Inter Human Rights Read

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John Peterson and Hugh Ward

Waltz, Kenneth N. (1979) neory of International Pol i tics. Reading, MA: Addison-Wes ley .Walt/., Kenneth N. (1993) The Emerging Structure of International Pol i tics,

htemational Securi ty lS(2): 4479.Ward, Hugh (1989) Testing the Waters: Taking Risks to Gain Reassurance in Publ ic

Goods Games , Journal of Confl ict Resolution 33(3): 278-308.Ward, Hugh (1994) Game Theory and the Pol i tics of Global Warming: The State ofPlay and Beyond , mimeo, Universi ty of Essex.

Wendt, Alexander (1992) Anarchy Is What States Make of It: The Social Con-struction of Power Pol i tics, Internationa l Organization 46(2): 391405.

Explaining International Human RightsRegimes: Liberal Theory and Western

EuropeANDREW MORAVCSIK

Harvard Universi ty

Under what conditions arc cffcctivc internat ional rcgimcs for thepromotion of human rights likely to emerge? Case studies of Europeaninstitut ions - the European Convention on Human Rights, theEuropean Community and the Conference on Security andCoopera tion in Europe - confirm h ypotheses more consistent withIibcral theories of internati onal relations th an their Institutionalist orRealist counterparts. The unique ly successf~~l mechanisms of theEuropea n regime, i n particular its fine-graincd system of individ ualpetition and supranatio nal judicia l review, function not by externalsanctions or reciprocity, but by shami ng and cooptin g domestic law-makers, judges and citizens, who pressure governments from within forcompliance. The evolution of these mechanisms presupposes theexistence of an autonomou s indepe ndent civil society and robustdomestic legal inst itutions and, cvcn in the relatively propitiouscircumstances of postwar Euro pe, required several generations toevolve. Such institutions appear to be, with only a few exceptions, mostsuccessful when they seek to harmonize and perfect respect for humanrights among nations tha t already effectively guarantee basic rights,rather than introducing human rights to new jurisdictions. Thosenations in which individ uals, groups or govcrnmcnts seek to improve orlegitim ate their own democratic practices benefit the most frominternational human rights regimes.

Under what conditions are effective international regimes for the promotionof human righ ts likely to emerge? The institutions of the European region -the European Convention on Human Rights, the European Communityand the Conference on Secu rity and Cooperation in Europe - constitutethe worlds most extensive and effective system of international institutionsdesigned for this purpose. What exp lains its unique, but uneven, le vel of

European Journal of International Relat ions 1995SAGE, London, Thousand Oaks, CA and New Delhi, Vol. l(2): 157-189.


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SUCCCSS? nder what conditions might simi lar institutions be successful lytransplanted to other regions, for example, Eastern Europe, the formerSoviet Union and the Western Hemisphere? This article seeks to answerthese questions by offering a detai led analysis of the procedures and recordof the major mul ti lateral European insti tutions for the promotion ofdemocracy and human rights, proposing hypotheses about the structuralcondi tions that have faci l itated their unique su ccess, and general izing thosehypotheseso human rights regimes m ore broadly.The theoretical analysis is grounded in the Liberal approach of inter-national relations and international law, which asserts that the mostfimdamental influence on international cooperation is not relative power, asReal ist theory asserts, nor the insti tutional ized contractual environment forstructuring international bargaining, as Insti tutional ist (sometimes termedneol iberal) theory m aintains. In the Liberal view, the most important factordefining the opportunities for and constra int on cooperation is the level ofconvergence of national preferences, which in turn reflect the demands ofthose domestic groups represented by the state (Burley, 1993a; Moravcsik,1992). Effec tive international regimes are l ikely to emerge only where theyhave deep roots in the functional demands of groups in domestic andtransnational society, as represented by the domestic pol i tical insti tutionsthat mediate between society and the state. Regimes foster compl iance wi thinternational norm s not by altering the external inc entives facing a unitarystate, but by al tering the domestic incentives facing societal groups andpol i ticians, thereby shi fting the domestic coal i tions that define state pref-erences.

