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The Origins of Human Rights Regimes:
Democratic Delegation
in Postwar Europe
Andrew Moravcsik
The ftieth anniversary of the UN Universal Declaration on Human Rights marks an appropriate moment to reconsider the reasons why governments construct interna- tional regimes to adjudicate and enforce human rights. Such regimes include those established under the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the Inter-American Convention on Human Rights, and the UN Covenant on Civil and Political Rights. These arrangements differ from most other forms of institutionalizedinternational cooperation in both their ends and their means. Unlike international institutions gov- erning trade, monetary, environmental, or security policy, international human rights institutions are not designed primarily to regulate policy externalities arising from societal interactions across borders, but to hold governments accountable for purely internal activities. In contrast to most international regimes, moreover, human rights regimes are not generally enforced by interstate action. Although most arrangements formally empower governments to challenge one another, such challenges almost never occur. The distinctiveness of such regimes lies instead in their empowerment of individual citizens to bring suit to challenge the domestic activities of their own government. Independent courts and commissions attached to such regimes often respond to such individual claims by judging that the application of domestic rules or legislation violates international commitments, even where such legislation has been
For detailed suggestions and criticisms I am grateful to Gary Bass, George Bermann, Nancy Kokaz, Ronald Mitchell, Gerald Neuman, Daniel Nexon, Robert Paarlberg, Pasquale Pasquino, Kathryn Sikkink, Brian Simpson, and Henry Steiner, as well as Henning Boekle, John Ferejohn, Alexandra Filindra, Mary Ann Glendon, Virginie Guiraudon, John Ikenberry, Anne-Marie Slaughter, and participants in colloquia at Columbia University, Harvard University, New York University, the University of Oregon, the University of Pennsylvania, Princeton University, Rutgers University, and the 1999Annual Convention of the American Political Science Association. I thank Jorge Dominguez, Stephen Holmes, and Richard Tuck for particular guidance, and Monique Hofkin, Alejandro Lorite, Alexandra Samuel, and Ilya Somin for able research assistance. Finally, I acknowledge nancial and logistical support from the Weatherhead Center for Inter- national Affairs, the Center for European Studies at Harvard University, and the Center for European Studies at New York University. For an earlier version of this article with more detailed documentation, see Moravcsik 1998b.
International Organization 54, 2, Spring 2000, pp. 217– r 2000 by The IO Foundation and the Massachusetts Institute of Technology
enacted and enforced through fully democratic procedures consistent with the domes- tic rule of law. Arrangements to adjudicate human rights internationally thus pose a fundamental challenge not just to the Westphalian ideal of state sovereignty that underlies realist internationalrelations theory and classical internationallaw but also— though less-frequently noted—to liberal ideals of direct democratic legitimacy and self-determination. The postwar emergence of these arrangements has rightly been characterized as the most ‘‘radical development in the whole history of international law.’’^1 Consider, for example, the ECHR, established under the auspices of the Council of Europe and based in Strasbourg, France. The ECHR system is widely accepted as the ‘‘most advanced and effective’’ international regime for formally enforcing human rights in the world today.^2 Since 1953, when the ECHR came into force, it has sought to de ne and protect an explicit set of civil and political rights for all persons within the jurisdiction of its member states, whether those individuals are aliens, refugees, stateless persons, or citizens. It initially established a Commission on Human Rights to review petitions.^3 The Commission could investigate the case, seek to settle it, or forward it under certain circumstances to a court of human rights, whose decisions governments are legally bound to follow. Two optional clauses of the ECHR, Articles 25 and 46, were subsequently adopted by all member states; they permit individual and state-to-state petitions and recognize the compulsory jurisdiction of the court. Many European governments have subsequently incorporated the convention into domestic law, directly or indirectly. For these reasons, the ECHR Court is right to proclaim the convention ‘‘a constitutional document of European public order.’’^4 Over the last half-century, analysts agree, the legal commitments and enforcement mechanisms entered into under the ECHR have established ‘‘effective supranational adjudication’’ in Europe. Compliance is so consistent that ECHR judgments are now, in the words of two leading international legal scholars, ‘‘as effective as those of any domestic court.’’^5 In hundreds of cases where an explicit decision has been taken or a
- See Humphrey 1974, 205, 208–209; Krasner 1995; and Falk 1981, 4, 153–83.
