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II. Fourteen Against One: The Eu Member States' Response To Freedom Party Participation In The Austrian Government

  • Matthew Happold (a1)

The participation of the Freedom Party in the Austrian government has given rise to exceptional reactions both in Austria and internationally. The imposition of a freeze in bilateral diplomatic relations by Austria's European Union partners has been particularly notable, amounting to an unprecedented response to the election of a new government in another Member State. This note seeks to describe the development of events and assess the status of the 14 Member States' actions under international law, in particular in the light of any developing norms concerning non-intervention, respect for human rights and the right to democratic governance.

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1. For a French-language summary of the principal points of the declaration, see “Notre pays endosse sa responsibilité pour les pages sombres de son passé”, Le Monde, 5 Feb. 2000.

2. See Judt, Tony, “Tales from the Vienna Woods”, The New York Review of Books, 23 03 2000.

3. See Parliamentary Assembly press release, 25 Jan. 2000. Available from the Parliamentary Assembly's website at <>.

4. Statement from the Portuguese Presidency of the EU, 31 Jan. 2000.

5. Quoted in “EU threatens Austria over Haider's rise”, The Times, 1 Feb. 2000.

6. See European Parliament, Daily Notebook, 3 Feb. 2000. Available from the European Parliament's website at <>.

7. In the United Kingdom's case, measures have included the cancellation of an official visit of the Prince of Wales to Vienna and the refusal of government ministers to meet with the Austrian foreign minister, Benita Ferrero-Waldner, on a visit by her to London.

8. Quoted in “Prodi pledges to punish any rights breach”. The Times, 3 Feb. 2000.

9. Quoted in “Haider minuter asked to sup with the EU”, The Guardian, 8 Feb. 2000.

10. See “Portuguese leader raises prospects of an end to EU sanctions against Austria”, The Guardian, 24 May 2000.

11. See “EU losing race to end Austrian sanctions”. The Guardian, 29 June 2000.

12. Reproduced in Registrar of the European Court of Hunan Rights, press release no. 491, 29 June 2000. Available from the Court's website at <>.

13. Registrar of the European Court of Human Rights, press release no. 524, 12 July 2000. Available from the Court's website, Ibid.

14. “Austria plays referendum card against EU partners”, The Guardian, 5 July 2000.

15. See also The Times' editorial of 29 June, which described the sanctions as “legally dubious”. Leading article, “Out of the Hole”, The Times, 29 June 2000.

16. Sec, for example, the preamble to the Concluding Document to the Moscow Meeting of the Human Dimension of the CSCE (1991) 30 I.L.M. 1670, which states that “the commitments undertaken in the field of the human dimension … are matters of direct and legitimate concern to all participating States and do not belong inclusively to the internal affairs of the State concerned”.

17. See Article 6{1) of the Treaty on European Union (Consolidated Version), which states that “(t]he Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law

18. Sec Articles 6, 7 (on suspension) and 49 (on membership) of the Treaty on European Union.

19. Also see new Article 13, which provides that “the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on … racial or ethnic origin, religion or belief”.

20. Pt. VI, Report of the Geneva CSCE Meeting of Experts on National Minorities (1991) 30. I.L.M. 1692 at p.1700, incorporated by reference into the Moscow Concluding Document, op. cit. at note 16.

21. See Guiding Principle VII, Helsinki Final Act (1975) 14 I.L.M. 1292; ch.1V, Copenhagen Concluding Document (1990) 29 I.L.M. 1305; ch.II, Moscow Concluding Document, Ibid.

22. For discussion of this issue, see Murphy, Sean D., “Democratic Legitimacy and the Recognition of States and Governments” (1999) 48 I.C.L.Q. 545.

23. See, notably, Reisman, W. Michael, “Sovereignty and Human Rights in Contemporary International Law” (1990) 84 A J.I.L. 866 and Franck, Thomas M., “The Emerging Right to Democratic Governance” (1992) 86 A.J.I.L. 46.

24. The parties forming the government obtained some 53.8% of the vote.

25. See Fox, Gregory H. & Nolte, Georg, “Intolerant Democracies” (1995) 36 Harvard I.L.J. 1.

26. See M.A. v. Italy, reproduced in 2 Selected Decisions of the Human Rights Committee, U.N. Doc. CCPR/C/OP/2 (1984) at p.31 (Human Rights Committee) and KPD v. Germany (1955–57) Y.B. E.C.H.R. 222 (European Commission of Human Rights).

27. Foxe & Nolte, op. cit. note 25 at p.61.

28. See the responses to Fox and Nolte's article: Koskenniemi, Martti, “‘Intolerant Democracies’: A Reaction” (1996) 37 Harvard I.L.J. 231 and Roth, Brad R., “Democratic Intolerance: Observations on Fox and Nolte” (1996) 37 Harvard I.L.J. 235. See also Fox and Nolte Response” (1996) 37 Harvard I.L.J. 238.

29. Op. cit. note 1.

30. Nicaragua v. USA (Merits) I.C.J. Rep (1986), p. 108.

31. See, for example, G.A. Res. 2625(XXV) (1970) (the “Friendly Relations Declaration”) and G.A. Res. 45/150 (1990), the example given by Roth, op. cit. note 28 at p.237, which states that international law precludes calling “into question each State's right freely to choose and develop its political, social, economic and cultural system, whether or not they conform to the preferences of other States”. For commentary, see Roth, Brad R., Governmental Illegitimacy in International Law, Oxford, 1999.

32. See Article 2 of the Vienna Convention on Diplomatic Relations (“the establishment of diplomatic relations between States … takes place by mutual consent”.), which merely restates customary international law.

33. Although there are indications that the other Member States have been concerned not to be seen as intervening in Austria's internal affairs in any coercive way in their failure to state conditions for the resumption of normal diplomatic relations. See the interview on BBC radio described by Tony Judt when a Portuguese spokesman stated that the 14 were not seeking a change in government in Vienna, as that was an internal Austrian affair, but that the measures would be maintained for “as long as the situation continues”. Op. cit. note 2.

34. Indeed, had the 14 barred Austrian representatives from informal meetings of the EU governments, it might have been argued that, by effectively excluding Austria from the decision-making process, they were acting contrary to the requirement that they perform their treaty obligations in good faith. See Article 26 of the Vienna Convention on the Law of Treaties.

35. Op. cit. note 30, at p.128.

36. See Nowak, Manfred, “Human Rights ‘Conditionality’ in Relation to Entry to, and Full Participation in, the EU”, in Alston, Philip (ed.), The EU and Human Rights, Oxford, 1999.

37. See, in the context of the OSCE, Buergenthal, Thomas, “The CSCE Rights System” (1991) 25 Geo. Wash. J. Int'l L & Econ. 333, at 381.

38. It appears that when the German chancellor, Gerhard Schroder, suggested that Italy might incur similar ostracism shöuld the “post-Fascist” National Alliance enter government, the Italian prime minister, Massimo D'Alema, instructed his embassy in Berlin to make diplomatic representations to the German chancellory. See Judt, op. cit. note 2.

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