European Public Order Research Articles

Multiparty Democracy: International and European Human Rights Law Perspectives

AbstractAlthough multiparty elections are not explicitly required by international human rights instruments or the European Convention on Human Rights (ECHR), certain human rights provisions have been interpreted as leading to such a requirement. While a democratic interpretation of human rights law has been settled in the ECHR framework, it remains disputable at the universal level. Despite numerous references to democracy in the documents adopted in the UN framework in the post-Cold War era, this article argues that an explicit link between international human rights law and multiparty elections has yet to be established. On the other hand, such a link has been developed by the European Court of Human Rights (ECtHR). Multiparty elections are considered to be part of the European public order. Moreover, the ECtHR has shown that it understands democracy beyond the existence of electoral procedures. But the role and understanding of democracy within the ECHR cannot be universalized.

Which European Public Order? Sources of Imbalance in the European Area of Freedom, Security and Justice1

The creation of the Single European Market has been accompanied by an intense discussion on whether market-creating measures have been privileged over market-correcting ones by the institutional system of the EU. The creation of an ‘Area of Freedom, Security and Justice’ (AFSJ) launched by the Treaty of Amsterdam poses a similar question which, however, has remained heavily under-researched: will the balance between policing competencies and individual rights shift towards the former at the expense of the latter? Recent work on the ‘new raison d’état’ and the strengthening of national executives in processes of Europeanisation points in this direction. This essay explores the parallels between the Common Market and the AFSJ with regard to the relationship between the structures and substance of governance. The balance between security and individual rights is scrutinised in the main pillars of the AFSJ: asylum cooperation, judicial cooperation in criminal matters and police cooperation.

Participatory Governance and European Administrative Law: New Legal Benchmarks for the New European Public Order

European Governance is more than just a policy instrument without legal significance. Its regulatory sub-divisions, such as Comitology, the Lamfalussy procedure, and the growing number of European administrative agencies, have colonized substantive parts of the law-shaping and law-making processes. This contribution argues that European Governance is a distinct phenomenon that cannot be easily reconciled with traditional notions of legislation and administration, but needs to be theorized differently. Accordingly, its legal shape has to be adjusted to this new situation, too. Neither a - still only vaguely defined - concept of 'accountability', nor a non-binding policy concept of 'good governance' can fill this gap. A re-definition of European Governance - as an 'integrating administration' - has to take the new developments of a distinct European administrative governance sphere seriously. At the same time, it has to address the specific legitimatory problematique of the new governance structures in a sufficient manner. The specific character of these structures calls for an institutionalization of participatory patterns within the governance structures: by ensuring the involvement of civil society actors, stakeholders and the public in the arguing, bargaining, and reasoning processes of both European governance and European regulation, the odd position of European governance, which oscillates between legislative and administrative functions, can be targeted more adequately.

The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order

This article explores the composition of the emerging international value system, including its hierarchical components. It also contrasts this fragile international value system with the more strongly developed European value system (European public order), as concretized by the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights. It first argues that international human rights norms constitute the ‘core content’ of a constantly evolving and layered international value system. Within this value system, a special but fragile hierarchical status is granted to those human rights norms that qualify as jus cogens and/or erga omnes norms. Thereafter it explores the manner in which the European Court of Human Rights has concretized the normative superiority of obligations under the European Convention on Human Rights for member states vis-à-vis other norms of public international law, to the extent that a conflict between these norms arises. It concludes by examining whether these developments could also strengthen the international value system through a spill-over effect via the work of international human rights bodies and national courts. This, in turn, would strengthen the ability of the international value system to determine the outcome of conflicts between international obligations stemming from different international regimes.

The Area of Freedom, Security and Justice: The Construction of a ‘European Public Order’

Despite the significant growth the Area of Freedom, Justice and Security (AFSJ) has seen recently, it is still comparatively under-researched. The main argument of the article is that norms have been constructed over recent years in such a way that the AFSJ has set a project in motion which aims to create a veritable ‘European Public Order’. This change has not come overnight though, and it has been normatively constructed over the past decade. In agreement with Christiansen, it is argued that a constructivist institutionalist approach may be best suited to analyse these developments, representing one of the new ‘high points’ of European construction. Four different stages of development are examined, i.e. the pre- and post-Maastricht, the Amsterdam and Tampere, and the Constitutional Treaty phases. These developments have now significantly altered the norm of national sovereignty in EU internal security. As a consequence of this, some of the most spectacular changes in the EU can be expected in this area in the future with the new five-year ASFJ programme agreed in The Hague.

Grading Scale of Degradation: Identifying the Threshold of Degrading Treatment or Punishment under Article 3 ECHR

Among international human rights instruments, the rich jurisprudence on Article 3 of the European Convention on Human Rights (ECHR) has yielded meaningful and workable principles for defining the normative parameter of freedom from torture and other forms of maltreatment. While identification of torture has been limited to a small number of straightforward cases of assault giving rise to physical and mental anguish of an especially aggravated character, the overwhelming majority of cases raised under Article 3 have related to degrading or inhuman treatment or punishment. By focusing upon threshold cases involving freedom from degrading treatment or punishment, the least serious absolute right under Article 3, this article seeks to delineate the boundaries of the effective guarantee provided by this absolute right in the Strasbourg organs judicial policy. The examination suggests an encouraging sign that the Strasbourg organs have funnelled considerable vigour and creativity into their law-making policy, elaborating on the most succinct provision in the ECHR. They have capitalised on the graduating scale of degrading treatment so as to diversify the protective scope of Article 3, in a continued search for progressive European public order. They have supplied to individual victims a horizon of possible arguments, which can unfold along lines conducive to the shaping and restructuring of the emerging European constitutional system.

The European Convention on Human Rights and International Public Order

It is commonly assumed that the European Convention on Human Rights, being a treaty of specific nature, embodies elements of European public order. However, there seems to be no authoritative or generally accepted definition of the public order of Europe, of its essential components, and of its relationship with the notion of international public order. This article will examine these questions. In pursuing this goal, the law-enforcement resources accumulated within the European system of human rights protection will be examined in the context of interaction between the public order of Europe as part of the law of the European Convention, and international public order as part of general international law.

The European Convention on Human Rights and International Public Order

It is commonly assumed that the European Convention on Human Rights, being a treaty of specific nature, embodies elements of European public order. However, there seems to be no authoritative or generally accepted definition of the public order of Europe, of its essential components, and of its relationship with the notion of international public order. This article will examine these questions. In pursuing this goal, the law-enforcement resources accumulated within the European system of human rights protection will be examined in the context of interaction between the public order of Europe as part of the law of the European Convention, and international public order as part of general international law.