- Petitions could be judged admissible if they meet several criteria, most importantly the prior exhaus- tion of domestic remedies. Henkin et al. 1999, 551. In this article I am not concerned with purely rhetorical human rights documents, such as the UN Universal Declaration, but solely with enforceable commit- ments. Rights imply remedies, without which the former are of little utility. Unsurprisingly, hypocrisy in signing declarations without mechanisms for direct enforcement appears to be without signi cant cost, regardless of a country’s domestic policies. While liberal democracies may be more likely to sign such declarations, they are hardly alone in their willingness. At the height of the Cold War, the United States, the USSR, China, Iran, and dozens of other countries found ways to work around their differences and signed the wide-ranging UN Declaration on Human Rights. Some analysts conjecture that in the longer term such declarations help mobilize societal opposition to nondemocratic governments, for example, through the Inter-American and Helsinki CSCE–OSCE regimes. Yet it is telling that those interested in effective enforcement have consistently sought to establish mechanisms for raising and resolving disputes, as with the UN Covenants in the 1960s and the CSCE Vienna mechanism in 1989. Brett 1996.
- See Janis, Kay, and Bradley 1995; Robertson and Merrills 1993; and van Dijk and van Hoof 1998. With reforms that came into effect in 1998, the commission was abolished and its activities turned over to the court itself, with similar criteria for admitting claims.
- Loizidou v. Turkey , 310 Eur_._ Ct_. H.R_. (ser. A, 1995), 27.
- Helfer and Slaughter 1997, 283, who draw on Shapiro 1981, 7, 26–36.
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reciprocally binding human rights enforcement —a seldom-noted tendency for which realists and ideational theorists have no explanation. The primary proponents of re- ciprocally binding human rights obligations were instead the governments of newly established democracies. This curious pattern is explicable only if we adopt a different theoretical starting point: the domestic political self-interest of national governments. Establishing an international human rights regime is an act of political delegation akin to establishing a domestic court or administrative agency. From a ‘‘republican liberal’’ perspective— one related to institutional variants of ‘‘democratic peace’’ theory as well as to the analysis of ‘‘two-level games’’ and public-choice theories of delegation—creating a quasi-independent judicial body is a tactic used by governments to ‘‘lock in’’ and consolidate democratic institutions, thereby enhancing their credibility and stability vis-a`-vis nondemocratic political threats. In sum, governments turn to international enforcement when an international commitment effectively enforces the policy pref- erences of a particular government at a particular point in time against future domes- tic political alternatives. I argue that governments will resort to this tactic when the bene ts of reducing future political uncertainty outweigh the ‘‘sovereignty costs’’ of membership. It fol- lows that ‘‘self-binding’’ is of most use to newly established democracies , which have the greatest interest in further stabilizing the domestic political status quo against nondemocratic threats. We should therefore observe them leading the move to en- force human rights multilaterally, whereas established democracies have an incen- tive to offer lukewarm support at best. In the case of the ECHR, this theoretical approach best explains the cross-national pattern of support for binding norms, the tactics governments employed, and the archival record of public rhetoric and con - dential domestic deliberations. The implications of this approach go well beyond postwar European human rights. The logic of ‘‘locking in’’ credible domestic policies through international commit- ments can be generalized to other human rights regimes—including the recent Inter- national Criminal Court—and unilateral human rights policies, not least the appar- ently anomalous behavior of the United States, as well as to other issue areas in world politics, regardless of whether their substantive content is ‘‘liberal.’’ The latter include the stabilization of autocratic regimes under the Concert of Europe and Com- intern, and the coordination of monetary and trade policies.
Existing Theories of International
Human Rights Cooperation
Existing scholarship seeking to explain why national governments establish and en- force formal international human rights norms focuses on two modes of interstate interaction: coercion and normative persuasion. Respectively, these de ne distinc- tive ‘‘realist’’ and ‘‘ideational’’ explanations for the emergence of human rights re-
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gimes. Despite being widely viewed as theoretical antitheses, many empirical predic- tions of these two explanations converge.
