Introduction to European JHA integration
1. JHA POLICY AREAS
EU will be inclusive of Schengen. Today and the first 5 classes is about Initial history: going back to the
council of Europe. Essentially, we’re doing 3 levels: we are going to see how they interacted, how they
worked together, inspired one another etc. it is showing how they affected policies here and now. This
is the list of topics what we are going to talk about in this class
JHA policy areas:
- asylum, migration, border-crossing …
- (judicial cooperation in civil matters)
This is not the core interest of this course → it’s part of it but he won’t be discussing it
- criminal law/policy
substantive criminal law (materieel strafrecht)
1999 – Amsterdam = competence of the EU
criminal procedural law (formeel strafrecht)
= how the game is being played or ought to be played, how can they investigate
etc
The EU got competence of these two quite late (2009)
international co-operation in criminal matters
judicial co-operation
› The council of Europe (established immediately after WW 2) was
immediately looking at matters of judicial cooperation in criminal
matters
› substantive criminal & criminal procedural law
› First area in which states agreed that they should be able to cooperate
police and customs (law enforcement) co-operation
› Police & customs cooperation have been treated differently than
judicial cooperation
› again competences have been gained by these actors to work together
across borders in Europe in later stages
› we needed to wait essentially till the Schengen implementation,
before there was nothing but old boys networks of cops across
borders
› Now: very strict rules about information sharing etc
- ‘security’
Security is difficult to define (umbrella term) → but you need to be careful not to
diminish other base rights for the right to security!!
The price that we pay to be secured is that we lose a lot of other rights so
dangerous term/concept → what links both domains
1
, Migration matters and criminal matter are all to be treated separately,
the one thing has to do with whom you allow to your territory (to protect the
integrity of your territory) → if we refuse a person entry, does it mean that we
find that that person is a criminal or a suspect? No
security blurred the boundaries between both things totally because
immigrants are being perceived as threatful (islamitic terrorism)
politicians are interconnecting the two domains and are establishing security
policies as if the distinction no longer matters = enormous impact!!
Security also has to do with military because typically when people are afraid they look
for an enemy outside to protect the homeland (from migrants or foreign threats or
attacks)
blurring of different purposes: criminal law policy, migration policy and typical
military means = dangerous!
2. PRINCIPAL JHA COOPERATION LEVELS
The different levels that we tackle:
- Council of Europe (hereafter: CoE) (limited unless for EIJHAS course)
- European Communities (EC) | European Union (EU)
- Schengen (including Prüm)
- Benelux, NATO, OSCE, G7/G8, OECD, UN (EIJHAS course only)
- handbook: origin and historical development, institutional structure and functioning, policy,
(selective bibliography)
transversal European JHA integration overview
- during 5 joint classes
- transversal, i.e. cross-level character
rationale: institutional and policy dynamics are interwoven
not (entirely) following handbook/paragraph order
3. COUNCIL OF EUROPE
3.1. DEVELOPMENT & MANDATE
Council of Europe (CoE):
- Established in 1949
At the time a small group of countries and the primary reason for its establishment
which was prepared during the conference inn Den Haag in 1984 was to sort of try
and establish a united stated of Europe (what Churchill called for after the atrocities
of WW 2)
The essence of CoE was to overcome the atrocities and get more united
2
,- 1950 ECHR | ECtHR
The essence of CoE easily explains why we get immediately the ECtHR (European
convention of human rights) in 1950
= core – constitutional text of democracy and human rights in Europe
so individuals can challenge issues
essential to become a member of the CoE!
You cannot become a member unless you subscribe to these fundamental
human rights
In the mean time we have over 200 CoE conventions (several of them features
protocols and editions that have been drafted over time)
- today: 47 countries
it’s grown in to a big organisayion (47 countries) --> several of the treeties that have
been concluded by the CoE are actuallt also open to numb CoE states = the hard law
output of the CoE convential law which maybe become like combining apon states
and sometime sbecome part of domestic order of states is accesable to a logic
??????? IK SNAP DIT NIE BRO
- intergovernmental cooperation
Intergovermental organisation: most important tging about the CoE
explains why it’s been looked upon and considered insufficient to the political
stability of europe in the post WW climate
It is only intergovermental meaning all goverments, all states are equal, and they
decide themselves retaining their soverenty righgts for 100% what they comit to and
what they do not comit to.
It is the essence of intergovernmental cooperation: you sit together because you are
eager to do something probably but at the end of the day the common results is
compromised heavily by the willingness of each individual party and to really commit.
