CRITICISM OF THE EUROPEAN COURT OF HUMAN RIGHTS

In Germany, the system of the European Convention on Human Rights and the European Court of Human Rights are not subject of widespread or fundamental criticism. The Convention system is not generally debated on. Mass media reports rather rarely on the Convention system or the European Court of Human Rights as such. The reform process is not a matter of general interest, and information about the reform process can only be found sporadically in the mass media.

Mass media reported on a couple of specific judgments of the European Court of Human Rights which touched sensitive questions such as religious freedom, the rights of homosexuals regarding marriage or the adoption of children or the decision to end life-sustaining measures. Sometimes, specific judgments concerning Germany lead to criticism, mainly by academia. This can be focused on the outcome of individual cases but also on the reasoning of the judgment itself or its consequences for the national legal order or influence on the national jurisprudence. However, the criticism regarding individual cases does not lead to hostile attitude against the European Court of Human Rights or the Convention system.

COUNTER-DYNAMICS AT THE POLITICAL LEVEL

POLITICS AND THE CONVENTION SYSTEM

In the following, an analysis of the election programmes of the main political parties in the political scene in Germany is provided in order to give an impression of the political positions held vis-a-vis the protection of fundamental rights and freedoms by the Convention system. As it is the most recent source, the analysis is founded on the election programmes presented before the nationwide parliamentary election in September 2013. After the election in 2013 the political parties “Christlich Demokratische Union Deutschland”/”Christlich Soziale Union Deutschland” (CDU/CSU) entered into a coalition with the “Sozialdemokratische Partei Deutschland” (SPD) forming a so called “Große Koalition” (large coalition). By this, the former coalition consisting of the CDU/ CSU and the “Freie Demokratische Partei” (FDP) had been replaced.

The government programme of the party CDU/CSU mentioned the European Convention on Human Rights and the European Court of Human Rights explicitly, but only at one occasion and very shortly. It proclaims that any attempt to weaken the Court has to be prevented.

INTRODUCTION

Every two years, in the world of sport athletes aim at achieving the most prestigious reward in their careers, an Olympic gold medal. However, the Olympic (winter and summer) Games are not only associated with exciting matches and outstanding sports performances, but some of them have a rather dark side as well. History has shown that if the political or socio-economic situation in a hosting country is entwined with human rights violations, this may cast a shadow on the glamorous side of the event. The most striking example of such an entwinement was the abuse by the Nazi regime of the Olympic Games of 1936 in Berlin. More recently, the Summer Games in 2008 in Beijing raised huge concerns with regard to the limitation of free speech and the infringement of self-determination of the people of Tibet. The last Winter Games of 2014 in Sochi triggered a debate on discrimination on grounds of sexual orientation. Moreover, due to the commercialisation of sport in general, and the Olympics in particular, the Games are also increasingly linked with serious forms of crime. Like the Fédération Internationale de Football Association (FIFA) in professional football, members of the board of the International Olympic Committee (IOC) have been accused of participating in serious fraud and corruption schemes, in particular concerning host venues for important competitions, allocation of rights, nomination for positions and commissioning construction works for sports arenas and other venues. These forms of corruption not only have a negative impact on the integrity of the Olympic movement, but may have detrimental effects on the socio-economic conditions under which the Games are organised as well. Many horrifying stories can be presented on casualties on construction sites as a result of poor working conditions, and forced evictions of inhabitants who have to leave their neighborhoods because of the construction of new stadiums or other Olympic facilities.

The protection of human rights is universally agreed upon and ratified in various Conventions. Recently, the Human Rights Council Advisory Committee published a report on the possibilities of using sport and the Olympic ideal to promote human rights for all and to strengthen universal respect for them.

In the late 1970s while teaching philosophy of law in Edinburgh I was invited to dinner where another guest was an upcoming MP. Making (heavy) conversation I asked how we could justify not helping desperate people in the world who were so much less fortunate than we were. Was it just a question of geography? If they were actually at the door starving would we not give up our superfluous goods so as to ensure their basic survival – and how could geography make a difference to our obligations? My fellow guest did not see that we had any such obligations, and my questions were no doubt put clumsily. And yet, now with the arrival of so many often desperate people from poorer countries trying to cross borders despite heavy-handed efforts to stop them, even the argument from geography falls away. Some of the same unease arises when we worry about our obligations to those who live elsewhere but on whose work in intolerable conditions we rely to supply our food, our raw materials, our clothes and even the manufacture of the computers on which we assemble our arguments. There may be some plausible arguments – other than the facts of geography – that set limits to our responsibilities to others. But until we formulate these properly we risk remaining ‘in denial’ about the possible obligations that we may have.