Interstate Power: ‘‘For Countries at the Top, This Is Predictable’’
Realist theories of international relations, and thus of the origin of human rights regimes, stress the distribution of interstate bargaining power. Governments accept international obligations because they are compelled to do so by great powers, which externalize their ideology—a prediction that follows equally from hegemonic stabil- ity theory and conventional realist bargaining theory.^9 All governments seek to main- tain full domestic sovereignty wherever possible. With governments uniformly skep- tical of external constraints, the major limitation on cooperation is the cost of coercion or inducement, which is inversely proportional to the concentration of power. Estab- lishment of a binding human rights regime requires, therefore, a hegemonic (‘‘k’’) group of great powers willing to coerce or induce recalcitrant states to accept, adjust to, and comply with international human rights norms. The greater the concentration of relative power capabilities, the greater the pressure on recalcitrant governments and the more likely is an international regime to form and prosper. Precise formulations of the realist argument vary. E. H. Carr, Hans Morgenthau, and other classical realists maintain that governments employ liberal ideology, includ- ing support for human rights, to justify the pursuit of geopolitical interest.^10 Jack Donnelly writes of the Inter-American Convention on Human Rights that ‘‘much of the explanation [for] the Inter-American human rights regime... lies in power, par- ticularly the dominant power of the United States.... [It] is probably best under- stood in these terms. The United States... exercised its hegemonic power to ensure its creation and support its operation.’’^11 John Ruggie uncharacteristically takes a similar line when he conjectures that human rights regimes will be weaker than nuclear nonproliferation regimes, because the former are of less concern to the core superpower security interests.^12 Kenneth Waltz asserts that powerful nations invari- ably seek to impose their views on other nations: ‘‘Like some earlier great powers, we [the United States] can identify the presumed duty of the rich and powerful to help others with our own beliefs... England claimed to bear the white man’s burden; France had its mission civilisatrice.... For countries at the top, this is predictable behavior.’’^13 Alison Brysk links acceptance of human rights norms to the pressure by
- Many analysts take the opposite view, namely that great powers tend to oppose strong human rights regimes. One might conjecture that large states have a commitment to sovereignty independent of the substantive issue at stake, or one might assume that great powers believe they can impose human rights on others unilaterally. This view is widely espoused as an explanation for the combined opposition during the 1950s of the United States, the United Kingdom, the USSR, and China to strong UN enforcement. Yet this consensus lacks theoretical underpinnings or empirical support beyond the casual impressions of a few participants. We shall see that the generalization is discon rmed by the case of the ECHR negotiations. Compare Samnøy 1993, 76.
- See Carr 1946; and Morgenthau 1960.
- See Donnelly 1986, 625, also 637–38; and Ruggie 1983, 99.
- Ruggie 1983, 104.
- Waltz 1979, 200. See also Krasner 1992.
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Such explanations rest, to that extent, on what used to be termed ‘‘utopian’’ or ‘‘ide- alist’’ foundations. The essence of such explanations lies in the prominence of ideal- istic or altruistic motivations for spreading liberal values.^15 Governments accept bind- ing international human rights norms because they are swayed by the overpowering ideological and normative appeal of the values that underlie them. ‘‘The seemingly inescapable ideological appeal of human rights in the postwar world,’’ writes Don- nelly, who espouses a wide range of theories, ‘‘is an important element in the rise of international human rights regimes.’’^16 Ideational arguments differ most fundamentally from realist arguments in their reliance on a distinctive conception of interstate interaction. They explicitly reject choice-theoretic foundations and instead stress the transformative power of norma- tive moral discourse itself. In this view, a critical characteristic of political action in this area is that it is ‘‘principled’’—that is, the altruistic and moral motives of actors have persuasive power in themselves.Accordingly, the most fundamental motivating force behind human rights regimes is not rational adaptation, let alone coercion, but transnational socialization—the ‘‘logic of appropriateness.’’^17 Many such explana- tions assert that transformations in actor identities occur though the impact of ‘‘prin- cipled’’ nongovernmental organizations (NGOs) on domestic and transnational opin- ion.^18 NGOs and publics within established democracies set up transnational networks, epistemic communities, and global discourses of human rights, dedicated to the ad- vancement of a normative discourse of human rights. This in turn mobilizes domestic and transnational civil society at home and abroad, eventually socializing foreign and domestic leaders.^19 Whence the ideological appeal of human rights? Some scholars look to human moral psychology, regional cultures, or salient historical events, but the most plau- sible explanation links support for international human rights protection to domestic democracy and commitment to the ‘‘rule of law.’’^20 In this view, which Thomas Risse terms ‘‘liberal constructivism,’’ established democratic governments seek to extend their domestic values abroad and recognize others who do so. The more democratic they are, the more likely their espousal of human rights values.^21 Charles Kupchan and Clifford Kupchan conjecture that ‘‘states willing to submit to the rule of law and civil society are more likely to submit to their analogues internationally.’’^22 Simi- larly, Kathryn Sikkink points to the leading role of established democracies in pro- moting human rights, such as linking Scandinavian support for human rights enforce-
- Keck and Sikkink 1998, chap. 1–3.
- Donnelly 1986, 638. On soft power, see Nye 1990.
- See Finnemore and Sikkink 1998; and Donnelly 1986.
- See Sikkink 1993; Risse-Kappen 1994; and Finnemore 1996.
- See, for example, Keck and Sikkink 1998; and Ramirez, Soysal and Shanahan 1997.
- Russett 1993. For alternative views, see Keck and Sikkink 1998; Sikkink 1993; Sieghart 1983, 26–27; and Ando 1992, 171–72. See also Donnelly 1986; Whit eld 1988, 31, also 28–31; and Drzem- czewski 1983, 220.
- See Risse-Kappen 1996; and Moravcsik 1997. This view is related to the ideational variant of democratic peace theory, in which the democratic peace results from the tendency of liberal governments to externalize their domestic ideals. See Russett 1993.
- Kupchan and Kupchan 1991, 115–16.
