convention ◽  
The European Union ◽  
Court Of Justice ◽  
Constitutional System ◽  
The Eu

Opinion 2/13is a sweeping blow. After four years of negotiations, it took the Court of Justice of the European Union (CJEU or the Court) only a few paragraphs to pick to pieces the draft accession agreement on the EU's accession to the European Convention on Human Rights (ECHR), finding a conflict with the EU Treaties on ten grounds. The Court's message is clear: Accession, under the terms of the draft agreement, would risk undermining the very essence of the EU's constitutional system.

scholarly journals Human Rights in the Criminal Code? A Critique of the Curious Implementation of the EU and Council of Europe Instruments on Combating and Preventing Terrorism in Belgian Criminal Legislation

2014 ◽  
Vol 22 (1) ◽  
pp. 33-57
Author(s):  
Steven Dewulf
Keyword(s):  
European Union ◽  
Human Rights ◽  
Criminal Code ◽  
The European Union ◽  
Council Of Europe ◽  
Criminal Legislation ◽  
International Instruments ◽  
The Eu

Different international instruments on the prevention and suppression of terrorism from the European Union and the Council of Europe task States with adopting new terrorist offences. At the same time, several provisions in these international instruments remind States of their obligation to fully adhere to their human rights obligations when implementing, interpreting and applying these new offences. Following these provisions, Belgium decided to insert a rather curious human rights clause in its Criminal Code. This article will critically examine this peculiar clause and the decision(s) made by the Belgian legislator. The key question is whether or not States should indeed also implement such human rights provisions in their criminal legislation, and if so, in what way they should best proceed. It will be argued that inserting such a specific human rights clause for one particular offence in a domestic criminal code might not only be superfluous, but could even have unforeseen, unwanted and hazardous effects.

scholarly journals The day after: Protecting the human rights affected by environmental challenges after the EU accession to the European Convention on Human Rights

2018 ◽  
Vol 20 (4) ◽  
pp. 213-224 ◽  
Author(s):  
Irene Antonopoulos
Keyword(s):  
European Union ◽  
Human Rights ◽  
Environmental Protection ◽  
European Convention ◽  
The European Union ◽  
Environmental Rights ◽  
Environmental Challenges ◽  
Court Of Justice ◽  
Environmental Protection Policies ◽  
The Eu

This article explores whether a potential accession of the European Union to the European Convention on Human Rights, offers a more effective method of protection for ‘environmental human rights’: those rights whose enjoyment is allegedly affected by environmental challenges. The European Court of Human Rights has decided on claims of alleged violations of human rights by both environmental degradation and the enforcement of environmental protection policies implementing EU environmental law. On the other hand, the capacity of the Court of Justice of the European Union to decide on human rights issues has been repeatedly challenged, while the inability of the Court to protect procedural (environmental) rights when it came to NGOs, allows for challenging the capacity of the Court of Justice of the European Union to protect substantive (environmental) rights as well. Will an accession mean that applicants will be able to bring claims for alleged violations, caused by the enforcement of EU generated environmental protection policies, against the EU Institutions rather than the enforcing State? This article follows the relevant developments towards the accession, and consequently seeks to determine how the day after the accession will look for the protection of human rights affected by environmental challenges.

scholarly journals The Reinterpretation of TFEU Article 344 in Opinion 2/13 and Its Potential Consequences

2015 ◽  
Vol 16 (1) ◽  
pp. 169-178 ◽  
Author(s):  
Stian Øby Johansen
Keyword(s):  
European Union ◽  
Human Rights ◽  
European Convention ◽  
The European Union ◽  
Court Of Justice ◽  
The Eu

On 18 December 2014 the Court of Justice of the European Union (CJEU) delivered Opinion 2/13 and stunned the legal world by declaring that the Draft Agreement on the Accession of the EU to the European Convention on Human Rights (the Accession Agreement) was incompatible with the constituent treaties of the Union. Although some experts, admittedly, had been skeptical about certain aspects of Draft Accession Agreement, no one seems to have expected an opinion so critical and uncompromising. The opinion has consequently received widespread disapproval in the EU legal blogosphere.

