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7719 results in Intersentia

Page 286 of 386

  • Chapter 1 - Introduction: Purpose and Structure, Categorisation of States and Hypotheses

  • from PART I - INTRODUCTORY
    • By Patricia Popelier, Professor of Constitutional Law at the University of Antwerp and vice-dean for research at the law faculty, Sarah Lambrecht, Law Clerk at the Belgian Constitutional Court and PhD Candidate at the Research Group Government and Law, Faculty of Law, University of Antwerp, Koen Lemmens, PhD from the European University Institute (Fiesole, Italy) and is Associate Professor of Public Law at KU Leuven (Belgium)
  • Edited by Patricia Popelier, Sarah Lambrecht, Koen Lemmens
  • Book:
    Criticism of the European Court of Human Rights
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    24 June 2016, pp 3-22

  • Summary

    PURPOSE OF THE EDITED VOLUME

    For some time now, the European Court of Human Rights is under substantial pressure. From a case overload crisis it stumbled into a legitimacy crisis with regard to certain countries. The most severe criticism has been voiced in the UK, where ‘charges against the Court … over the past two years have been unprecedented’. Also voices outside the UK, however, have subscribed to these views. This should be taken seriously, since scholars warn that institutions with eroding legitimacy risk demise or reform. This is exactly what the Strasbourg Court was facing within the reform talks leading up to the Brighton Conference under the UK Chairmanship of the Committee of Ministers of the Council of Europe. Ultimately, however, the Brighton Declaration advanced for the most part a technical reform. It is therefore unlikely that the Brighton Declaration and the ensuing Protocol No 15 will be able to tone down opponents of an activist European Court. The Court will thus very carefully need to maintain the difficult balance between human rights protection and respect for national sovereignty.

    The goal of this volume is to explore how widespread this critical attitude of the European Court of Human Rights really is. Secondly, the volume assesses to what extent such criticism is being translated in strategies at the political level or at the judicial level and brings about concrete changes in the dynamics between national and European fundamental rights protection. These questions have so far remained largely unexplored, especially cross-nationally. Therefore, the focus is not solely put on countries that are known to have highly critical voices and that, particularly in the case of the UK, have been heavily documented. Rather, we aim to evaluate whether a change in dynamics is a pan-European reality or merely limited to a few countries.

    For this reason, our coverage is wide, compromising fifteen Contracting Parties and the EU, as a future Contracting Party. Every in-depth report is based on the same structured questionnaire, which can be found in the annex. The authors also followed the same chapter template which coincides with the questionnaire, as to encourage easy comparison for the reader.

  • Chapter 4 - Austria: Endorsing the Convention System, Endorsing the Constitution

  • from PART II - SPARSE CRITICISM
    • By Anna Gamper, Full Professor at the Department of Public Law, State and Administrative Theory of the University of Innsbruck
  • Edited by Patricia Popelier, Sarah Lambrecht, Koen Lemmens
  • Book:
    Criticism of the European Court of Human Rights
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    24 June 2016, pp 75-102

  • Summary

    CRITICISM OF THE EUROPEAN COURT OF HUMAN RIGHTS

    THE CONVENTION IN AUSTRIAN CONSTITUTIONAL DESIGN

    Among the 47 Member States of the Council of Europe, Austria has given a unique status to the ECHR as well as most of its Additional Protocols, since it is the only member state that incorporated the Convention into its federal constitutional law. In Austria, the Convention thus has been an established component of the “supreme law of the land” for a long time. At the beginning, this had not been uncontroversial, though. When Austria ratified the ECHR in 1958, Parliament gave its approval without particularly mentioning that the ECHR would receive the status of a federal constitutional amendment. Since the Constitutional Court did not at first recognise the federal constitutional status of the ECHR, a federal constitutional amendment was passed in 1964 which retroactively confirmed the federal constitutional status of the ECHR (as well as Protocol No 1) and specified Article 50 Bundes-Verfassungsgesetz (B-VG) to the effect that international treaties could henceforth be transformed as a federal constitutional amendment; in this case the respective treaty required the same qualified parliamentary approval as a federal constitutional amendment and the approval needed to state explicitly that the Federal Constitution was amended.