Human Rights Regimes Origins 223
ment to the salience of social democratic values in their domestic politics.^23 Thomas Franck asserts that compliance with international law is a function of the normative acceptance of international rules, which in turn re ects (among other things) their consistency with domestic values.^24 In sum, governments promote norms abroad because they are consistent with universal ideals to which they adhere; governments accept them at home because they are convinced doing so is ‘‘appropriate.’’ The desire to conform to shared ideas and norms of state behavior (‘‘collective expectations about proper behavior for a given identity’’), in this view, does not simply regulate state behavior, but constitutes and reconstitutes state identities.^25 Such theories explicitly distance themselves from explanationsthat rely on instrumen- tal calculations about the establishment of legitimate domestic governance.^26 Two leading ideational theorists explicitly reject, for example, the argument I shall intro- duce later—namely, that governments support human rights regimes to advance par- tisan and public interest in preventing domestic violence and interstate warfare. In a striking historical conjecture, these analysts assert that in the 1940s and 1950s gov- ernments could not possibly have sought human rights regimes to preserve the ‘‘demo- cratic peace’’ because such founding moments ‘‘came well before the emergence of the new social knowledge’’ that undemocratic regimes undermine peace—a collec- tive belief they date to research by liberal international relations theorists in the early 1980s, led by Michael Doyle.^27 As we shall soon see, this equation of ‘‘social knowl- edge’’ with academic political science misstates the true origins of human rights regimes because it underestimatesthe ability of nonacademics to generate a widely accepted, factu- ally grounded—and ultimately accurate—consensus about world politics.
The ‘‘New Orthodoxy’’: A Curious Convergence of Realism and Idealism
The study of human rights makes unlikely bedfellows. Although realist and ide- ational theories start from very different assumptions, their predictions about human rights tend to converge. Most existing analyses of human rights regimes rest on an uneasy synthesis of these two explanations. Realists cited earlier tend to argue that human rights norms are expressions of domestic values, not simply propagandistic justi cations for the pursuit of national security interests.^28 Ideational theorists rarely treat socialization (that is, transnational education, imitation, and fundamental norma-
- Sikkink 1993.
- Franck 1988.
- Jepperson, Wendt, and Katzenstein 1996, 54.
- Finnemore and Sikkink 1998. Thomas Risse has sought to take this further by drawing on Habermas- ian normative theory as a basis for positive analysis. See Risse 2000.
- Keck and Sikkink 1998, 203. See also fn. 68 and accompanying text in this article. Compare Helfer and Slaughter 1997, 331–35.
- Even if this were the case, the argument would not be entirely realist, since the claim that democratic governments are more likely to side with the West does not necessarily follow from realist theory. Even self-styled realists increasingly concede that societal preferences play an important, often determinant role in alliance formation. For a criticism of this type of realist degeneration, see Legro and Moravcsik 1999.
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domestic political institutions—in particular, the scope and bias of political represen- tation—on foreign policy. The most prominent among such theories include institu- tional explanations of the ‘‘democratic peace,’’ yet the family of republican liberal theories offers a far wider range of potential explanations, subsuming theories of the role of cartelized elites and independent militaries in provoking war, and of interest group capture (or the countervailing delegation of authority to strong executives) in foreign economic policy.^33 In contrast to the idealist theories considered earlier, which assume that social actors are responsive to external socialization and often altruisti- cally motivated, republican liberal theories assume that states are self-interested and rational in their pursuit of (varying) underlying national interests, which re ect in turn variation in the nature of domestic social pressures and representative institu- tions.^34 A useful republican liberal starting point for the problem at hand is to assume that international institutional commitments, like domestic institutional commitments, are self-interested means of ‘‘locking in’’ particular preferred domestic policies—at home and abroad—in the face of future political uncertainty. This presumption, which is not only consistent with republican liberalism but also draws on theories widely employed to explain domestic delegation to courts and regulatory authoritiesin Ameri- can and comparative politics, treats domestic politics as a game in which politicians compete to exercise public authority.^35 Terry Moe observes that ‘‘most political insti- tutions... arise out of a politics of structural choice in which the winners use their temporary hold on public authority to design new structures and impose them on the polity as a whole.... [Institutions are] weapons of coercion and redistribution... the structural means by which political winners pursue their own interests, often at the great expense of political losers.’’^36 Governments establish courts, administrative agencies, central banks, and other independent bodies as means by which the win-
ism—the strand of liberal theory based on the tendency to promote domestic provision of public goods (national identity, political institutions, and legitimate economic redistribution) preferred by domestic actors. (This differs from idealist theory in the minimal role it accords altruism or transnational socializa- tion.) On the ideational strand of liberal theory, see Moravcsik 1997; and Van Evera 1990. In American or comparative politics, such an explanation might be thought of as drawing on public choice theory, institu- tionalist theory, constitutional theory, the theory of delegation, or theories of nested games.