A Liberal analysis of the European human rights regime suggests that thedistinctive insti tutional practices on which i ts remarkable record of successrest depend on the prior convergence of domestic practices and insti tutions.The unique mechanisms of the European system , in particular i ts finely-grained syst em of individual petition and supranational judicial review ,function not by external sanctions or reciproci ty, but by shaming andcoopting domestic law-makers, judges and ci tizens, who then pressuregovernments for compl iance. The decisive causal l inks l ie in civi l society:international pressure works when i t can work through free and influentialpublic opinion and an independent judiciary. T he fundam ental social,ideological and political conditions that give rise to active civil societie s andrepresentative pol i tical insti tutions, which in turn contribute decisively tothe extraordinari ly high rate of membership and compl iance enjoyed by theEuropean human rights regime, are distinctive to advanced industrialdemocracies.

Conventional theoretical treatm ents of international human rightsregimes, in which some countries are assumed to employ regimes toamel iorate major human rights abuses elsewhere or to impose their preferred

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ideology, miss the central dynam ic of the European system . The uniquelydeveloped international insti tutions and practices of human rights protectionin Europe - those elements that distinguish i t most clearly Tom other suchregimes throughout the world - are not designed to induce basicadherence to human rights on the part of i l liberal governments, whetherinside or outside European human rights regimes. Whi le the norms rati fiedby the Helsinki process may have encouraged dissident groups in EasternEurope and the promise of EC membership may have induced greaterattention to human rights in potential appl icant s tates, both consistent wi thLiberal theory, nei ther causal chain has been widely or consistently exploi tedto al ter government pol icies. Nor has the experience of European countriesin employing sanctions, diplomatic suasion and other tradi tional instrumentsof human rights diplomacy produced a particularly distinguished record ofsuccess.

The unique success of the West European system l ies not in thetransformation of undemocratic regimes, but in the improvement ofdemocratic ones. West European human rights regimes harmonize andperfect human rights and democracy among nations that al ready effectivelyguarantee basic rights, rather than introducing them to new si tuations. It isthose countries in which individuals, groups or governments wish to employinternational human rights regimes to strengthen their own democraticsystem s that benefi t the most from them. The most effective elements of theEuropean human rights sys tem are thus also the subtlest. This del icateprocess of legal harmonization proceeds slowly. Even where a cri tical mass offunctioning democracies exist, the international insti tutional mechanismsrequire - if the European case is a guide - several generations to becom ebroadly effective.

It fol lows that effective regimes on the European model are l ikely tospread only slowly to other regions. Constructing or improving simi larinsti tutions in other regions - whether in the Western Hemisphere, wheresuch a system already exists on paper, or the former Soviet Union and all butthe most advanced sections of Eastern Europe - is l ikely to have modestconsequences over the short- and medium-term. A brief analysis of currentpol icy in these regions confi rms this prediction. More appropriate to non-European settings, and perhaps also to much of Eastern Europe, are moretradi tional instruments, such as the Conference on Securi ty and Cooperationin Europe (CSCE) system . CSCE functions on an intergovernmental level ; i tis essential ly a formal ization of the sort of human rights moni toringprocedures that already exist through bilateral initiatives and the activitie s ofnon-governmental organizations. Whi le the formal ization of state-to-stateinteractions might be helpful elsewhere, i t is unl ikely to function signi ficantlymore effectively than current procedures, al though i t may do so somewhatmore consistently.

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This article is organized as fol lows. Section 1 argues that internationalregimes influence pol icy by al tering domestic constraints. Three pol icyinstruments of international democracy and human rights promotion aredistinguished, which I term samtinning, shamin. and cooptation. Eachemploys a distinct mechanism through which international pressure mayal ter the domestic calculations of governments regarding democracy andhuman rights: respectively, material , symbol ic and insti tutional means ofinfluence. Sections 24 examine the European insti tutions and practices forsanctioning, shaming and cooptation. The European Com munity (EC),Conference on Securi ty and Cooperation in Europe (CSCE ) and theCounci l of Europes European Convention on Human Rights (ECHR)system s are examined. Section 5 analyses the resul ts in light of Liberaltheories of international relations and suggests general hypotheses about theconditions under which international human rights regimes are likely tosucceed and fai l .