    Austria has since ratified additional Protocols Nos 1–14 (except No 12) and transformed these treaties as parts of Austrian federal constitutional law. The previous instruments of ratification included four reservations and one declaration, part of which have meanwhile been declared invalid. Protocols No 15 and 16 have not yet been ratified, even though Protocol No 15 was signed by the Austrian Federal President on 25 June 2013. However, future ratifications will be different from those of the other Protocols, since, due to a federal constitutional amendment in 2008, Article 50 B-VG does no longer allow the ratification of international treaties that amend the Federal Constitution, except for those treaties that concern the treaties underlying the EU. However, it is not excluded that future Protocols to the ECHR could be transformed into federal constitutional law, if this were authorised by a specific federal constitutional amendment, as a lex specialis to Article 50 B-VG.

  • Chapter 1 - Introduction

  • Guang Shen
  • Book:
    Regulation of Cross-Border Establishment in China and the EU
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    24 June 2016, pp 1-6

  • Summary

    Societal Problems

    It has been pointed out in the literature that enterprises in China usually encounter barriers when they invest across provinces. For example, an empirical study by the Development Research Center of the State Council (2004) demonstrated that businesses in China may be confronted with some barriers in the process of interprovincial investment, including more stringent capital requirements than those made by national law. According to another (more recent) study, protectionist measures are taken by local authorities, which lead to restrictions on the interprovincial establishment of companies and market segmentation.

    Despite the above research, there appears to be limited research on how, in practice, rules on the inter-provincial establishment of companies are applied. That being said, the impact of regulation on the inter-provincial establishment of companies should not be underestimated. In 2013, the Communist Party of China announced that it would ‘tidy up and annul all sorts of regulations and methods that impede the national unified market and fair competition.’ Usually, the regulation of inter-provincial establishment on the one hand restricts expansion across provincial borders, while on the other hand it can deter the entry of unqualified companies into local markets.

    In contrast to the creation of entry barriers, as discussed above, local authorities sometimes compete with each other to attract investment by non-local businesses. There may even be destructive competition between provinces or regions. For example, Wei and Bi demonstrate that Chinese firms in certain industries tend to relocate their factories from Eastern China to regions with weaker environmental regulation in Central China and Western China. Based on this tendency, it is reasonable to presume that local authorities in Western China and Central China have powerful incentives to engage in a race to the bottom in environmental standards on establishment. The issue of the race to the bottom will be discussed in detail in Chapter 6. Whether or not local officials create entry barriers to non-local firms depends on the specific context, e.g. whether the region concerned is developed or backward.

    Ensuring easier inter-provincial establishment can benefit China. Crossprovincial investment by firms has been recognized as one form of capital mobility across provinces in China.

  • Chapter 6 - Czech Republic: Strasbourg Case Law Undisputed

  • from PART II - SPARSE CRITICISM
  • Edited by Patricia Popelier, Sarah Lambrecht, Koen Lemmens
  • Book:
    Criticism of the European Court of Human Rights
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    24 June 2016, pp 131-154

  • Summary

    CRITICISM OF THE EUROPEAN COURT OF HUMAN RIGHTS

    Any narrative addressing the acceptance of the European Court by Czech society would be incomplete should it start with the present. Attitudes to the Convention started to take shape in Czech scholarly circles in the 1950s, almost entirely informed by the socialist doctrine of international law. This placed heavy emphasis on state sovereignty and non-intervention. It was considered that the notion of the individual as a separate subject of international law would give “imperialist” countries a means to circumvent the sovereign power of weaker countries, legalising interference in their internal affairs. By this logic, recognition of the international legal personality of an international organisation was considered a step towards the hegemony of the most powerful imperialist states. This approach towards international human rights obligations and the supervisory power of international organisations explains the Czechoslovak government's reluctance to submit itself to international human rights regimes. In this respect, UN human rights treaties differ from the Convention in that they do not automatically allow for independent review of State Party compliance in individual matters; separate government consent is needed. Guided by this reasoning, Czechoslovakia did ratify major UN human rights treaties while the government refused to recognise the competence of UN treaty bodies to receive and consider communications from individuals. At the same time, no Soviet bloc country ratified the Convention, as its substantive human rights obligations were interconnected with submission to the control mechanism of the Commission and the Court.

    During the short period of political liberalisation in Czechoslovakia in the late 1960s, some scholars became more receptive to the notion of individuals as subjects of international law; the Convention was even recognised as the most significant human rights treaty. Yet this profound ideological shift proved as short-lived as the “Prague Spring”.

