The Greek Stoic Zeno (336-270 BCE) postulated that all people are equal simply by virtue of being human. In practice, however, this theoretical insight played no role. For the longest time, its reflection was left to the philosophers. It was not until the American Declaration of Independence that human rights found their way into a political format. These rights, however, stopped at the indigenous population and the enslaved. On the European continent, the French Revolution made human rights a political concept. And the French Constitution of 1791 even included Jews – though by no means women. Of course, these rights did not apply to people outside the European continent.

It would take until December 10, 1948, for the “Universal Declaration of Human Rights” to be adopted by the United Nations. And it was not until September 3, 1953 that the European Convention on Human Rights was ratified.

Not all of those in authority saw the necessity of a legal approach to international law, human rights, guilt and responsibility in 1945. Fritz Bauer’s work “Die Kriegsverbrecher vor Gericht” (War Criminals on Trial), published in that very year, in which he demanded “a lesson in applicable international law” for the Germans, fell on deaf ears, at least in the perpetrator societies. And yet, the drafting and passing of the Universal Declaration of Human Rights sprang from a direct reaction to the atrocities committed in connection with World War II, particularly against civilians and especially against European Jews and other minorities. Hersch Lauterpacht played a not insignificant role in the development of a universal human rights code.

Lauterpacht, a native of what is now Ukrainian Shovkva in 1897, studied with the Constitutional Law scholar and legal philosopher Hans Kelsen in Vienna, then at the prestigious London School of Economics. From 1938 to 1955 he held the Chair of International Law at Cambridge, from 1951 to 1954 he was a member of the United Nations International Law Commission, and from 1955 until his death in 1960 he was a judge at the International Court of Justice in The Hague.

As a young man, Hersch Lauterpacht had experienced the catastrophes of the First World War. They were the trigger for his lifelong preoccupation with international law as well as human rights. The parental family of Hersch Lauterpacht had been murdered in the “Old Austrian” city of Lemberg. This may have motivated his focus on the status of the individual in international law and on the question of the proportionality of nation-state supremacy. It was in this context that Lauterpacht developed the terminology “crimes against humanity” to frame the egregious atrocities committed against civilians, a formulation that gave international law a decisive expansion. At the Nuremberg Trials, it legitimized the prosecution and conviction of Nazi actions against millions of civilian citizens. The definition was “murder, extermination, enslavement, deportation or other inhuman acts committed against any civilian population before or during war; persecution on political, racial or religious grounds, committed in the commission of or in connection with a crime over which the Court has jurisdiction, whether or not the act was contrary to the law of the country in which it was committed.” Since then, the protection of the individual against the state can also be claimed in the EU. The European Court of Human Rights in Strasbourg is legally responsible for this.

At the supra-European level, the International Court of Justice in The Hague is responsible for questions and proceedings under international law. When Hersch Lauterpacht, who played a key role in drafting the European and International Conventions on Human Rights, was to be appointed as a judge by the British in 1954, voices were raised criticizing this decision with the argument that the renowned international lawyer was not “British” enough for this office, which was clearly indicated by both his origin and his name.

Hersch Lauterbach died on May 8, 1960, fifteen years after the end of WW II  in London.

For many months, Croatian border guards have been trampling EU law and forcibly driving refugees back to Bosnia at the EU’s external border. They do this with the applause of some governments in Europe. Hungary and Austria are at the forefront of covering up this open violation of the law, or approving it when covering it up no longer works in the face of so much evidence. Finally, Austrian border officials are not squeamish when it comes to covering their ears at the Slovenian border when refugees ask for asylum – and instead forcibly push them back into Slovenia, from where they are deported to the Croats, who then dump them at the Bosnian border. In return, the EU then pays Bosnia money to take care of these illegally deported refugees. In Bosnia, this money ends up in invisible channels – but obviously not in refugee care. For example, hundreds of refugees were allowed to spend the end of the year outside in the freezing cold because the improvised Lipa tent camp still had no electricity, no water and no heating and was therefore closed down by the International Organization for Migration. Since then, not much has happened. Except what is now called “on-site assistance”: a few new, unheated tents, with no water and no electricity. 2000 refugees are now squatting in the forest, mostly under plastic sheets. In sub-zero temperatures. Many of the cases are well documented.
To this day, the European Court of Human Rights does not dare to address this ongoing breach of law by EU member states and aspirants. But at least Frontex, the border protection agency run by the EU itself, is now under investigation. For a long time, countries like Hungary, Poland and Austria placed high hopes in Frontex. Then Orban and Kurz realized that Frontex, too, must abide by laws. And Frontex fell out of favor.
But Frontex Director Fabrice Leggeri apparently wanted to save his reputation in Budapest, Warsaw and Vienna in 2020. So Frontex is now, as has been known for months, in the eastern Mediterranean involved in illegal refoulements off the Greek coast. And there are other things that seem to be going wrong at the agency, from intimidation of employees who have concerns to irregularities in tenders. Whether the ongoing investigations will have any consequences remains to be seen.