- For a discussion on the full range of potential liberal explanations, see Moravcsik 1997.
- Liberal international relations theories assume that states behave as rational, unitary actors in the pursuit of their underlying preferences, though not in the de nition of those preferences. Their theoretical distinctiveness lies in their consistent focus on variation in national preferences resulting from social pressures for particular material and ideational interests, as well as the way such interests are represented by state institutions. In this regard, institutional variants of democratic peace theory and theories of legis- lative-executive relations share common liberal theoretical assumptions. For an elaboration, see Moravcsik 1997; Doyle 1986; Russett 1993; Snyder 1991; Bailey, Goldstein, and Weingast 1997; Van Evera 1999; and Legro and Moravcsik 1999.
- Moe 1990.
- Ibid., 222, 213. In the domestic constitutional context, provisions are locked in by the fact that only a supermajority is typically able to amend it. Supermajorities bind subsequent majorities. The case we are analyzing here, like the case of administrative delegation, is more complex, since treaties are generally rati ed by majority, and the nondemocratic opponents are constrained not by their majority but by the extent of their coercive power. Pasquino 1998.
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ners of political con ict seek to commit the polity to preferred policies. From this perspective, a rational decision to delegate to an independent body requires that a sitting government weigh two crosscutting considerations: restricting government discretion and reducing domestic political uncertainty. Consider rst the surrender of national discretion, which in the international con- text might be termed the sovereignty cost of delegation to an international authority. All other things equal, governments in power prefer to maintain short-term discre- tion to shape collective behavior or redistribute wealth as they see t. They are therefore inherently skeptical of delegation to independent judges or officials, since there is always some ‘‘agency cost’’ to the operation of central banks, administrative agencies, courts, and other quasi-independentpolitical authorities. Judges, in particu- lar, may seek to negate government actions by nullifying them outright or by failing to enforce them effectively. Legal scholars William Landes and Richard Posner ob- serve that ‘‘the outcomes of the struggle can readily be nulli ed by unsympathetic judges—and why should judges be sympathetic to a process that simply rati es po- litical power rather than expresses principle?’’ They point to the sixty years preced- ing the New Deal in the United States, during which the federal judiciary obstructed reforms favored by Congress.^37 In the international realm, the defense of governmental discretion translates into the defense of national sovereignty. All other things equal, the ‘‘sovereignty cost’’ of delegating to an international judge is likely to be even greater than that of delegating to a domestic judge. One reason is that cross-national variation in the precise nature, scope, application, and enforcement of human rights is likely to be greater than domestic variation.Any common international list of human rights is therefore likely to diverge further from individual national traditions and practices. In the most ex- treme cases, for example, Great Britain, international human rights regimes intro- duce an explicitly enumerated bill of rights for the rst time. Many international human rights regimes establish, moreover, single, centralized institutional mecha- nisms for interpreting, enforcing, and balancing various rights. For such bodies to develop a coherent jurisprudence, they must override local particularities. Whereas judicially imposed harmonization may seem attractive to those who draft interna- tional covenants, it clearly imposes inconvenient constraints on individual national governments. Particularly for nations without a constitutional court—again, Britain is a striking example—the procedure marks a signi cant innovation.^38 These incon- veniences may arise, moreover, not simply as a result of pressure from parochial special interests or unthinking adherence to tradition, but also through divergence in deeply rooted historical conceptions of the relationship between citizens and the state. From this perspective, the defense of ‘‘national sovereignty’’ is, in part, a legiti- mate defense of national ideals, political culture, and even democratic practices—a
- See Landes and Posner 1975, 896; and Pasquino 1998, 49.
- Drzemczewski 1983, 11.
Human Rights Regimes Origins 227
tablished and potentially unstable democracies. Only where democracy is estab- lished but nondemocraticgroups (military officers, communists, fascists, and religious fun- damentalists, for example) pose real threats to its future is the reduction of political uncertainty likely to outweigh the inconvenience of supranational adjudication. It is obvious that opposition will come in part from dictatorships (or transitional regimes), since such governments both lack any interest in democracy and suffer particularly large inconveniencesfrom persistent challenges to their (nondemocratic) domestic order.^42 (Governments striving to complete a transition to democracy through extralegal means are likely to be almost as skeptical.) Less obvious and in striking contrast to realist and idealist accounts, however, is the prediction that dictatorships will be joined in opposition to binding commitments by well-established liberal de- mocracies. By accepting binding obligations, governments in established democra- cies incur an increased, if modest, risk of de facto nulli cation of domestic laws without a corresponding increase in the expected stability of domestic democracy, since the latter is already high. Such governments have good reason—indeed, a demo- cratically legitimate reason—to reject any reciprocal imposition of international ad- judication and enforcement of human rights claims. This is not to say that established democracies never have an incentive to support international human rights instruments. According to republican liberal theory, estab- lished democracies have an incentive to promote such arrangements for others— which may involve some small risk of future pressure on established democracies to deepen their commitment—in order to bolster the ‘‘democratic peace’’ by fostering democracy in neighboring countries.^43 This is most likely to occur when democrati- zation is expected to pacify a potentially threatening neighbor or solidify opposition to a common nondemocratic enemy. In such cases, established democracies can be expected to support rhetorical declarations in favor of human rights and regimes with optional enforcement that bind newly established democracies but exempt them- selves. Yet there is little reason to believe that this concern will outweigh domestic interests; thus they are likely to remain opposed to reciprocally enforceable rules.^44 Further observable implications concerning national tactics and con dential discus- sions are developed in the next section.