    The situation changed dramatically after the fall of the Berlin Wall. The Velvet Revolution was a true human rights revolution. In 1990, parliamentary acts on freedom of assembly, on association, on petitions and on private property were immediately adopted. In a speech delivered before the Parliamentary Assembly of the Council of Europe in May 1990, President Václav Havel praised the openness of the Council of Europe, together with its criteria for the admission of new states, and voiced his desire for a unified Europe.

  • Chapter 7 - Regulation Of The Inter-Provincial Establishment Of Companies In China: Learning From Europe?

  • from PART III - ECONOMIC EVALUATION
  • Guang Shen
  • Book:
    Regulation of Cross-Border Establishment in China and the EU
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    24 June 2016, pp 245-254

  • Summary

    Introduction

    Chapter 6 showed that local governments in China sometimes compete with each other to attract investment by providing more lenient rules on business establishment. In some cases this competition leads to a race to the bottom, but in other cases it results in learning effects. Of course, competition among local authorities also occurs in other federal jurisdictions, such as the EU. Considering the development of the internal market presented in Chapter 3, this chapter compares China with the EU, in order to see to what extent the EU can be a source of inspiration for China.

    The EU and China may be incomparable, since the differences between these jurisdictions appear very distinct. One major difference relates to the institutional features of the European and Chinese legal regimes, which will be elaborated on in this chapter. Moreover, China has its own problems to establish a law-based order: ‘a low level of legal consciousness; the lack of a robust civil society; the enduring influence of paternalistic traditions and a culture of deference to government authority; the fallout from the unfinished transition from a centrally planned economy to a market economy;’ and so on. Therefore, we should be aware of the limitations of comparing China with the EU, (due to the unique situation in China).

    This chapter will focus on the particular institutional features of the European and Chinese systems, in order to find out whether China can learn something from the EU experience. Specifically, this chapter will point out how the differences in institutions in China and the EU influence the formation of barriers to freedom of establishment in these jurisdictions. Moreover, close attention will be paid to how these differences impact on choosing solutions to these obstacles.

    Comparative law and economics will be employed in the analysis. Combining the analytic tools of these two disciplines, this methodology can serve the purpose to better see the reasons for existing provisions and institutions and of their changes and development. This chapter starts by presenting how this approach deals with the comparison of legal systems.

    Comparative Law and Economics: The Importance of Considering Institutional Differences in Comparative Study

    Comparative law and economics adopts a comparative approach and takes into account local institutional environments. The subject of comparative law and economics is a comparative analysis of various legal rules embedded in different institutional frameworks.

  • Chapter 4 - An Economic Analysis Of The Regulation Of The Establishment Of Companies

  • from PART II - THEORETICAL FRAMEWORK
  • Guang Shen
  • Book:
    Regulation of Cross-Border Establishment in China and the EU
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    24 June 2016, pp 163-196

  • Summary

    Introduction

    The aim of Chapter 4 is to explain government intervention in the establishment process in a single-level jurisdiction in the light of the economic theory of regulation. Chapter 4 discusses whether government intervention in the formation of companies is necessary at all. Moreover, the question will be addressed whether a certain type of regulation is an appropriate remedy to the problems that it aims to tackle.

    This chapter looks at two particular ways of regulating establishment: licensing and minimum capital requirements. Licensing as a legal control on entry is widely accepted. Nevertheless, whether licensing is a proportional instrument to tackle market failure also needs to be considered.

    Another way of regulating market entry can be to introduce minimum capital requirements. Minimum capital requirements can increase the costs of capital; as a result, business entry may decrease.

    The rest of this chapter is structured as follows. Section 2 presents two different approaches concerning regulation as discussed in the law and economics literature: the public interest approach and the private interest approach. It also addresses the main kinds of regulatory controls in the process of business establishment. Section 3 elaborates on whether regulatory intervention in the form of registration, certification and licensing is warranted in the establishment. From a public interest perspective, section 4 looks at the pros and cons of these instruments to tackle market failure in the set-up process, respectively. Having discussed public interest arguments for licensing in the set-up process, section 5 takes into account private interest considerations for employing licensing in the establishment process. Section 6 turns the focus of this chapter to minimum capital requirements. The aim of this section is to see whether minimum capital requirements can be justified on public interest grounds or rather explained on private interest grounds. Section 7 provides conclusions.

    Some examples relating to China are treated in chapter 4, but it is not until Part III that this thesis will look into the regulation of the cross-border establishment of companies in China in detail.

    Theory of Regulation

    The Public Interest Approach

    A public interest approach to regulation starts from the assumption that regulation is always aimed at increasing social welfare.