Some decisions of the European Court of Human Rights and the Court of the European Union con cerning the right of asylum

10.12737/5251 ◽  
2014 ◽  
Vol 2 (1) ◽  
pp. 68-74
Author(s):  
Габриэлла Белова ◽  
Gabriela Belova ◽  
Мария Хаджипетрова-Лачова ◽  
Maria Hadzhipetrova-Lachova
Keyword(s):  
European Union ◽  
Human Rights ◽  
European Convention ◽  
The European Union ◽  
Protective Mechanisms ◽  
Eu Member States ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Right ◽  
The Eu

The authors analyze certain cases considered in recent years by the European Court of Human Rights and the Court of European Union in Luxembourg and associated with providing of asylum to the third country nationals. In individual EU member states there are huge differences in the procedures and protective mechanisms for asylum seekers in their access to work, as well as in the use of mechanism of forced detention. Due to accession of the EU to the European Convention for the Protection of Human Rights and Fundamental Freedoms, the EU should comply the standards set by the Council of Europe. The authors analyze the new approach of the Strasbourg Court in decision MSS v. Belgium and Greece unlike other "Dublin" cases. They also consider certain new judgements of the Court of European Union in Luxembourg, some of which were accepted in order of urgent prejudicial production.

scholarly journals After the Dust Has Settled: How to Construct the New Accession Agreement After Opinion 2/13 of the CJEU

2017 ◽  
Vol 18 (4) ◽  
pp. 919-968 ◽  
Author(s):  
Przemyslaw Tacik
Keyword(s):  
European Union ◽  
Human Rights ◽  
European Convention ◽  
The European Union ◽  
Court Of Justice ◽  
Legal Thinking ◽  
Pros And Cons ◽  
Scholarly Attention ◽  
The Eu

Since December 18, 2014, when the Court of Justice of the European Union (CJEU) issued its notorious Opinion 2/13, the conclusions of the Court have been a subject of numerous analyzes and debates—often sharp in their criticism. Now that the content of the Opinion seems fairly elucidated, the scholarly attention should turn towards searching for practical solutions to the CJEU's demands. This Article aims to provide a list of possible solutions to each requirement of the Opinion and assessing their pros and cons. Instead of concentrating on the obstacles posed by the Court, it is incumbent to address the problems with innovative legal thinking and save the project of the EU acceding to the European Convention on Human Rights (ECHR).

scholarly journals Mechanizm współpozwania w świetle przystąpienia Unii Europejskiej do Konwencji o ochronie praw człowieka i podstawowych wolności

2018 ◽  
Vol 24 ◽  
pp. 63-75
Author(s):  
Anna Moskal
Keyword(s):  
European Union ◽  
Human Rights ◽  
Member State ◽  
European Convention ◽  
The European Union ◽  
Joint Liability ◽  
Court Of Justice ◽  
European Court ◽  
European System ◽  
The Eu

The co-respondent mechanism in the view of accession of the European Union to the European Convention of Human RightsFor the past seventy years there have been discussions and activities on the accession of the European Union to the European Convention on Human Rights. The ratio of the Union’s accession to the Convention is a need to harmonize the European system of protection of individual rights. There are numerous problems and obstacles to achieve this goal created by the specific, supra-national character of the Union sui generis. It requires the introduction of unique mechanisms and procedures that would allow an international organization such as the EU to become a party to the Convention. One such procedure is provided in art. 3 of the draft agreement, the co-respondent mechanism of the European Union and the Member State in proceedings under the European Court of Human Rights. The purpose of the article is to present the allegations of the Court of Justice, assess their validity and indicate possible future solutions regarding the co-respondent mechanism. After analyzing the European Commission’s request for an opinion on the compliance of the draft agreement with community law, the CJEU considered the draft as incompatible with EU law and listed ten issues that prevented the Union from joining the Convention in the proposed form. Among them, as many as three points refer to the corresponding mechanism and concern in particular the decision on the validity of the conclusions of the Union or a Member State by the Strasbourg Court, accepting joint liability and deciding on the division of responsibility between the Union and the Member State. In the article dogmatic method was used in order to analyze three aforementioned points. Due to the provision of art. 218 par. 11 p. 2 TFEU, the Commission is bound by the opinion of the Court of Justice, and that the presented draft agreement cannot constitute an international agreement allowing for the accession of the Union to the Convention in the proposed form.

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