The organisers of the workshop whose proceedings are collected in this volume are professors at a leading centre for the study of human rights. They therefore seek to examine the role of human rights in all this. Why is it, they ask, that despite efforts to secure human rights ‘violations do still occur and injustice remains rampant’. They reply that ‘central to this problem appears to be that social, economic, cultural and political structures in societies provide for denialist defence mechanisms’.

Introduction

Chapter 2 of this thesis considered the regulation of cross-provincial establishment of companies in China, concluding that in some circumstances, businesses in China encounter difficulties when trying to establish firms across provinces. Moreover, the existing regulatory framework cannot effectively deal with these obstacles.

Part II of this book provided the theoretical framework to study cross-border business establishment. As shown by the theory, there are some public interest justifications to impose different requirements on cross-border establishment on the one hand and regular establishment on the other hand. Nevertheless, regulating cross-border establishment can profit certain interest groups. Another issue treated by Part II was whether cross-border business establishment should be regulated at central level or at local level. The theory demonstrates that some public interest grounds can be used to justify regulating cross-border establishment at central level. However, some interest groups can benefit from centralization of the regulation of cross-border establishment.

In this chapter, the framework developed in Part II will be employed to examine regulation of the inter-provincial establishment of companies in China. Section 2 summarizes the rules concerning inter-provincial establishment and points out that regulators at central level shoulder the responsibility of governing this activity. Section 3 provides a public interest analysis of the regulation of the inter-provincial establishment of companies. More specifically, section 3.1 examines public interest grounds to differentiate requirements for inter-provincial and general establishment. Public interest arguments in favour of empowering central regulators to govern the inter-provincial establishment of companies are explored in section 3.2. Section 4 analyses the regulation of the inter-provincial establishment of companies from a private interest perspective. Section 4 starts with the discussion of private interest justifications for having different rules for inter-provincial establishment and general establishment in section 4.1. Thereafter, private interest reasons to regulate the inter-provincial establishment of companies at central level are discussed in section 4.2. Section 5 contains a conclusion.

Regulation of the Inter-provincial Establishment of Companies in China

As discussed in Chapter 2, minimum capital requirements and licensing are essential requirements to expand across provincial borders in China. Firms from one province seeking to establish operations in another can choose between subsidiaries and branches. Minimum capital requirements apply for subsidiaries, but not for branches. Apart from the capitalization rules, obtaining an establishment registration license is a necessary step to open subsidiaries and branches in China.

CRITICISM OF THE EUROPEAN COURT OF HUMAN RIGHTS

The European Court for Human Rights (ECtHR) is rarely discussed in critical terms in Swedish media or in contemporary legal and political debate in Sweden. The limited discussion on the role of the ECtHR may be linked to the historical development of the constitutional protection of human rights in Sweden, the status of the convention, and aspects of Swedish legal culture. In this section, the development of constitutional protection of fundamental rights in Sweden is outlined, followed by a section with examples of criticism of the ECtHR.

THE DEVELOPMENT OF CONSTITUTIONAL PROTECTION OF FUNDAMENTAL RIGHTS IN SWEDEN

Ratification of the ECHR

When Sweden ratified the European Convention on Human Rights (ECHR) in 1952, the 1809 Regeringsform (Instrument of Government) was still in force. This old fundamental law had to some extent been inspired by Enlightenment ideals of protection of individuals and separation of powers. As still is the case, the Instrument of Government formed the Swedish constitution together with other fundamental laws. Far-reaching protection of the freedom of the press was set down in a special fundamental law, the Tryckfrihetsforordning (Freedom of the Press Act), tracing its origins to 1766. Apart from the provisions on the freedom of the press, fundamental rights were protected through ordinary legislation rather than constitutional law. There was no equivalent to the catalogues of rights found in constitutions dating from about the same time, eg in the USA or Norway. Furthermore, the changes in the way Sweden was governed that had taken place since the early 20th century – such as the introduction of parliamentarism and universal suffrage – were not reflected in the 1809 Instrument of Government. Later research has labelled the period ca 1920–1975 as the ‘half-a-century without a constitution’. To summarise, at this time constitutional law had a limited role in Sweden, and the status of constitutional protection of human rights was in general very weak. In spite of this, individual rights and freedoms were for the most part respected to a very high degree in Sweden through ordinary legislation and through the practice of the courts and administrative authorities.