  • Chapter XVII - Justifying Acts of Denialism: The Case of Prisoner Disenfranchisement in the UK

  • from PART IV - NEW PENOLOGY
  • Edited by Roland Moerland, Hans Nelen, Jan C. M. Willems
  • Book:
    Denialism and Human Rights
    Published by:
    Intersentia
    Published online:
    19 September 2018
    Print publication:
    24 June 2016, pp 337-364

  • Summary

    INTRODUCTION

    This paper will explore the case of prisoner disenfranchisement in the United Kingdom as a concrete example of political denialism and human rights. It will explore the basis of denialism and human rights, from two approaches, asking both how and why denialism is perpetrated and justified in the UK. Initially seeking to challenge how the blanket ban on prisoner voting is justified at a domestic level. The paper will then identify why political denialism is contentious within the concrete example that prisoner disenfranchisement provides, determining the conceptual and legal basis and subsequent political support for the prisoner voting ban.

    In examining how political actors, such as the UK Government, justify continued denial of rights at the expense of their obligations under the ECHR, this paper highlights the prisoner voting rights case as concrete example of political or functional denialism in practice. It therefore affords an excellent example within which to address why denialism is committed and consequently how a state can justify continued human rights violations. In looking beyond the act of denialism and addressing the justifications themselves, this paper contributes to deepening understanding of situations where the state power is the main perpetrator of denialism.

    DENIALISM AND HUMAN RIGHTS: POLITICAL DENIALISM

    Scholars working within this field have largely drawn upon the works of Stanley Cohen in identifying the forms of denial. At the conference associated with this collection of papers, entitled ‘Denialism and Human Rights’, a number of forms of denialism where thus identified. The most notable of these was given by Prof. Eric Heinze who outlined the forms which denial has been recognised to take within the field of human rights. These were identified as factual, normative, justifiable and political denialism.

    The first of these, factual denial, occurs where a series of events or conduct is questioned as to ever having existed. A key example of such would be Holocaust or more generally genocide denial. Secondly, denialism within human rights can be normative in form, where it is disputed whether a norm can be considered as a human right.

  • Annex 1 - Questionnaire

  • from APPENDIX
  • Edited by Patricia Popelier, Sarah Lambrecht, Koen Lemmens
  • Book:
    Criticism of the European Court of Human Rights
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    24 June 2016, pp 557-562

  • Summary

    CRITICISM OF THE EUROPEAN COURT OF HUMAN RIGHTS

  • To what extent is there criticism of the European Court of Human Rights regarding its interpretation of the Convention, its functioning and its legitimacy (a) in the media, (b) in academia, (c) in the political world and (d) in the judiciary?

  • Is the lack or presence of criticism linked to the status of the Convention and the ECtHR judgments in the national legal system? Why?

  • Has there been a recent surge in criticism? If so, what sparked this?

  • Is this criticism widespread and/or permanently present or only sporadic and/or temporary? Why?

  • Is this criticism aimed at specific judgments or is it more systemic, namely aimed at the general mechanisms of interpretation, general functioning or overall legitimacy of the European Court of Human Rights?

  • If there is a significant difference in the amount and nature of criticism of the European Court of Human Rights in the different fields (media, academia, politics and judiciary), does this cause any specific tensions at the national level? Has this had any effects on their interrelationship?

    • COUNTER-DYNAMICS AT THE POLITICAL LEVEL

    POLITICS AND THE CONVENTION SYSTEM

  • To what extent is the Convention system part of the political/electoral debate?

  • Do parties have distinct views on the (reform of the) European Court of Human Rights and the European Convention on Human Rights? If so, what are they? Are they one of the core points of the political party's manifesto/identity?

  • Have the political parties’ positions evolved? For instance, have they become increasingly in favour for reforming the European Court of Human Rights or become increasingly euro-sceptic or euro-friendly? If so, why?

    • POLITICAL STRATEGIES AT THE EUROPEAN LEVEL: REFORM OF THE CONVENTION SYSTEM

  • What was the position of the national government in the build-up to the Brighton Conference in April 2012 concerning the reforms needed to the Convention system? Was this position beforehand and/or afterwards discussed in the national parliament? If so, to what extent and did this reveal differences in opinion between the political parties and majority v. opposition?

  • To what extent did the government and parliament agree with the UK Draft of the Brighton Declaration?

  • Chapter 14 - Norway: New Constitutionalism, New Counter-Dynamics?