1. Sanctions, Sham in and Cooptation: Thee InternationalInstruments of Human R@bts ProtectionInternational actions to increase domestic protection for human rightssucceed only where they al ter the domestic calculations of governments.Setting aside the LW of mi l i tary force, which is not legally sanctioned by theEuropean human rights system , we can distinguish three internationalinstruments fi )r promoting democratization and domestic protection ofhuman rights: sanctioning, shaming and cooptation. Each takes the samebasic form: actions by foreign countries influence civi l society in the targetstate , leading to a shift in the coalitions or calculations that underliegovernment pol icy, sparking in turn a change of pol icy.

What di ffers across these three modes is the precise internationalinstrument that is employed and the resul ting transmission bel t throughcivi l society in the target sta te whereby external pressure shi fts the domesticincentives facing governments. Sanctions seek to promote democracy andrespect for human rights by l inking these goals to preferential internationaleconomic arrangements. Sanctions exploi t material power by denyingdomestic groups access to desired foreign goods and services, markets orcapi tal . Where the instrument is effective, the concern of domestic groupsfor their economic wel l -being leads them to influence the government,thereby shi fting the domestic pol i tical balance of power in favor of greaterprotection for human rights. Exam ples from the European system includethe l imi tation of imports to EC markets; restrictions on exports o f capi taland goods; the curtai lment of EC development aid; and the manipulation of

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bi lateral association agreements wi th, or the eventual m embership of,neighboring European count ries.

The second instrument, shaming, seeks to enforce individual human rightsand promote democracy by creating an international and domestic cl imateof opinion cri tical of national practices. Shaming exploi ts the symbol iclegitimac y of foreign pres sure and international institution s to unleashdomestic moral opprobrium (Lumsdaine, 1993, McElroy, 1992). Shamingis instigated through the dissemination of information and the promulgationof norms, as wel l as through the creation and exploi tation of internationalpractical insti tutions that enjoy domestic legi timacy. The domestic balanceof power shi fts in favor of the protection of human rights when thegovernment or the ci tizenry seeks to avoid undermining i ts reputation andlegi timacy at home or abroad. Examples ci ted below include the Counci l ofEuropes European Convention on Human Rights and various Conferenceon Securi ty and Cooperation in Europe (CSCE) agreements and insti tu-tions, which define and publ icize human rights violations.

The thi rd instrument, cooptation, seeks to enforce human rights andpromote democracy by coopting or reforming domestic pol i tical insti tutionsand legal system s in such a way as to shi ft the domestic balance of power infavor of human rights protection. Through direct l inks wi th internationalpolitical institution s and organized pressure fi-om international groups, thepurposes of semi-autonomous pol i tical el i tes can be influenced directly.Examples ci ted below include the efforts of the European Court of Justiceto coopt the domestic courts that request and enforce i ts judgments, and theslow process of incorporating the European Convention on Human Rightsinto domestic jurisprudence and statute.

2. SanctionsSanctions seek to promote human rights and democracy by l inking respectfor them to preferential economic relations. The threat to economicrelations aims to mobi l ize key societal groups against human rightsviolations, thereby shi fting the domestic balance of power in favor of greaterprotection for human rights. The only effective European organization forsanctioning, the EC, has a number of pol icy instrumen ts at i ts disposal . Fi rst,the EC can impose negative import, export or investment sanctions on thi rdcountr ies, gene rally organized b y the European Political Cooperation (EPC)mechanism. Second, i t can restrict foreign development assistance and tradepreferences under i ts Lomt: Convention arrangements wi th former Africanand Caribbean colonies. Third, it can manipulate the promise of bilateralassociation agreem ents wi th, and potential membership for, neighboringEuropean countries.

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The European Comm unity: Trade and Investment SanctionsEC countries possess a battery of varied and formal ly powerful legal meansto coordinate trade and investment sanctions in support of human rights anddemocratization, yet the record of successful action is modest. The dispari tybetween the open-endedness of potential means and the modesty of realaction suggests that the constraint l ies not in the lack of appropriateinsti tutions or organizations, but in the unwi l lingness of EC governments touse them. This conclusion is born out by a closer examination of ECactions.

