The Far-Right in International and European Law

Natalie Alkiviadou

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9780367075873
• eBook ISBN: 9780429664601
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

Since the Second World War, the international community has sought to prevent the repetition of destructive far-right forces by establishing institutions such as the United Nations and by adopting documents such as the Universal Declaration of Human Rights. Jurisprudence and conventions directly prohibit far-right speech and expression. Nevertheless, recently, violent far-right entities, such as Golden Dawn of Greece, have received unprecedented electoral support, xenophobic parties have done spectacularly well in elections; and countries such as Hungary and Poland are being led by right-wing populists who are bringing constitutional upheaval and violating basic elements of doctrines such as the rule of law.

In light of this current reality, this book critically assesses the international and European tools available for States to regulate the far-right. It conducts the analysis through a militant democracy lens. This doctrine has been considered in several arenas as a concept more generally; in the sphere of the European Convention on Human Rights; in relation to particular freedoms, such as that of association; and as a tool for challenging the far-right movement through the spectrum of political science. However, this doctrine has not yet been applied within a legal assessment of challenging the far-right as a single entity. After analysing the aims, objectives, scope and possibility of shortcomings in international and European law, the book looks at what state obligations arise from these laws. It then assesses how freedom of opinion and expression, freedom of association and freedom of assembly are provided for in international and European law and explores what limitation grounds exist which are directly relevant to the regulation of the far-right.

The issue of the far-right is a pressing one on the agenda of politicians, academics, civil society and other groups in Europe and beyond. As such, this book will appeal to those with an interest in International, European or Human rights Law and political science.

1 The definitional and conceptual framework

The far-right: semantics and notions

Far-right movements are not easily defined, with no consensus as to their definition, and with the lines between different terms that exist within this realm remaining blurred.¹ In fact, the terms ‘populist, neo-nationalist, far right, radical right and extreme right are often used interchangeably.’² According to Mudde, even though ‘the term right-wing extremism is today quite current in the social and political jargon, there is no unequivocal definition.’³ ‘Fascism,’ which is a ‘heavily contested term,’⁴ has also been used on occasion to describe such movements. This term can be traced back to Mussolini’s Italy (1922–1943), where ‘prototypal Italian fascism’⁵ emanated from and could subsequently be found in countries such as France, Great Britain and the Netherlands.⁶ European fascism is directly interrelated with the period between the end of the First World War and the end of the Second World War,⁷ and, notwithstanding that some pre-First World War traces of fascism existed, it was that war and its consequences which ‘truly forged fascism out of the primitive pre-war ore.’⁸ Fascism has been defined as a term which includes phenomena such as ‘hypernationalism, antiparliamentarism, antiliberalism, populism…’⁹ and as one which is ‘…a typical manifestation of 20^th century totalitarianism; resistance to modernization…’¹⁰ As such, and as noted in the Evrigenis Report, which was formulated by an expert committee on a EU level for the purposes of examining the rise of fascism and racism in Europe in the 1980s:

there was widespread insistence that the phenomena under consideration must be placed in a historical perspective, some experts even maintaining that the term fascism should be confined to the movements active in interwar Europe under that name.¹¹

Minkenberg also adopts this viewpoint by noting that the term fascism ‘refers to specific historical phenomena.’¹² Interlinked with the term ‘fascism’ is ‘Nazism’ and variations such as Neo-Nazi. In relation to Nazism, some of the experts who composed the Evrigenis Report placed fascism and Nazism under one umbrella, arguing that ‘nazism is part of a continuous ideological development in Europe,’¹³ whereas others noted the difference between Nazism and fascism by making reference to, inter alia, ‘the anti-Semitic aspect of nazism as distinguishing the two.’¹⁴ Importantly, ‘while fascist or neo-fascist movements or parties should indeed be considered right-wing extremist, not all right-wing extremist movements or parties may be considered fascist or neo-fascist.’¹⁵ More generally, the terms Fascism, Nazism, Neo-Fascism and Neo-Nazism were the terms employed by political and academic commentators until the 1960s, with the term right-wing extremism coming into play in the 1970s.¹⁶ In relation to the term right-wing extremism, it must be noted that this is favoured predominantly in Europe, whereas the term ‘radical right’ is more often used in the U.S.¹⁷ Furthermore, the term alt-right has recently seen a rise in the U.S.¹⁸

Either way, it is beyond the scope of this book to assess the constituents of the different definitions used to describe the movement under consideration. Instead, it is sufficient to note that the definitional framework adopted for the purposes of analysis of the ways in which this movement is challenged does not adopt an exclusionary approach towards any of the aforementioned definitions when appraising academic and legal text, given that they are, in many cases, employed interchangeably therein. However, when referring to the movement under consideration, the term far-right will be employed throughout for purposes of coherence, given that it is relatively neutral and all-encompassing of the varying characteristics and terms employed amongst continents and spheres.

The far-right: its structural framework

The far-right is an ideology promoted by individuals and groups. For the purposes of this book, far-right rhetoric and/or activity as uttered and/or carried out by political parties, non-party groups and the subculture milieu are assessed, looking at the far-right within the sphere of an organised or semi-organised movement rather than at far-right individuals with no affiliation to a particular entity or movement. Minkenberg divided the organised groupings of this movement into three different forms: those of a political party, a non-party group and a subculture environment. The first status enjoyed by such groups is that of a registered political party functioning within a democratic regime, pursuing support through elections and seeking to influence policy and practice through actual or pursued representation in the executive and/or legislature. Second are the non-party groups which are not rigidly structured and are ‘not geared towards elections or public offices but nonetheless aim to mobilize the public in general.’¹⁹ Third are the ‘small groups in the sense of a subculture environment’²⁰ which operate independently from the other entities and are more prone to violence than other groups.²¹ This does not mean that there is always a rigid separation of entities in the structure. For example, Golden Dawn is a political party with characteristics of a violent subculture movement, and with a rigid rather than a loose structure. In fact, it is the status of Golden Dawn as a political party that constituted one of the central reasons the State repeatedly cited for not interfering with its rhetoric and actions. As noted, ‘exclusion constrains radical right parties but cannot prevent the movement sector from developing comparatively strongly.’²² As such, the variations in structures will be taken into account when assessing the legal framework, with the benchmark being that the tools and obligations are applicable to the different forms which the far-right takes.

Hate speech

Hate speech constitutes a by-product of the far-right which does not enjoy a universally accepted formulation, with most States and institutions adopting their own understanding of what hate speech entails²³ without actually defining it.²⁴ Determining what constitutes hate speech in the absence of such a formulation becomes even more difficult when considering that hate speech may be ‘concealed in statements which at a first glance may seem to be rational or normal’²⁵ and does not necessarily manifest itself through the expression of hatred or of emotions.²⁶ As noted by the CERD, hate speech utterers ‘hijack the principles and mechanisms of democracy to legitimise racist and xenophobic platforms and hate speech.’²⁷ Although the CERD defines the process, it does not actually define the speech-act. One of the few documents, albeit non-binding, which has sought to elucidate the meaning of hate speech, is the Recommendation of the Council of Europe Committee of Ministers on hate speech.²⁸ It provides that this term is to be

understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including intolerant expression by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.

Interestingly, the Recommendation incorporates the justification of hatred as well as its spreading, incit...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication Page
• Table of Contents
• Acknowledgements
• List of abbreviations
• General introduction
• 1 The definitional and conceptual framework
• 2 The Theoretical Framework
• 3 The United Nations
• 4 The Council of Europe
• 5 The European Union
• 6 The United States of America
• Conclusion
• Index