In 2021, Germany faces important general elections both at the state and the federal level. Holding elections in the middle of a pandemic is challenging. Organizing free and fair elections is even more so. But when is the election free and fair? This piece presents the answers given by the European Convention on Human Rights (Convention) and its authoritative interpreter, the European Court of Human Rights (Court). It devotes special attention to Article 3 Protocol 1 of the Convention, which stipulates that ‘The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.’
A response to Jürgen Gerhards and Michael Zürn
The systemic competition between China and liberal democracies has reached a new level. In addition to economic growth and development, managing the COVID-19 crisis has become a new benchmark for comparing the performance of alternative scripts. Jürgen Gerhards and Michael Zürn have called out China as the winner in containing the pandemic and mastering its economic and social consequences. They do not attribute China’s success to its autocratic system and to state capitalism. Pointing to the exceptional performance of Taiwan, South Korea, and Japan, Gerhards and Zürn argue that it is the shared approach of “testing, tracking, and isolating,” which explains the East Asian success.
Does the management of the coronavirus crisis show the superiority of a technocratic autocracy?
For a long time, social scientists have assumed that the liberal model of society consisting of individual self-determination, democracy, capitalist market economy, and welfare state was the ideal way to social development and modernization. This belief was not only based on the claim of normativ superiority, but also on the claim of superior performance. The last decades however, liberal democracies proved to be far more unstable and at risk, as autocratic developments in the United States, Poland or Hungary have shown. And existing autocracies, such as the communist China, turned out to be enormously successful. Continue reading
Due to Brexit, dispute has again arisen between the UK and Ireland over Rockall, a small rock in the North-East Atlantic Ocean, and its surrounding waters. On January 4th a Marine Scotland patrol boat stopped and boarded an Irish fishing trawler, forcing it to leave waters within 12 nautical miles of the rock. Scotland asserted the UK claim to Rockall in anticipation of Brexit and sent patrol boats to the area immediately upon formally exiting the EU legal order on January 1st. In response the Irish Ministers for Foreign Affairs and for Agriculture, Food and the Marine issued a joint statement saying they were engaging with Scottish authorities but that “there remains an increased risk of enforcement action being taken by Scottish fisheries control authorities against Irish vessels operating in the waters around Rockall at present.” Continue reading
Some governments have responded to the COVID-19 pandemic by developing policies based on ideas from behavioural psychology, especially ‘nudge theory’. But the pandemic has highlighted two important failings of ‘nudging’ – its libertarian opposition to state intervention; and its lack of any theory of psychological interiority.
First popularised by Harvard law professor Cass Sunstein and University of Chicago behavioural economist Richard Thaler, nudge theory has been credited for many policies that are common-sensical – positioning hand sanitisers in prominent locations in receptions of buildings accompanied by colourful signage will increase usage; citizens should be advised to sing happy birthday while washing their hands as this will ensure their handwashing lasts for the recommended duration; tissues might be placed within easy reach of office workers to discourage unprotected face touching; etc. Continue reading
As the literature on authoritarian constitutionalism and democratic decay has repeatedly remarked, there are several factors that distinguish the wave of neo-authoritarianism that currently travels the world from earlier instantiations of the genre. One of them is the fact that contemporary neo-authoritarians do not outlaw the opposition, cancel elections, shut down the media, or violently repress social discontent, but rather use softer and often legally admissible ways of advancing their agenda – generating patterns of gradual but sustained and ever deeper democratic erosion, instead of sudden collapse. A second distinguishing factor is that the current authoritarian wave affects as much “new” democracies that have experienced rule-of-law and democratic-quality problems for long, as prestigious constitutional democracies we considered to be exceedingly consolidated. There is a sort of unexpected levelling-down, “equalization-in-the-bad” component to current developments. Continue reading
I. Der massiv eingreifende Staat unter grundrechtlichem Rechtfertigungsdruck
Die Grundentscheidung vor über vier Wochen, der Corona-Pandemie mit einem weitgehenden Lockdown zu begegnen, war trotz der für die Nachkriegszeit präzedenzlosen Grundrechtseinschränkungen – bei aller berechtigter Kritik an Formalitäten (siehe hier und hier) und auch einiger Einzelmaßnahmen (siehe hier und hier) – grundsätzlich verfassungsrechtlich gerechtfertigt. Mehr noch, hätten die Bundes-und Landesregierungen einen Kurs verfolgt, der auf Grundrechtsbeschränkungen verzichtet hätte und der Pandemie freien Lauf gewährt hätte, um schnellstmöglich weitreichende Immunität und damit das relativ schnelle Ende der Pandemie bei möglichst geringem wirtschaftlichen Schaden zu erreichen, wäre eine solche Lösung auf der Basis der zum Entscheidungszeitpunkt vorliegenden Datenlage möglicherweise eine verfassungswidrige Verletzung der staatlichen Schutzplicht gegenüber dem Recht auf Leben und körperlicher Unversehrtheit potentieller Opfer der Krankheit. Continue reading