The Treaty of Rome provides a number of legal instruments for theimposi tion of sanctions . Moreover, since nei ther the ECs foreign pol icycooperation procedure (EPC, now termed Common Foreign and Securi tyPol icy or CFSP) or the European Counci l , at which the heads of state andgovernment meet for quadrennial summ its, is di rectly l imi ted by ECcommercial law, governments may also coordinate any domestic legal orpolitical instrum ent of foreign po licy available to them . Decision s ab outsanctions could be taken by the Counci l ofMinisters of the EC, acting ei therthrough i ts normal trade policy procedures or through less formal EPC/CFSP procedures for foreign pol icy cooperation. In addi tion, heads of stateand government may agree to sanctions at meetings of the EuropeanCouncil - their regular quadrennial sum mits . Although all of theseprocedures require in practice a unanimous vote, the flexibil i ty for membergovernments is otherwise near total .3

Sanctions have been imposed, most often through EPC. Over the past 20years, EPC has moved incremental ly toward more coordinated foreignpolicy-m aking. A true consultation reflex has emerged , in which ECgovernments ini tial ly seek to establ ish a common posi tion wi th regard tomajor mul ti lateral issues.4 Yet this system has not LI P to now resul ted in theeffective use of sanctions in support of foreign pol icy goals, particularly incrisis si tuations.The record of the past decade i l lustrates the weakness of the ECcomm itment to coordinated sanctions (Hi l l , 1992: 145). In the Iranianhostage affai r of 1980, EPC was unable to impose effective sanctions onIran. In the Polish crisis of 1981, the EPC crisis mechanism spectacularlyfai led to function ; i t proved di fficul t to convene meetings and Greeceblocked the imposi tion of sanctions. In the Falklands/Malvinas crisis of1982, the member states of the EC imposed col lective sanctions onArgentina, but their renewal after the war began was cri ticized by Denmarkand opposed by Ireland, with its neutral and anti-British heritage, and Italy,wi th i ts close relations to Argentina. Unable to overcome the opposi tion ofthese two states, the EC process broke down, permitting Ireland and Italy topursue independent bilateral policies of breaking sanct ions, while the other

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governments, supportive of Bri tish pol icy from the beginning, maintainedthem in place. In response to the Israel i Invasion of Lebanon in 1982, theEPC advised the Commission to delay signing of the financial protocol of anew trade agreement. The EC reacted to nei ther the KAL 007 crisis nor theGrenada invasion o f 1984, with Greek dissent blocking action on theformer. Divergent posi tions on the Iraq crisis of 1990, w i th the Bri tishsupporting the USA and the French mediating, consigned col lectiveEuropean action to ineffectiveness, except where UN decisions tookprecedence. The imposi tion of l imi ted sanctions of China in response to theTiananmen Square massacre of 1989 consti tuted an isolated succ ess.

The European experience in targeting two countries is particularlyinstruct ive for judging the potential for sanctio ns in support of humanrights: Yugoslavia and South Africa. In the Yugoslav crisis of 1991, the ECplayed the role of mediator, but was not able to back up i ts actions wi thmore symbol ic economic sanctions, let alone military int ervention, untiljoint Western action was taken under the UN. Close analysis of Europeandecision-making suggests that the lack of coordination on the question ofwhether to accord diplomatic recogni tion to Croatia and the lack of strongmeas ures in other areas was due primarily to divergent opinions or theabsence of pol i tical wi l l on the part of major member states, not toinstitutional failure. To be sure, a unanimou s vote was required, but it wouldhave made l i tt le di fference i f the system had been reformed to permit acommitm ent to be made by a qual ified majori ty. At no point over the pastthree years was there a qual ified majori ty for stronger pol icies of sanctions orintervention (Steinberg, 1992). Moreover, i t is unclear whether successfulmul ti lateral sanctions would have made any di fference. Col lective Westernsanctions have subsequently devastated the Serbian economy, wi th meagrepolitical results.