Meaning there is no power at the top, not a supernational organization which have
certain direct powers in different member states → it is NOT like that
This is the reason why there was another movement to establish the European
communities which were supernational in nature (see later)
- legal instruments
conventions, resolutions, recommendation
conventions: seemingly strong, still weaknesses
In general in addition to conventions the CoE also produces other instruments legally
because unfortunately everything international bodies do comes in a sort of legal
shape even if the substance is not legal (hindrance because you need to read through
the legal shell to get to the content) → resolutions or recommendations about style,
language etc
Conventions are the only hard instruments
convention = instrument which is first negotiated, they happen by a negotiator on
behalf of the government (they conclude a deal and if they are happy with the result
after 5 years they will sign it = we open the convention for ratification, we sign that
the convention is hereby established BUT that means nothing really because no one
has yet committed to the instrument, they just agreed to the text but it doesn’t
3
, become binding at ay party unless that party ratifies the convention (act by executive
power).
Before you bound you need to consult your population first, usually through
parliamentary system
You seek the approvement of parliament first, sometimes directly by the
population in a referendum
In any event on one of those steps is required before you can commit to it.
SO 3 steps:
1) Establish the text and sign it
2) Consult your population (usually parliamentary level where you need a
bill of approval)
3) You can commit country and the text becomes bounding within your
country and on an international level
resolutions & recommendations are just there but are not binding!
It makes sense: there are a lot of brilliant texts with al lot of practical effect and even
legal effect that were never drafted as a binding text
For example: European prison rules → non binding!
But in the case law of the Strasbourg court there is so much reference to
precise rules of the European prison rules in looking at detention issues, at
substandard detention conditions and when a certain prison condition is
going to be substandard is largely based on the exact rules of the non-binding
European prison rules
So never understimat ethe value or relevance of a so called non binding text
Study: compliance of countries to binding en non-binding rules was equally spread SO
it is not because a norm is binding that states are more compiant wth these rules
than non-binding rules
- broad mandate, including penal matters
Why speak of the counncil of europe?
Broad mandate! From the start it looks at judicial co-operation in criminal
matters
This takes a very important place
- judicial co-operation in criminal matters (mother conventions)
everything we do today in a European context (including EU context) finds its bases in
the mother conventions of the council of Europe on the matter
- judicial co-operation in criminal matters & criminal policy (including aspects of substantive
criminal law and criminal procedural law) with regard to specific topics and/or particular
offences
In addition to mother conventions you see a range of documents including aspects of
substantive criminal law and criminal procedural law
4
1. JHA POLICY AREAS
EU will be inclusive of Schengen. Today and the first 5 classes is about Initial history: going back to the
council of Europe. Essentially, we’re doing 3 levels: we are going to see how they interacted, how they
worked together, inspired one another etc. it is showing how they affected policies here and now. This
is the list of topics what we are going to talk about in this class
JHA policy areas:
- asylum, migration, border-crossing …
- (judicial cooperation in civil matters)
This is not the core interest of this course → it’s part of it but he won’t be discussing it
- criminal law/policy
substantive criminal law (materieel strafrecht)
1999 – Amsterdam = competence of the EU
criminal procedural law (formeel strafrecht)
= how the game is being played or ought to be played, how can they investigate
etc
The EU got competence of these two quite late (2009)
international co-operation in criminal matters
judicial co-operation
› The council of Europe (established immediately after WW 2) was
immediately looking at matters of judicial cooperation in criminal
matters
› substantive criminal & criminal procedural law
› First area in which states agreed that they should be able to cooperate
police and customs (law enforcement) co-operation
› Police & customs cooperation have been treated differently than
judicial cooperation
› again competences have been gained by these actors to work together
across borders in Europe in later stages
› we needed to wait essentially till the Schengen implementation,
before there was nothing but old boys networks of cops across
borders
› Now: very strict rules about information sharing etc
- ‘security’
Security is difficult to define (umbrella term) → but you need to be careful not to
diminish other base rights for the right to security!!
The price that we pay to be secured is that we lose a lot of other rights so
dangerous term/concept → what links both domains
1
, Migration matters and criminal matter are all to be treated separately,
the one thing has to do with whom you allow to your territory (to protect the
integrity of your territory) → if we refuse a person entry, does it mean that we
find that that person is a criminal or a suspect? No
security blurred the boundaries between both things totally because
immigrants are being perceived as threatful (islamitic terrorism)
politicians are interconnecting the two domains and are establishing security
policies as if the distinction no longer matters = enormous impact!!
Security also has to do with military because typically when people are afraid they look
for an enemy outside to protect the homeland (from migrants or foreign threats or
attacks)
blurring of different purposes: criminal law policy, migration policy and typical
military means = dangerous!