- Governments must of course have sufficient freedom at the current time to act—a point stressed by Moe. It would therefore be somewhat surprising to see a democratic government that requires nondemo- cratic means to stay in power—for example, a government under heavy military in uence or engaged in a civil war—take such a step. For this reason such transitional regimes—Greece in the immediate post– World War II period or Russia today are examples—may remain skeptical of enforceable commitments.
- Russett 1993. This argument is liberal rather than realist, since for realists the domestic governance of states should make no difference in the perception of threat, whereas for democratic peace theorists, it does.
- In theory, one might argue that the incomplete adherence of established democracies could be expected to undermine the international regime, which could in turn destabilize newly established democ- racies and thereby create threats to established democracies. Yet in practice the signaling function of international norms in any given country does not appear to depend on the adherence by others to enforce- ment clauses; certainly this conjecture seems to have played an unimportant role in British or European deliberations.
Human Rights Regimes Origins 229
Testing the Theories: The Negotiation of the ECHR
What light does the negotiating history of the ECHR cast on the power of these three competing theories? The negotiation of the ECHR took place between 1949 and 1953 under the auspices of the Council of Europe. At the rst session of the Council of Europe’s ConsultativeAssembly in September 1949, its legal committee under the chairmanship of the Frenchman Pierre-Henri Teitgen recommended that an organiza- tion be created to ensure adherence to human rights in Europe. Extended meetings of governmental committees and consultations with the assembly itself through the rst half of 1950 led to the signing of the ECHR, which came into force three years later. Realist, ideational, and liberal institutional theories all offer prima facie explana- tions for the general form and timing of the ECHR’s establishment. For realists, this period marked the dawning of an ‘‘American century’’ and a moment in which the West became embroiled in a bipolar con ict with the Soviet Union. For ideational theorists, it immediately followed the Holocaust, a salient historical event of consid- erable moral force, and occurred immediately after the rise to salient Western leader- ship of two long-established democratic exemplars, the United States and the United Kingdom.^45 During the immediate postwar period, republican liberals might observe, a wave of new liberal democracies emerged (or reemerged) across Western Europe. Nondemocratic institutions were widely viewed as a source of both World War II and the Cold War, and, accordingly, the democratization of Germany, Italy, and other West European nations was seen as a guarantee against both a revival of fascism and the spread of communism. To assess the relative importance of these three plausible theories, we therefore require more ne-grained evidence than a simple coincidence of timing or the exis- tence of occasional public rhetorical justi cation. I consider three types of evidence: the cross-national pattern of national positions, the process of international negotia- tion, and the direct documentary record of national motivations. What does the his- torical record reveal?
Cross-National Variation in National Preferences
We have seen that both realist and ideational theories predict that the most rmly established and committed democracies (or democratic great powers)—in short, the major Western powers led by the United States and the United Kingdom—would have been the primary supporters of binding international human rights norms. On the contrary, the historical record strongly supports the republican liberal theory, which predicts that newly established democracies will spearhead support for bind- ing internationalhuman rights guarantees, whereas long-establisheddemocracies will support only rhetorical or optional commitments—and even these only where needed to bolster the ‘‘democratic peace.’’ Dictatorships or governments that have not com- pleted the transition to democracy will be opposed outright.
- For a more solidly grounded view, see Helfer and Slaughter 1997, 331–35.