South Africa is an even more instructive example, since there wa s themaximum possible ideological opposi tion to the domestic practices of atarget state - overt and formal racism being universally condemned in theinternational commun ity. Yet European governments proved very hesistantto levy expensive sanctions in support of human rights goals. On balance,sanctions may have had some cumulative, long-term effect in strengtheningwhi te opposi tion to apartheid in South Africa. But this analysis suggests that,wi th the possible exception of the investment ban, their effect was largelysymbol ic.

In the 1970s and 198Os, EC member states held strikingly di fferent viewson the proper response to apartheid in South Africa, with the UK andGermany interested primari ly in maintaining trade, whi le other memberstates were more supportive of sanctions in the service of pol i tical goals.Unti l 1977, EC pressure on South Af%ca to dismantle apartheid and providefor the economic l iberation of the black states was l imi ted to rhetoric. In

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1977, the EPC adopted a Code of Conduct for European fi rms doingbusines s in the region, which normalized labor relations betwe en Europeanfi rms and black South African workers. Being simply an attempt tocoordinate national policies, however, this lowest common denominatorpol icy was implemented unevenly acros s di fferent member states. From theperspective of scholars and human rights ac tivists al ike, i t was a fai lure: i tprevented the implementation of sanctions, protected EC business interestsin South Africa, and delayed anti -apartheih pressure for dis-investment(Holland, 1991: 186).

With popular presyure growing for a stronger pol icy, the EC Counci l ofMinisters in 1985 proposed joint ini tiatives, many of which had al ready beenimplemented by individual member states. In addition to the limitation ofcertain oi l exports to South A frica, these included: the end of exchange ofmi l i tary attach& wi th Pretoria; the termination of nuclear and mi l i tarycooperation, and of official contacts and international agreements in thesphere of securi ty; an embargo of EC exports of arms and parami l i taryequipment; and the discouraging of sporting and cul tural contact excep twhere these contribute towards the ending of apartheid. Yet the UK andGermany blocked any broadly appl icable mandatorv trade sanctions underEPC, rendering coordination ineffectua l and largily symbolic (Holland,1991: 1867).

1111986, wi th pressure increasing even more, the member governmentsacted through EPC to adopt trade and investment sanctions, banning amodest amount of imported i ron and steel from South Africa, prohibi tingthe import of krugerrands and l imi ting new EC direct investment in SouthAfrica. The latter provision was weak, exempting portfol io investments andremittable earnings from South African subsidaries. Trade sanctions wereimposed, but they affected only 3.5% of South African exports to Europe(Hol land, 1991: 187-9). Moreover, only the suspension of i ron and steelimports and the ban on krugerrands were actual ly implemented through ECregulations or decisions. The member states decl ined to give legal standingin the Treaty of Rome to other a ctions, instead employing EPC decisions tocoordinate national pol icies. The resul t was that the cost of defection wasconsiderably lower. With a thawing of the South African si tuation in 1990,for example, Bri tain uni lateral ly wi thdrew from the investment ban, a movethat Irish Foreign Minister Gerrard Col l ins declared tantamount to thedestruction of EPC. There was at no time a consensus for moving further(Collins c ited in Holland, 1991: 188).

It is at best unclear whether the strengthening of the EC in recent yearswi l l bolster i ts de facto abi l i ty to impose sanctions. The recent Maa strichtTreaty expands these powers, expl ici tly acknowledging a securi ty dimension,changing the name of the procedure to the Commo n Foreign and Securi tyPol icy (CFSP), and making provisions for member states to unanimously

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dictate that all secondary decisions concerning any single issue be made b yqual ified majori ty vote. It is di fficul t to see how these provisions would havemade a di fference in the case of ei ther South Africa or Yugoslavia. Thecompletion of the single market may limi t the abil i ty of states to imposebilateral sanctions on a target s tate, as did Denmark and Ireland on SouthAfrican agricul tural and coal products. Once such products are wi thin theEC, they wi l l be able to move anywhere wi thin i t, thereby evading bi lateralrestrictions. Whether this wi l l spur European governments to greatercooperation or undermine what little has been achieved remains t o beseen.