https://www.faz.net/aktuell/politik/ausland/ermittlungen-gegen-eu-grenzschutzbehoerde-frontex-17142763.html

https://www.tagesschau.de/ausland/lipa-lager-bosnien-101.html

https://www.derstandard.at/story/2000121752241/berichte-ueber-illegale-pushbacks-von-migranten-an-oesterreichischer-grenze

Translated with www.DeepL.com/Translator (free version)

So 500 people spent the last two days of the year in unheated buses. For 24 hours. Then they were let off again. They spent New Year’s Eve in the open air. On New Year’s Day, the Red Cross took care of them. Austria promises “help on the spot”. The Bosnian army puts up tents again. There are plenty of tents. Unheatable, like the ones before. The cynical game continues. The winter too.

Translated with www.DeepL.com/Translator (free version)

An EU rule-of-law procedure under Article 7 of the EU Treaty is already underway against both countries due to numerous and growing restrictions on freedom of the press and opinion, the independence of the judiciary and the sciences. Hungary and Poland leave out few opportunities to repeatedly sound out how far they can go with this.
Viktor Orban now claims that in reality the EU is trying to force Hungary to accept migrants and receives applause from the FPÖ in Vienna.

Both Poland and Hungary are indeed suffering from rampant emigration – well educated young people leaving Hungary and Poland to seek their fortune elsewhere. The expulsion of the Central European University from Budapest is only one link in a long chain of discouraging events that accelerate this bloodletting.

The EU, on the other hand, is not least concerned about the rampant corruption, which can no longer be fought by an intimidated judiciary. And the lack of public control of corrupt government action in the face of a press landscape that, in Hungary for example, is already almost entirely in the hands of Viktor Orban and his followers.

The laboriously negotiated compromise between the Council, the EU Commission and Parliament provides that a qualified majority of 15 states in the Council, representing at least 65% of the population of the EU, can block EU funds if there is a threat that the use of these funds is no longer subject to democratic, constitutional control. This is at least a first signal to the governments in Warsaw and Budapest, probably also to others who may feel that they are meant here.

Slovenian Prime Minister Janez Jansa is now also attacking the German Council Presidency for wanting to implement the compromise negotiated in the Council only a few days ago with Slovenian approval. Jansa himself, of course, does not threaten to veto it. Probably because he does not really know what he is getting himself into.

The veto of Poland and Hungary could turn out to be a boomerang. Dutch Prime Minister Mark Rutte is already threatening to continue the regular EU budget as an emergency budget and to adopt the Corona Fund as a bilateral agreement between the other 25 states, with Poland and Hungary then going away empty-handed. In the meantime, Poland and Hungary are practicing war rhetoric. They are waging a “freedom fight” against “slavery”. This is not badly received by the Polish population. Hungary, on the other hand, ignited the next stage of escalation.

Viktor Orban demonstratively relies on the Russian vaccine Sputnik V in the fight against Covid-19, although the EU states have agreed on a joint distribution of vaccines approved in the EU. Russia’s space probe Sputnik 1 triggered the Sputnik shock in the West in 1957, because Russia had succeeded in launching the first artificial earth satellite, even before the USA. Sputnik 1 transmitted a short wave signal and finally burnt up in the Earth’s atmosphere after 92 days of beeping. The Sputnik V mission was already a test for manned space flights. On board were two dogs, 40 mice and two rats, which landed safely back on earth one day later. A second Sputnik shock is certainly not to be expected. Russia will have enough to do to protect its own population. At the moment the number of corona deaths in Russia is also increasing dramatically. The waiting for the Sputnik miracle is still going on.

