US Billof rights and European Convention on Human Rights

[UDS]

@ruadh

I don’t know of any case where a state has *explicitly *relied on Article 16 to do so, i.e. cases where a restriction on “alien” political activity was upheld on the basis of Article 16. It’s undoubtedly the case though that member states specifically monitor the political activity of non-citizens and may have regard to it in, for example, the processing of naturalisation applications. Germany for one has a law that bars citizenship for members of parties that are “aimed at subverting the free democratic constitutional system”; this was used to deny citizenship a few years ago to an elected member of Die Linke. The applicant was an EU national so under the Piermont decision Article 16 wouldn’t have applied anyway, but you could certainly envisage a scenario where a non-EU national challenged the law and Germany defended it on the basis of Article 16.

Denying citizenship (or any other right, privilege or status) to someone on the basis that they have engaged in a particular activity may or may not be objectionable under the Convention, but it’s not denying them anything on the basis of their being an alien. Everyone who applies for naturalisation is necessarily an alien; if some people are granted naturalisation while others are refused, whatever the basis for the distinction it can’t be alien status.

@ruadh

There’s very little in the ECHR’s travaux about it - it seems to have just been taken for granted at the time that states had the power to restrict political activity by non-citizens. Nowadays I assume states probably would not want to give up the ability to fall back on Article 16, where all else failed, as a (purported) “anti-terrorism” measure.

I’m guess that it actually looks back to pre-war experience, with, e.g., the German government sponsoring pro-Anschluss movements in Austria. It’s generally accepted even today that states can deny non-citizens the right to vote, the right to stand for election, etc, and the implicit justification for this is that non-citizens have no obligation of allegiance. The same argument could be used to justify restrictions on other forms of political activity by non citizens, e.g. joining or running a political party, campaigning on political issues.

And we must remember that in the years coming up to 1950 there were still large numbers of displaced persons in Europe who were aliens in the place where they were living, and who were not happy with their situation. Possibly that was seen as a potentially destabilising state of affairs, which host countries had to be able to attempt to contain through limiting political activity. Just a guess.

I don’t think such sentiments are entirely dead. As I recall in Ireland there are allegations from time to time that certain socially conservative political movements are financed, or even led, by socially conservative interests in the US (or, if you’re a conspiracy theorist, by the CIA) and that this somehow delegitimises their viewpoints and their campaigns. It’s a short step from there to arguing that such groups should not be allowed to be funded or supported by foreign interests.

[Jonathan_Chance]

Ibn, Pjen-

Both of you will shut up about each other’s personalities and desist on the cheap shots or warnings will follow.

As a matter of fact, from this point forward any personal shot of any type from anyone will earn a warning. It would be unfortunate if that happened, wouldn’t it?

[ruadh]

@UDS

Denying citizenship (or any other right, privilege or status) to someone on the basis that they have engaged in a particular activity may or may not be objectionable under the Convention, but it’s not denying them anything on the basis of their being an alien. Everyone who applies for naturalisation is necessarily an alien; if some people are granted naturalisation while others are refused, whatever the basis for the distinction it can’t be alien status.

The issue here is the potential chilling effect on political activity by non-citizens, if they know that getting involved in such activity may have adverse implications for their citizenship or residency status. Something that citizens would not need to worry about.

As I recall in Ireland there are allegations from time to time that certain socially conservative political movements are financed, or even led, by socially conservative interests in the US (or, if you’re a conspiracy theorist, by the CIA) and that this somehow delegitimises their viewpoints and their campaigns. It’s a short step from there to arguing that such groups should not be allowed to be funded or supported by foreign interests.

Under SIPO rules they aren’t allowed to be funded or supported by foreign interests. Many of them find a way around this, though.

[tomndebb]

Ibn Warraq and Pjen, Jonathan Chance has already addressed the issue of personal feuding.

I will note two further matters:
While I do not see any “stalking,” it is definitely bad form to drag disputes from one thread into a different thread with claims of “you didn’t answer. . .”;
and implications of lying are also not permitted in this forum.

Both of you cool down.

[ /Moderating ]

[Nava]

@UDS

The Convention doesn’t forbid same-sex marriage, but equally it doesn’t affirm a right to same-sex marriage, or provide grounds for compelling any state either to provide for the celebration of same-sex marriages or to recognise same-sex marriages celebrated in other states (Schalk & Kopf -v- Austria).

Right, it doesn’t require SSM, but the original criticism was that it didn’t allow it. The two are almost opposite. And there is no requirement to recognise any marriages celebrated in other states; some states make it a point to not celebrate marriages that won’t be recognized in the country or countries of which the spouses are citizens (for example Spain), others don’t.

[Exapno_Mapcase]

@UDS

Ultimately, you are dependent on the quality of the courts and the quality of the judges; your human rights documentation can never do more than give the courts and the judges the tools with which to defend human rights, but they have to be willing and able to use them.

The whole “strict scrutiny” approach is not set out in the US Bill of Rights; it’s an approach the courts have developed to give the provisions of the Bill of Rights meaningful practical effect. The ECHR is taking a different approach, by reading a great deal into the phrase “in accordance with the law”, but the objective is the same; to make sure that the rights recognised in the Convention have force and effect, and the kind of tokenism that jtgain suggests won’t work to circumvent the Convention.

Dependence on the judges is a weakness (or a strength?) shared by both systems, and so not a point of distinction between them. If there is a distinction, it’s probably to be found in the slightly differing lists of rights - the right to keep and bear arms being an obvious example, protected in the US but not under the Convention, or the right to freedom of conscience, protected under the Convention but only having limited protection under the Bill of Rights under the rubric of the free exercise of religion. But (a) I think these distinctions are fairly marginal, compared with the enormous amount recognised and protected by both systems, and (b) in many cases what we are really talking about is the balancing of competing rights. The US right to keep and bear arms, for example, may help to create an environment in which the right of the people to be secure in their homes and in public places is not vindicated as effectively as it might be. Or, the US and Europe may strike a different balance between the right to free speech, and the right not to be victimised on account of race or religion. Ultimately these are value judgments; you can’t show that the US has got it wrong by showing that Europe has struck a different balance, or vice versa.

I don’t want to not respond to this, but there’s little to say. Your arguments are quite good. You need to make them to Pjen, because he’s the one who started the thread by saying otherwise.

[UDS]

@ruadh

Under SIPO rules they aren’t allowed to be funded or supported by foreign interests. Many of them find a way around this, though.

Well, there you go. Perhaps some of the SIPO rules would fall foul of the Convention if it were not for Article 16.