Aid to Less Developed Countries: The Lomi ConventionThe second form of economic sanctions contains restrictions on aid. TheLomC Convention provides non-reciprocal trade preferences for selectedAfrican, Caribbean and Paci fic (ACP) -ountries, mostly former colonies ofEC member states.* The Lomt Convention has proved to be a weak but nottotal ly ineffectual instrument for promoting democracy and human rights.The Lomt treaties contain no formal legal basis on which to hal t aid inresponse to human rights abuses; indeed, any such restriction would belegally questionable. Moreo ver, the pol i tical legi timacy of the LomCConvention in Africa rests to a large extent on i ts non-pol itical image, forwhich continuing aid to Ethiopia despite its dismal human rights record, isoften publ icly ci ted as an example. Official activi ties are l imi ted to actions ofthe ECs ACP-EEC bureau, which is permitted to examine cases of humanrights and to prepare genera1 reports (AC P-EEC, 1987: 131-2).

When the EC attempted a decade ago to insert a human rights clause inthe renegotiated Lomt C onvention, which would have permitted thesuspension of aid, the ACP countries uni fied in opposi tion. They argued thatthe Convention should be non-pol itical, that i t gives ACP states noreciprocal power to sanction the EC, and that human rights includeeconomic and development rights as wel l , which the EC systematical lyviolates. In response, the EC dropped i ts insistence on the clause and did noteven attach a uni lateral declaration to the final treaty. (Shortly thereafter, theEC and ACP reversed ideological roles over South Africa, against which thelatter demanded sanctions. This time the EC hid behind the apol i tical natureof the insti tution and the ACP cri ticized such distinctions.)7 The Objectivesand Principles of Cooperation section of the fourth Lomt Convention,signed in 1989, is more ambiguous, committing the signatories to twopotentially contradictory rhetorical goals - the defense of state sovereigntyand the protection of various human rights, including womens rights andproviding no explicit r ules and procedures for achieving either.

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Al though there is l i tt le formal role for human rights concerns in ECrelations wi th ACP countries, some observers of the LomC Conventiondetect the emergence of an informal set of three cri teria employed tocondition aid on human rights grounds . Aid is likely to be restricte d if (1)there is a particularly gross abuse of human rights; (2) a change of regime isforeseen in a relatively short time; and (3) the concerned state is not, l ikeZaire and Ethiopia, of major pol i tical interest. For example, aid to Ugandaand Equitorial Guinea in the 1970s was limited and rechanneled throughinternational chari table organizations. The EC Counci l of Ministers di rectedthat aid to Uganda be spent in such a way as to impede governmentoppression. Al though comm odity support (STABEX) transfers continued,presumably because they were of interest to EC fi rms, food aid was restrictedand only 5% of the indicative aid program that had been committed wasactual ly disbursed. Aid was restored after the fal l of Amins regime. There isno evidence, however, that sanctions helped to undermine the Amin regime(Lister, 1988: 197).

The EC and Democratizing European Countries: Aid, Association andMembershipThe EC has long employed a thi rd form of economic sanction - aid,association and membership agreements wi th neighboring European gov-ernments - as a means of encouraging humans rights and democratization.Here, c ommitm ent to a basic principle has been clearly established: theEuropean heads of state and government, meeting at the Lisbon EuropeanCounci l of September 1992, reiterated the importance of ini tiatives givingactive support to countries which introduced democracy, enhanced humanrights and promoted good governance (Commission, 1993: 366-7). Inpractice, a comm itment to l iberal governance has faci l i tated the negotiationof bi lateral aid or association agreements wi th the EC. Democraticgovernment is also an expl ici t precondi tion for membership in the EC. Yetthe effectiveness of these measures remains unclear.

This policy has been consistently appl ied. In 1962, Spain appl ied for anassociation agreement wi th the EC, which would have provided forpreferential trade arrangements and economic aid. The EC response fel l farbelow Spanish desires and expectations. The ECs acceptance of theappl ication was ini tial ly blocked by pressure from Spanish dissidents, insideand outside of Spain, and the opposi tion of Denmark and the Netherlands.At the same time, the European Parl iaments Birkelbach Report cal led fordemocratic condi tionali ty for association agreements. (French and Ital ianfarmers were also concerned about possible economic competi tion, butGeneral de Gaulle appears nonetheless to have supported the application.)Only a linkage with the similar application from Israel led to the signing of

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an agreement wi th Spain in 1970 - eight years later. Not only were theterms of the agreement disappointing to Spain, but the agreement wasdel iberately signed for only six years, after which i t would be up forrenegotiation and during which tim e the political issues might arise again(Tsoukal is, 1981: 76-7).