  • from PART III - MODERATE CRITICISM
    • By Michael Reiertsen, Cand. Jur. (University of Tromsø), LL.M Europa-Institut Saarbrücken and PhD Research Fellow at the Department of Public and International Law, University of Oslo
  • Edited by Patricia Popelier, Sarah Lambrecht, Koen Lemmens
  • Book:
    Criticism of the European Court of Human Rights
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    24 June 2016, pp 361-384

  • Summary

    CRITICISM OF THE EUROPEAN COURT OF HUMAN RIGHTS

    Norwegian criticism on the European Court of Human Rights (the ECtHR or the Court) is strongly connected to the impact of the European Convention on Human Rights (the ECHR or the Convention) in Norwegian law. In particular since around 2000, the impact of the ECHR has grown because of the increased formal status of the ECHR in Norwegian law and the expanding case law and dynamic interpretation of the Court (both in cases against Norway and in cases against other Member States). The increased impact has led to increased criticism of both the ECtHR and the Convention system.

    Norway was among the first countries to sign and ratify the ECHR. But even though Norway is considered a fierce supporter of human rights, it was not a fierce supporter of the ECtHR during the drafting of the Convention. Norway argued against the establishment of the ECtHR. And when it became clear that the ECtHR was to be established, Norway was among the countries who argued for granting the ECtHR only weak remedial powers – including no power to invalidate domestic legislation. Norway accepted the jurisdiction of the ECtHR in 1964, but only after considerable debate at the national level.

    Norway has a dualistic system. International conventions need an act of implementation to become part of Norwegian law. Such an act can take three forms: Active transformation (the recital method), incorporation (the reference method) and passive transformation (a simple finding of conformity between existing Norwegian law and the international obligations). When the Convention was ratified, a passive transformation was deemed sufficient. Norway perceived itself as a well-functioning and democratic state that would not violate human rights and the Convention was mainly thought to protect against the (re-)establishment of authoritarian and suppressive regimes. Further, the first case in which Norway was found to violate the Convention by the ECtHR only came in 1990. And until then Norwegian courts had only sporadically dealt with the Convention, and mostly as an argument in support of a solution achieved through other sources of law.

  • Chapter X - The Holocaust and its Denial: A Paradigm in our Historical Culture

  • from PART II - GENOCIDE
    • By Georgi Verbeeck, Professor of German History at the University of Leuven and Associate Professor of Modern History
  • Edited by Roland Moerland, Hans Nelen, Jan C. M. Willems
  • Book:
    Denialism and Human Rights
    Published by:
    Intersentia
    Published online:
    19 September 2018
    Print publication:
    24 June 2016, pp 199-214

  • Summary

    The Holocaust not only represented a tragic historical episode in itself, but it rapidly started to serve as a central point of reference and comparison by which to judge the essence of other genocidal practices – committed either before or after the Jewish catastrophe. It delivered a standard measure for our understanding and awareness of other major crimes and wrongdoings, either in the past or in the present day. ‘Holocaust awareness’ therefore has become one of the cultural pillars upon which an official postwar European identity was constructed. What is true for its acknowledgement necessarily also applies to its denial. They are equally indicative for our moral standing. The Holocaust and the way we pronounce upon it serve as a template for other acts of mass violence, and so does Holocaust denial. This chapter will look into how a dominant discourse of the Holocaust affects our notion of other genocides. And why is it that Holocaust denialism touches such a raw nerve in our society? The final question will be to what extent Holocaust denial provides a draft of a wider phenomenon of denialism comprising other genocides.

    HISTORY AND MEMORY

    In his internationally acclaimed book Postwar. A History of Europe since 1945 Tony Judt once convincingly pointed at the importance of the Holocaust and its commemoration for present-day European citizens. He called to mind German poet Heinrich Heine (1797–1856), who at the start of 19th century concluded that conversion to Christianity provided Jews the only opportunity to gain access to the community of European nations. However, this specific role of baptism in Heine's day and age has been taken over by extermination after 1945. The extermination, or rather its universal acknowledgment, has become the admission ticket to the community of civilised European nations. Those who call into doubt or who do not fully acknowledge the genocide of the Jews in the Third Reich condemn themselves to the role of international pariah. Denying or belittling the Holocaust is equal to placing oneself beyond the pale of civilised public discourse. ‘Auschwitz’, in other words, has become the benchmark for post-war European identity.

Page 286 of 386