RATIONALE OF THIS BOOK

The cases above illustrate that the safeguarding of human rights remains problematic, despite the proliferation of human rights instruments and the many actions taken by a variety of actors, such as governmental and non-governmental organisations, (individual) states and the international community in recent decades. Human rights violations do still occur and injustice remains rampant. Central to this problem appears to be that social, economic, cultural and political structures in societies provide for denialist defence mechanisms. Such deeply embedded denialism causes and/or facilitates human rights violations, because the true nature of the problems involved remains fully or partly unacknowledged and as a result appropriate action is not taken. In order to safeguard the effctuation of human rights, it is thus pertinent to acknowledge and address this problem of denialism and develop strategies to move beyond it.

To address the above-mentioned problem, an international conference was organised on the theme of Denialism and Human Rights by the Maastricht Centre for Human Rights.

INTRODUCTION

In Western countries, the demand for adoptable children, especially healthy infants, has been considerably high for several years. Rising infertility rates, liberal abortion politics, the widespread use of contraception, and the increasing acceptance of unmarried motherhood are factors that have decreased the number of infants available for domestic adoption in the United States, Canada and Europe. As a consequence, numerous involuntarily childless couples and individuals turn to intercountry adoption as viable alternative to have a child of their own. However, the continuing demand for children far outpaces the supply of orphans with the desired characteristics.

The imbalance between the number of prospective adopters and the children available for international adoption results in long waiting lists and high prices. The inordinate sums of money involved in the intercountry adoption system have created a commercial ‘underbelly’ where unethical and illicit practices are employed to provide the intercountry adoption market with adoptable children. Thus, children that are not in need of a home or that could have been properly cared for in their native countries are being placed internationally to meet the growing demand for intercountry adoptions.

Despite numerous well-documented adoption scandals, many promoters of intercountry adoption deny the widespread existence of the system's underbelly. They perceive that illicit adoption practices occur only rarely and consider decisions by sending countries to restrict or ban intercountry adoptions as ‘throwing the baby out with the bath water’. Even those who acknowledge the considerable evidence of illegal adoption practices downplay the profound harm inflicted upon the children, their birth parents as well as the local welfare systems. They argue that the positive aspects of intercountry adoption clearly outweigh any illegal adoption activities.

This article claims that purchasing, abducting and selling children for the purpose of adoption is a serious crime and seeks to explain why the issue and its harmful consequences is being denied by the international legal community, by scholars and the wider public. For this purpose, Henry and Lanier's ‘prism of crime’ is applied to illustrate the dimensions of the intercountry adoption system's underbelly.

CRITICISM OF THE EUROPEAN COURT OF HUMAN RIGHTS

As this chapter is being written, Russia's relations with the Council of Europe hit a new low. In July 2015, Russia's Constitutional Court proclaimed a judgment in which it explicitly referred to the supremacy of the Constitution of the Russian Constitution over the ECHR and reserved itself a right to review ECtHR judgments on the subject of their conformity with the Russian Constitution. Earlier, in January 2015, the Parliamentary Assembly of the Council of Europe (PACE) had decided not to restore the voting rights of the Russian delegation in the Assembly until April of the same year, amid the Ukrainian crisis, and in response Russia had moved to pull out of the PACE for a whole year. This new low point in the relationship between the country and the Council of Europe is in no way unprecedented. Russia's vote at the PACE had been suspended previously for several other reasons, last time in 2014, following the annexation of Crimea. The relationship between the two has been turbulent well since Russia's accession to the European Convention of Human Rights back in 1996, with series of further failures in Russia's human rights record only deepening the face-off : the war in Chechnya, death penalty, relations with Georgia, deteriorating human rights record domestically and ultimately the offensive on Ukraine.

The explanations to the country's uneasy relationship with the Council, as well as its Human Rights Court can be drawn from different perspectives. The distinct legal culture, inherited from the ruins of the Soviet Union, a country famous for its skepticism towards some key legal concepts and principles distinguishing the modern democratic society, may shed much light on this. Obviously, Russia's smooth integration into the European legal space is strongly undermined by the prevalence of a legal culture which carries the heavy influence of both continental legal positivism and a heritage of communist legalism branded as “vulgar Marxian positivism”. Russia's legal development is also suffering in the hands of its corrupt political leaders who often attempt to exploit the prevalent patterns of formalism in law to reach their political goals. Russia's legal integration is finally weakened by the institutional design of the judiciary where courts often appear incompetent to apply constitutional principles and the case law of the ECHR due to jurisdictional limitations facing general courts.

CRITICISM OF THE EUROPEAN COURT OF HUMAN RIGHTS

The subtitle of this report, Je t'aime, moi non plus (I love you, me neither), is a reference to a famous song written by Serge Gainsbourg and sung as a duet with Jane Birkin, as well as to an article published by Professor Simon about the relationships between European courts, the Court of Justice of the European Union and the European Court of Human Rights. In our opinion, the poet's evocation of thwarted love provides an apt summary of the relationships that France maintains with the European Court of Human Rights.