In the mid-1970s, when Spain and Portugal began to democratize,European aid was discretely employed to assist the process. EuropeanInvestmen t Bank (EIB) loans were targeted to prop up centrist parties inPortugal (Hi l l , 1992: 140). The history of relations between the EC andMedi terranean countries, in addi tion to the expl ici t requirement thatmember states be democratic, led many among Spanish, Portuguese andGreek el i tes and publ ics to view EC membership and democratization asmutual ly reinforcing. In each country, the preservation of democracy was astrong argument for accession; the desire to be a member of a regionaleconomic, cul tural and pol i tical union was a strong argument for democracy.Membership in the EC was seen as a means of combating radical left-wingor separatist pressures, as wel l as reducing the probabi l ity of a mi l i tary coup.In Portugal i t was a cornerstone of the anti -communist al l iance; in Spaina bulwark against subnational regionalism (Tsoukal is, 1981: 110, 117,123).*

The EC has more recently fol lowed a simi lar pattern wi th respect todemocratizing countries in Central and Eastern Europe. In early 1990, theEC began to explore the possibi l ity of association agreements wi th Poland,Czechoslovakia, Hungary, Bulgaria and Romania. From the beginning,these agreements were linked to compl iance wi th the principles ofdemocracy and economic l iberalization. . . .They were to contain sections onpol i tical dialogue, free trade and freedom of movem ent, economic, financialand cul tural cooperation, as wel l as democratic insti tutions (Commission,1991: 267ff.). Al l transi tional agreements, much l ike the trade and eco-nomic cooperation agreements signed at the same time with Argentina andChi le, contain c ommon understandings that the agreements are based onrespect for democratic principles and human rights. In the East Europeancases the transi tion to a market economy is also speci fied as a basiccondi tion underlying the agreement (Commission, 1991: 356).

There is some evidence that conditional ity is actual ly imposed, though notconsistently. In 1990, agreements were signed wi th al l countries exceptRomania, where a poor human rights record led EC countries to l imi t aid tohumani tarian assistance. In December, however, a trade and cooperationagreement was signed wi th the USSR, al though the human rights si tuationwas not fully clarified. So-called Europe Agreem ents were signed inDecember 1991 wi th the three Visegrad countries: Poland, Hungary andthe Czech and Slovak Federal Republ ic. These agreements, whi le short offul l association agreements, supersede previous trade and cooperation

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agrmmm . In I992 the negotiation of simi lar agreements wi th Romaniaand Bulgaria were authorized , but the Bulgarian negotiations went slowly ,perhaps because of the uncertain human rights si tuation. On the whole,despi te successful democratic transi tions in many countries, the EastEuropeans were disappointed by the eventual association agreements, whichreflected considerable protectionist pressure in Western Europe.

Sanctions and the European C omm unity: A BalanceThe EC is the major European insti tution able to employ aid, export andimport sanctions as an instrument of pol icy. On balance, i t appears that thewidespread desire to maintain close econo mic and political re lations withtrading partners and former colonies, as wel l as the lack of catalyzingpol i tical change in the ACP states, has l imi ted the ECs systematic use ofsanctions or foreign aid restrictions as an instrument for the promotion ofhuman rights outside the European continent. Among neighboring Euro-pean states, the domestic pol i tical consequences of manipulating aid,association and accession agreements are more di fficul t to assess. Theexistence of the EC appears to act as a magnet, leading to a measure ofanticipatory adaption by neighboring countr ies, as evidenced by EasternEurope (Haggard et al ., 1993: 173-95). On the other hand, this may reflectunreal istic expectations about the speed and thoroughness wi th which theEC is prepared to offer membership and association. To be effective, the useof aid, association and accession appears to require a democratizinggovernm ent and strong bilateral support fro m individual European coun-tries. In Spain, for example, the slow negotiation of association and thepromise of accession did not undermine the Franc0 regime, nor dissuade thearmy from attempting a coup, but i t may have assisted on the margin tobolster democratic forces once the transi tion was underway.