Felicitas Heimann-Jelinek spoke with Professor Andrea Petö on 10 September 2020 in Vienna about “illiberal democracy” and the situation of the constitutional state in Hungary, about the situation of women between corona and right-wing populism – and about the emigration of the Central European University to Vienna.

But whoever speaks of “political Islam”, like Sebastian Kurz and so many others, wants to level precisely this differentiation and instead cultivate a general suspicion. That “culture of suspicion” which is partly to blame exactly for encouraging people like the assassin of Vienna in his jihadist frenzy, which shares – and radicalizes – precisely this world view of “we” and “the others”.

But then Sebastian Kurz delighted the public with the surprising insight that the assassination attempt would not have taken place if the perpetrator, who was released after two-thirds of his prison time, was still in custody. Otherwise we would never have thought of this.
However, even the Chancellor could know that this is not only customary in principle, but also makes sense, because it is the only way the judiciary has a handle on imposing conditions on the convicted person, as long as there is no other evidemnce in sight, such as participation in the deradicalization program and regular support through probation services, even for a longer period of time than the actual imprisonment would last. But the Chancellor’s diffuse message was clear: the (green) Minister of Justice and the judicial system, indeed the constitutional procedures in general are somehow to blame for the disaster. The turquoise-blue Chancellor, however, felt that this assignment of blame seemed all the more “necessary” after it became clear that the Ministry of the Interior run by his fellow party member Nehammer and the Federal Department of Domestic Intelligence in particular had a real need for explanation. After it became known that the assassin had tried to obtain ammunition for a Kalashnikov rifle in Slovakia, the Slovakian secret service informed its Austrian colleagues. Only the judiciary and the probation office knew nothing about such things.
In his press conference, which began only an hour late (and with apparently some need for clarification behind the scenes), Karl Nehammer had to admit in a subdued manner that there had apparently been “communication problems”, “mistakes” that called for an independent investigation. Minister of Justice Zadic (of the Greens), on the other hand, politely refrained from now putting up retaliatory measures on her part.
Instead, Sebastian Kurz is now publicly blaming – well, of course, who is surprised – though incredible as it is, the European Union and its “false tolerance”. Against Austrian citizens born in Vienna, like the assassin of Monday? Nobody should ask about the logic of arguments here. The tendency is the usual one. The Kurz’s touch of reason lasted only a short day.

Has anyone in all these months come up with the idea that it might be possible to create more security in the EU with uniform measures to contain corona? Instead of national decathlon in disciplines that are now well known? Why do the Austrians have to abolish compulsory masks and the Italians keep them, why are the Viennese only now coming up with the idea of asking guests in pubs for contact details? The Germans have been doing that for a long time. Why should people in Vorarlberg shift their drinking home at 22.00? Would more clarity in the confusion of travel warnings be possible with more Europe-wide clarity of measures? Or is the chaos actually a clever system? According to the principle: the more confusion, the less mobility?

Hans Kelsen: Bust at the Viennese Constitutional Court

In 1917 Kelsen became a professor in Vienna. Among his students was Hersch Lauterpacht, who turned away from legal positivism and, as a follower of the doctrine of natural law, was to become one of the most important experts in international law of the 20th century – and who had a decisive influence on the creation of international human rights jurisdiction after World War II and the Holocaust.

In his work on constitutional law after the First World War, Kelsen already advocated a theory of democracy based on the respect and protection of minority rights: “The rule of the majority, which is so characteristic of democracy, differs from any other rule in that it not only conceptually presupposes an opposition – the minority – in its innermost essence, but also recognizes it politically and protects it in the fundamental rights and freedoms, in the principle of proportionality.” His dispute with Carl Schmitt on the question of whether the power of the sovereign or the right and protection of minorities deserves priority in a democratic society is legendary.