Before beginning this short study, however, we should provide a brief definition of the notion of criticism. As is the case with any notion, criticism can be interpreted in several different ways. It can have a negative connotation, questioning the work of the European Court of Human Rights. On the other hand, it can be interpreted more positively as questioning the work without any attempt to dispute it. These two interpretations do not conflict with each other. Instead, they are complementary. Whereas an interrogation without premise can lead to radical questioning of a jurisdictional work, a negative premise can gradually transform into a comprehensive attitude of the Court's case law. Another point should be stressed as well. Criticism expresses a particular degree of knowledge, intermediating between the speaker (in this case, the European Court of Human Rights) and the party receiving the expression (in this case, the citizens/applicants). From this point, the criticism can interfere in this speech and possibly to disrupt it. It is therefore advisable to measure these effects.

This report thus constitutes a ‘criticism of the criticism’. In this context, the criticism becomes institutional, as it questions the meaning of what is being criticised, in addition to questioning those who are criticising it.

The relationships between France and the Council of Europe, and especially the mechanism of the European Convention on Human Rights and Fundamental Freedoms (hereinafter, the ECHR) and its judges are complex, and even ambiguous.

CRITICISM OF THE EUROPEAN COURT OF HUMAN RIGHTS

Though the United Kingdom has been a member state of the Council of Europe since 1951, and has permitted the right of individual petition before the European Court of Human Rights since 1966, ‘the Convention rights’ have only been enforceable at the domestic level since 2000, when the Human Rights Act 1998 (hereafter HRA) came into effect across the UK. In the short period during which the Convention rights have been directly applicable in domestic litigation – in defining the contours of legal action taken by public authorities and as tools capable of tempering the requirements of rights-infringing legislation – the Convention and the European Court of Human Rights have become somewhat notorious in political discourse in the UK. It has become commonplace for the European Court of Human Rights to be accused of overreach, of utilising the ‘living instrument’ doctrine to develop the Convention's protections illegitimately and, as a consequence, of increasingly interfering with national sovereignty. If the enactment of the HRA in 1998 amounted to a radical reformation in the UK's approach to legally enforceable rights – through ‘bringing rights home’ and giving them effect in domestic courts for the first time – a counter-reformation is now, only 15 years later, very firmly in progress.

The recent upsurge in criticism of the Convention rights and of the European Court of Human Rights can undoubtedly be traced back to the 1998 enactment of the HRA. Prior to the HRA coming into effect across the UK, the dualist nature of the constitution largely precluded direct reliance on the Convention rights in domestic law. As Lord Donaldson starkly noted in the then leading decision of Brind:

Introduction

Chapter 4 offered the public and private interest reasons for national authorities to regulate the establishment of companies. Licensing and minimum capital requirements were discussed in Chapter 4 as two ways to regulate business establishment. Chapter 5 studies the cross-border establishment of companies in a multi-level jurisdiction and provides economic explanations for the regulation of cross-border establishment. The discussion in this chapter covers conditions of licensing for business establishment such as environmental standards and labour and safety requirements, since these conditions are of particular importance for the set-up process.

The study in Chapter 5 raises two questions. In section 2, the question is addressed whether cross-border business establishment should be regulated by rules different from the regulations of the establishment of companies. After that, sections 3 to 7 treat the issue whether the existence of the cross-border establishment is a reason to shift the regulatory competence to a higher level. More specifically, section 3 briefly introduces competitive federalism and fiscal federalism, followed by section 4 that discusses the criteria for centralization. Section 5 applies the arguments from section 4 to cross-border business establishment. Section 6 considers whether it is necessary to regulate cross-border establishment at central level, in order to deal with local protectionism. In section 7, attention is shifted to the implications of public choice theory for the centralization of the regulation of cross-border establishment. Section 8 contains a conclusion.

An Economic Analysis of the Regulation of the Cross-border Establishment of Companies

Public Interest Reasons for Regulating the Cross-border Establishment of Companies

When companies establish businesses across borders, the investment destination may impose stricter establishment requirements on these non-local companies than local enterprises. The public interest reason for greater regulation of the crossborder establishment of companies can be information asymmetry. Compared to businesses funded by local enterprises, consumers may have more difficulties to find information about companies formed by investors from other states, for example in relation to the reputation of a company. As Jeng asserts, company reputation is a signal of quality when considering buying new products or services. Nevertheless, he points out that the reputations influence customers’ assessment of the quality only before the goods or services are used.