2. PRINCIPAL JHA COOPERATION LEVELS
The different levels that we tackle:
- Council of Europe (hereafter: CoE) (limited unless for EIJHAS course)
- European Communities (EC) | European Union (EU)
- Schengen (including Prüm)
- Benelux, NATO, OSCE, G7/G8, OECD, UN (EIJHAS course only)
- handbook: origin and historical development, institutional structure and functioning, policy,
(selective bibliography)
transversal European JHA integration overview
- during 5 joint classes
- transversal, i.e. cross-level character
rationale: institutional and policy dynamics are interwoven
not (entirely) following handbook/paragraph order
3. COUNCIL OF EUROPE
3.1. DEVELOPMENT & MANDATE
Council of Europe (CoE):
- Established in 1949
At the time a small group of countries and the primary reason for its establishment
which was prepared during the conference inn Den Haag in 1984 was to sort of try
and establish a united stated of Europe (what Churchill called for after the atrocities
of WW 2)
The essence of CoE was to overcome the atrocities and get more united
2
,- 1950 ECHR | ECtHR
The essence of CoE easily explains why we get immediately the ECtHR (European
convention of human rights) in 1950
= core – constitutional text of democracy and human rights in Europe
so individuals can challenge issues
essential to become a member of the CoE!
You cannot become a member unless you subscribe to these fundamental
human rights
In the mean time we have over 200 CoE conventions (several of them features
protocols and editions that have been drafted over time)
- today: 47 countries
it’s grown in to a big organisayion (47 countries) --> several of the treeties that have
been concluded by the CoE are actuallt also open to numb CoE states = the hard law
output of the CoE convential law which maybe become like combining apon states
and sometime sbecome part of domestic order of states is accesable to a logic
??????? IK SNAP DIT NIE BRO
- intergovernmental cooperation
Intergovermental organisation: most important tging about the CoE
explains why it’s been looked upon and considered insufficient to the political
stability of europe in the post WW climate
It is only intergovermental meaning all goverments, all states are equal, and they
decide themselves retaining their soverenty righgts for 100% what they comit to and
what they do not comit to.
It is the essence of intergovernmental cooperation: you sit together because you are
eager to do something probably but at the end of the day the common results is
compromised heavily by the willingness of each individual party and to really commit.
Meaning there is no power at the top, not a supernational organization which have
certain direct powers in different member states → it is NOT like that
This is the reason why there was another movement to establish the European
communities which were supernational in nature (see later)
- legal instruments
conventions, resolutions, recommendation
conventions: seemingly strong, still weaknesses
In general in addition to conventions the CoE also produces other instruments legally
because unfortunately everything international bodies do comes in a sort of legal
shape even if the substance is not legal (hindrance because you need to read through
the legal shell to get to the content) → resolutions or recommendations about style,
language etc
Conventions are the only hard instruments
convention = instrument which is first negotiated, they happen by a negotiator on
behalf of the government (they conclude a deal and if they are happy with the result
after 5 years they will sign it = we open the convention for ratification, we sign that
the convention is hereby established BUT that means nothing really because no one
has yet committed to the instrument, they just agreed to the text but it doesn’t
3
, become binding at ay party unless that party ratifies the convention (act by executive
power).
Before you bound you need to consult your population first, usually through
parliamentary system
You seek the approvement of parliament first, sometimes directly by the
population in a referendum
In any event on one of those steps is required before you can commit to it.
SO 3 steps:
1) Establish the text and sign it
2) Consult your population (usually parliamentary level where you need a
bill of approval)
3) You can commit country and the text becomes bounding within your
country and on an international level
resolutions & recommendations are just there but are not binding!
It makes sense: there are a lot of brilliant texts with al lot of practical effect and even
legal effect that were never drafted as a binding text
For example: European prison rules → non binding!
But in the case law of the Strasbourg court there is so much reference to
precise rules of the European prison rules in looking at detention issues, at
substandard detention conditions and when a certain prison condition is
going to be substandard is largely based on the exact rules of the non-binding
European prison rules
So never understimat ethe value or relevance of a so called non binding text
Study: compliance of countries to binding en non-binding rules was equally spread SO
it is not because a norm is binding that states are more compiant wth these rules
than non-binding rules
- broad mandate, including penal matters
Why speak of the counncil of europe?
Broad mandate! From the start it looks at judicial co-operation in criminal
matters
This takes a very important place
- judicial co-operation in criminal matters (mother conventions)
everything we do today in a European context (including EU context) finds its bases in
the mother conventions of the council of Europe on the matter
- judicial co-operation in criminal matters & criminal policy (including aspects of substantive
criminal law and criminal procedural law) with regard to specific topics and/or particular
offences
In addition to mother conventions you see a range of documents including aspects of
substantive criminal law and criminal procedural law
4