After his decisive involvement in the Federal Constitutional Law, whose 100th birthday was celebrated a few days ago on October 1, 1920, Kelsen remained the constitutional judge of the young republic. And soon came into the sights of the conservative governments that followed. The performance of Arthur Schnitzler’s play “Der Reigen” in February 1921 was to be the subject of an anti-Semitically charged campaign in Vienna. Vienna’s Social Democratic mayor Reumann refused to ban the play, as demanded by the Christian Social government. The Constitutional Court also ruled against a ban under Kelsen, provoking angry threats against Kelsen.

Finally, in 1929, another conflict broke out, ending Kelsen’s career in Austria. The Constitutional Court had made divorce, which had been forbidden in Catholic Austria until then, possible by recognizing the state “dispensatory marriage” introduced by the Social Democratic governor of Lower Austria as legal. The Christian-social federal government thereupon dismissed the entire constitutional empire by law and appointed new judges.

Kelsen accepted Konrad Adenauer’s offer to move to Cologne as a professor. But already in 1933 the National Socialist assumption of power in Germany put an end to his activities in Cologne. As the only one of his Cologne colleagues, Carl Schmitt did not take part in a petition in his favor.

Kelsen went to Geneva, and in 1936 to Prague, where his appointment triggered the furore among right wing anti-Semitic students. In 1940 he emigrated to the USA and settled in California. In 1945 he was honored by the Austrian Academy of Sciences, but an invitation to return to Austria never came. The elegance of “his” constitution is gladly remembered. But not so much of the laborious struggle for minority rights. Kelsen died on April 19, 1976 in Orinda, California.

René Samuel Cassin

Cassin’s father Azarie Henri Cassin came from a Sephardic, Portuguese-Marran family and worked as a wine merchant in Nice. His mother Gabrielle Dreyfus came from an Alsatian-Jewish family. Cassin was drafted to serve in World War I as a doctor of law and returned seriously wounded in October 1914. Still during the war, he founded the Union fédérale, the French association of war victims, together with other war participants, which he was to preside over from 1922. In 1921 and 1924 he organized conferences of war-disabled and veterans who advocated understanding and peace agreements between the enemy nations. He did so as a French patriot who was convinced of a French universal mission:

“For centuries we have embodied an ideal of freedom, independence and humanity”, and therefore for him the members of the Union fédérale were the “representatives of French morality in the world”.

As professor from 1920 in Lille, then from 1929 at the Sorbonne in Paris, he taught international law. Above all, however, Cassin was active in countless non-governmental organizations and political offices.  From 1924 to 1938 he represented France at the League of Nations. In 1940 he emigrated to London and, together with Charles de Gaulle, founded France Libre, the French exile army in the British armed forces. From 1941 to 1943 he became National Commissioner of the Free French Government in London and in 1944 he was one of the initiators of the French Committee for National Liberation in Algiers and as president of its legal commission prepared French legislation after 1945. In 1944 he became vice-president of the French Council of State (until 1960) and in 1946 also president of the French elite academy École nationale d’Administration.

From 1946 to 1958 he represented France at the United Nations and was one of the founders of UNESCO. In particular, he was one of the closest circle of authors of the United Nations Universal Declaration of Human Rights, together with Karim Azkoul, the Lebanese diplomat and philosopher.

Finally, from 1959 to 1968 he was vice president, then president of the European Court of Human Rights.

A trip to Palestine in the 1930s, perhaps also his Sephardic family heritage, had motivated him to work for the advancement of the Arab-Jewish population of Palestine. After 1945, in addition to his many other offices, he became president of the Alliance Israelite Universelle (which in the 19th century represented the ideals of the French Revolution and was intended to spread European education among Oriental Jews, not without a certain amount of European-colonial arrogance).