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those that were rmly established during the negotiations and remained so thereafter, but only since a point between 1920 and 1950: Austria, France, Italy, Iceland, Ire- land, and West Germany. The third category, ‘‘semidemocracies and dictatorships,’’ contains the two governments that were not fully democratic by 1950, because of civil war or internal repression (and did not remain so thereafter), namely Greece and Turkey. Spain and Portugal, though not involved in the negotiations, also belong in this category.^49 Turning to the ndings, we see little evidence of the positive correlation between support for binding regimes and power or length of democratic rule predicted by realist and idealist theory. Instead, we observe the inverse-U-shaped relationship between the stability of democracy and support for binding human rights commit- ments predicted by republican liberal theory. Table 2 summarizes the ndings. All six new democracies (plus one of the ten long-established democracies, Belgium) sup- port binding human rights guarantees. In contrast, six of the seven established democ- racies join the four transitional governments and nondemocracies in opposing one or both such guarantees (or, in the case of Luxembourg, abstaining). Even the sole exception, Belgium, is not fully discon rming, since Belgian representatives origi- nally sided with the other established democracies against binding guarantees, shift- ing their position only late in the negotiations.^50 The correlation is so strong that even recategorization of borderline cases—France and Turkey, say—would not under- mine the striking relationship. A number of ad hoc conjectures suggested by historians, legal academics, and common intuition about postwar European politics also fall by the wayside. Opposi- tion appears to be uncorrelated with the possession of colonies.^51 Among major colo- nial powers, Britain and the Netherlands are skeptics, whereas France and Belgium are supporters. Among countries without colonies, Germany and Italy are supporters, whereas the Scandinavian countries (Iceland excepted) are opponents. Opposition is similarly uncorrelated with the existence of a strong domestic tradi- tion of parliamentary sovereignty, as some analysts of Britain conjecture. Many strong supporters—France, Belgium, Italy, Germany, Austria, Iceland, and Ireland—shared an equally deep tradition of parliamentary sovereignty. Any imputation of causality from the correlation between postwar support for domestic judicial review and inter- national enforcement of human rights (say, in the cases of Italy, Germany, and Aus- tria), furthermore, is very likely to be spurious. Postwar Germany contemporane- ously adopted systems of constitutional judicial review, thereby shifting political weight away from a traditionally sovereign parliament toward a separation of powers involving an independent judiciary. In Italy, Christian Democrats fearing the advent of a Socialist-Communist majority placed a constitutional court in the postwar con- stitution. It is far more plausible that these countries adopted both domestic and international judicial review because of a strong desire to bolster the democratic
- For a further discussion of this coding, see the notes to Table 2.
- Council of Europe 1975, I/80–82, 88–90, III/254–56, but 268.
- This is the factor most often mentioned in the secondary literature.
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order, not that the inclusion of a constitutional court in the postwar constitution had immediate implications for the national position on the ECHR.^52 In sum, the estab- lishment of domestic constitutional review, like the establishment of international human rights guarantees, is a postauthoritarian phenomenon. National positions are uncorrelated with support for European federalism: the Netherlands and Luxem- bourg opposed mandatory enforcement, whereas Austria, Ireland, and Iceland fa- vored it. More consistent with the republican liberal view is the conjecture that both support for Europe (in this very early period, this meant support for the Council of Europe and the European Coal and Steel Community) and support for a binding ECHR re ect (in this period but not later) the in uence of a third factor—say, demo-
- See Ackerman 1997, 773; and Pasquino 1998, 39, 44–48. There is no evident correlation between support and the existence of civil or common-law traditions, or monist or dualist legal systems.
TABL E 2. Stability of democratic governance and national positions on the European Convention on Human Rights
Unstable or non-democracies ( stable democracy not yet clearly established by 1950 )
New democracies ( continuous democracy only since a date between 1920 and 1950 )
Established democracies ( continuous democracy since a date before 1920 )
Supports enforcement (individual petition and compulsory juris- diction mandatory)
— Austria, France, Italy, Iceland, Ireland, Germanyb
Belgiumc
Opposes enforcement (individual petition and/or compulsory jurisdiction optional or absent)
Greece,a^ Turkeya (Portugal,d^ Spaind^ )
— Denmark, Sweden, Netherlands, Norway, United Kingdom, Lux- embourge
aGreece and Turkey are characterized as unstable, whereas Austria, France, Italy, Iceland, Ireland, and Germany are characterized as new, because (1) it had been less than a year after conclusion of the bloody Greek civil war, and extra-legal measures were still in force; and (2) Greek and Turkish democ- racy were widely viewed as limited by the role of the military and incomplete judicial autonomy. It is also worth noting that both governments would subsequently slip back into dictatorship. This coding is consistent with the general literature on delegation, which notes that governments must have sufficient power to put institutions in place. Governments unable to rule by established democratic means belong in the nondemocratic category. bGermany, not yet a member of the Council of Europe, did not have voting rights, but participated actively in the negotiations. cBelgium initially hesitated, supporting the convention only with optional clauses, but then came to favor mandatory enforcement. dSpain and Portugal, both dictatorships, were not members of the Council of Europe. Yet, in striking contrast to Germany (also not a member), they showed little independent interest in participating infor- mally, nor were they invited to do so. eIn some cases, Luxembourg abstained on, rather than opposed, enforcement measures.
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ment offended neither side, because it was constrained to include only the least con- troversial among basic political and civil rights.^59
The Domestic and International Decision-making Process
Realism, ideational theory, and republican liberalism also generate distinctive predic- tions about the tactics likely to be most salient in interstate negotiations. Realist theory, with its stress on interstate power and deep con icts of interest, leads us to expect to observe attempts by great powers to coerce or bribe weaker states to change their policies. Ideational theory, by contrast, leads us to expect to observe attempts by governments or transnational groups in civil society to engage in transnational per- suasion. Such persuasion may suffice in itself or may be a prelude to subsequent coercive tactics. For liberal theorists, by contrast, there is little reason to expect governments to alter their views on fundamental issues such as the nature of consti- tutional adjudication in light of threats, promises, or normative persuasion by other democratic governments. The interest of established democracies in the stability of neighboring, less-established democracies is surely less intense than the domestic self-interest of new democracies; hence established democracies cannot easily be induced to accept domestic constraints in order to make the regime work—particu- larly when the option of creating optional enforcement mechanisms exists.^60 Published documents contain very little direct con rmation of either the realist or ideational predictions. No great power or long-standing democracy appears to have made threats or offered inducements to secure stronger commitments. The most im- portant powers engaged in Western Europe at the time, the United States and the United Kingdom, were respectively absent or opposed. Ideational theorists might point out that the ‘‘European Movement,’’ working through the Assembly of the Council of Europe, was engaged in transnational discussion and mobilization. Cer- tainly many leading advocates of the convention were European federalists and viewed the ECHR as a step toward European integration.^61 Yet there is little evidence that a shared transnational discourse in uenced the positions of parliamentary politicians in the assembly, let alone representatives of national governments. There is, we have seen, little correlation between national positions on the ECHR and positions on European integration. Indeed, we observe little shift in national positions at all, let alone in uence wielded by established democracies, as predicted by ideational theory. Although we cannot entirely exclude the possibility that subtle forces of transna- tional persuasion and mobilization played a modest role in organizing the forum for discussion, they were surely not decisive in de ning the positions of the participating governments.
- Teitgen 1988, 480.
- Liberal theory predicts that interstate bargaining outcomes are a function of the relative intensity of national preferences. Governments that strongly seek a particular cooperative outcome will concede more in order to achieve it. Moravcsik 1997.
- Some Jewish parliamentarians and law professors were also prominent and may have been in u- enced by their experiences and beliefs.
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Instead the preponderance of evidence concerning negotiating tactics con rms republican liberal predictions. Rather than seeking to coerce or persuade one another, or mobilizing groups in civil society, national governments conducted a classical international negotiation. Governments focused primarily on practical compromises that would assure that the system functioned to assure each state its preferred level of sovereign control. New institutions were modi ed to a compromise close to the low- est common denominator, with no government forced to accept immediate con- straints on its own policies signi cantly greater than those it ideally sought. Where there was discord, optional clauses afforded governments exibility. The real expla- nation of the outcome, as liberal theory predicts, lies in the pattern of underlying national preferences.
Domestic Deliberation and Public Justi cation
The nal type of evidence consists of the records of con dential deliberations and public justi cations by national decision-makers, drawn from debates in the Parlia- mentary Assembly of the Council of Europe, negotiating sessions among the national governments, and the documentary record of con dential deliberations in one critical country where such documents are available, namely the United Kingdom. What do these reveal? Let us begin by noting a salient fact. Not a single piece of documentary evidence in the sources I have been able to consult supports the realist prediction that govern- ments impose international human rights norms through threats of external coercion or inducement. At no point do we observe governments weighing the costs and ben- e ts of coercion, concerning themselves with the distribution of power capabilities, or mentioning foreign or military aid. There is slightly more evidence for the ideational view, but not enough to establish any con dence in its veracity. At most, NGOs and public opinion appear to have played a secondary, even insigni cant, role.^62 The rhetoric of politicians in the Euro- pean Assembly, as well as some interest groups, invoked moral considerations. Yet for the ideational theory to be con rmed, such statements must be designed to social- ize or persuade national governments by appealing to respect for human rights as an end in itself, rather than as an instrument to promote concrete ends of enduring interest to member governments—the prevention of tyranny, genocide, and aggres- sion. There is no evidence of this; positions, as we have seen, do not change. In Britain, we observe officials in occasional meetings with NGOs. A 1951 Colonial Office draft circular blandly recalled ‘‘in deciding to sign the Convention, His Majes- ty’s Government took into account the importance attached to it by public opinion both in and outside this country.’’^63 Yet, although NGOs were relatively well devel- oped in Britain (perhaps more so than anywhere else) and made salient contributions
- For a similar conclusion regarding the abolition of the slave trade, see Kaufman and Pape 1999.
- Marston 1993, 824. Some British officials attributed the support of other governments for a human rights court to their desire to assert the symbolic signi cance of the council vis-a`-vis the claims of Com- munist governments and parties. Marston 1993, 809.
236 International Organization