“Hitler’s main goal was the extermination of the Jews,” wrote Cassin, “but their annihilation was also part of an attack on everything the French Revolution stood for: freedom, equality, brotherhood and human rights. Hitler’s racism was essentially an attempt to erase the principles of the French Revolution.”
Cassin supported the Jewish national Zionist project after the annihilation of European Jewry. After 1945, however, Cassin demanded clear limitations on national sovereignty in all matters of human rights, which must take precedence over any national legislation and must also be enforced by means of coercive measures. His advocacy of social rights also aroused distrust of him in the United States. An official of the State Department did not hesitate to call him a “crypto-communist”. But apart from his commitment to human rights and the ideals of equality, Cassin remained a classically conservative liberal in many sociopolitical issues. For example, he had a rather hesitant attitude toward legal equality for women, and in the French parliament in exile in Algiers he even voted against the immediate introduction of active and passive suffrage for women.

Cassin died on 20 February 1976 in Paris.

Not funny, however, is what the schoolboys in the Austrian government do today. They can’t even send a halfway plausible application to the EU Commission, in order to help the Austrian economy, hit by the pandemic, with extra subsidies that are conflicting somehow with fair competion rules in the EU. Actually, this is important enough to make a bit of an effort.

Already a few days ago, Minister of Finance Gernot Blümel once again scolded the EU for blocking the extension and expansion of the generous economic aid to ailing companies (fixed cost subsidies). Now they yesterday met in Vienna, interestingly enough in front of invited press representatives, to discuss the disagreements with the EU representative in Vienna, Martin Selmayr. Did Mr. Blümel in erneast thought he could publicly embarrass the EU representative.

Thanks to the Austria Press Agency and the Standard, we were able to get a closer look at an utterly failed exercise in Message Control. Martin Selmayr was obviously not amused, partly because he was the last to speak instead of being allowed to explain the EU’s objections. The rascals from the first bench first had to present to the press their own interpretation of the sinister EU machinations. Martin Selmayr, himself a rather conservative politician, visibly had to stick to himself. And then calmly pointed out to the schoolboys that they simply had to submit a legally compliant application.

And that actually “today”, that is now yesterday, was the last day to do that. Time enough to do the homework had been indeed since the beginning of August, when the concerns of the EU Commission were communicated politely to the Austrian Minister of Finance. “If today the notification takes place as suggested by Mrs. Vestager (the Commissioner for Economic Affairs) last Friday, then it will be done tomorrow,” Selmayr said. A correct application could be done, “if three intelligent people get together, within half an hour”. He hopes that the Ministry of Finance and the Commission will “get it done this afternoon”. And he offered effective tutoring: There are three possible solutions, he said, even “if it is quite tight on the last day”. Then Selmayer insisted on tearing up Blümel’s original application in detail and demonstrating in public what an unprofessional sloppiness had been delivered. Which in turn did not amuse Gernot Blümel and Minister of Tourism Elisabeth Köstinger.

Selmayr explained to them coram publico how to write a proposal. What was possible in times of lockdown, namely to blame everything on a natural catastrophe and to pretend that there were no sales at all, that no longer corresponds to the circumstances. The basis for the application must now be a reference to the severe economic crisis that triggered the pandemic: “Then the Commission can approve immediately.”

The caught Blümel became impudent. “I ask you, stop with these paragraphs; I already know that one must pay attention to legal things”, so Blümel. “It is about Austrian, not European tax money that is to be used.”

Martin Selmayr continued to show his patience and advised once again to simply work together instead of stubbornly sticking to an application that could not be approved. And he also agreed with the company representatives present, who complained about their suffering, and repeated time and again that they were entitled to be helped, even in the amount they ask for. The schoolboys in Vienna would just have to do their homework “properly”, just like everyone else.

Gernot Blümel showed himself obviously disinterested in the fact that common and legally effective rules in the EU also apply to Austria, even when it comes to “Austrian tax money”. This is exactly what these common rules, from which Austria has so far benefited particularly in the Eastern and Central European markets, are made for.

Or is this loutishness calculation, the desire to play with fire in order to continue to stir up anti-EU sentiment. And as the already running program of financial aids for businesses is not really working smoothly – isn’t it better to blame Brussels for the mismanagement of the Austrian government and its authorities anyway? After all, their is an election campaign running in Vienna. Mr. Blümel is number one on the right wing-conservative party list.
And if nothing helps, daddy can bribe the director after all.