3. ShamingShaming, the second mechanism through which international pressure mayinfluence dramatic developments, seeks to enforce individual human rightsand promote democracy by creating a domestic and international cl imate ofopinion cri tical of national practices, thus shi fting the domestic balance ofpower in the target state toward the protection of human rights. Shamingoperates by manipulating information about, and according ideologicallegi timacy to, certain d omestic practices of states. The two most strikingexamples of European system s for promoting human rights and democra-tization through shaming are the Counci l of Europes EuropeanConvention on Human Rights and the various documents and insti tutionsemerging from the CSCE process.

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The Counci l of Europe and the European Convention on Human R&hThe most important and effective multi lateral insti tution concerned wi th theprotection of human rights wi thin Europe is the Counci l of Europe, underwhose auspices the European Convention for the Protection of HumanRights and Fundamental Freedoms was drafted and signed in 1949-50. TheECHR system has been termed the publ ic order of Europe (Frowein,1992).

In the immediate post-World War II period, heads of government andnon-governmental organizations, mindful of the recent past, pressed for thecreation of a regional human rights regime. Particularly influential was theInternational Comm ittee of Movem ents for European Uni ty, which cal leda pan-European Congress in 1948. In i ts Message to Europeans, theCongress cal led, among other things, for a character of human rightsenforced by a supranational court. In response, the European Conventionwas signed in 1950, entering into force in 1953. The ECHR has 23signatories . Beginning with Hungar y in 1990, East European countries arenow becoming members (Sikkink, 1993: 144-9).Unl ike the Uni ted Nations Universal Declaration, the European Conven-tion on Human Rights is l imi ted to civic and pol i tical rights. It l ists therights to life, l iberty and secur ity of person; the right to a fair trial; freedo mfrom retroactive laws, torture, slavery and servi tude; freedom of thought,conscience, rel igion, expression and assembly; and the right to privacy andfami ly l i fe, as wel l as to marry and found a fami ly. A number of other rights,controversial for various reasons during the founding conference, areenumerated in protocols. These include the right to peaceful enjoyment ofones possessions; to education; to free elections; to l iberty of movemen tand choice of residence; a ban on the death penal ty in peacetime; the rightto review of criminal sentences; the right to be free of the threat ofexpulsion; and protection against double jeopardy. The ECHR system doesnot extend to most social and economic rights, about which there is l i tt leconsensus (Wei ler, 1986: 1113). The Counci l of Europe did also sponsor aSocial Charter - drafted between 1955 and 1958, s igned in 1961 and inforce as of 1965 - which recognizes the rights to work, to organize, tocol lective bargaining, to social securi ty, to social and medical care, toprotection of the fami ly and to protection of migrant workers.

The basic task of the organization, however, is soft law standard-setting,rather than adjudication or enforcement. Comm ittees of independentexperts report on the si tuation across Europe or in speci fic countries. Theirrecommendations are subsequently approved or rejected by an inter-governmental Comm ittee of Ministers, voting by a two-thi rds majori ty(Archer, 1990: 49).

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The ECHR employs a subtle but effective insti tutional apparatus topromote compl iance. According to the Convention, the enumerated rightsarc to be enforced through a system consisting of a commission and a courtof human rights. It is unique among European human rights instruments incombining two provisions to promote cffectivc enforcement by thesebodies: the individual right of petition and compu lsory jurisdiction for theinternational court (Robertso n and Merril l, 1993: 2SO ff.).

The system functions as fol lows. Individuals or governments may peti tionthe Commission for consideration of speci fic claims that human rights havebeen violated. Since governments tend to shy away from pursuing humanrights claims, individual peti tions, rather than state-to-state complaints, havecontributed the mos t to the developm ent of an international legal order.Unl ike the EC (see below), whose court general ly considers cases referred bynational courts, individuals may submit peti tions di rectly to the Commis-sions, a body elected by national representatives to the Counci l of Europe,rather than to national courts. Th is clause generated controversy during thedrafting and was subseq uently described as a remarkable innovation ininternational law (Mower, 1991: 91). Article 26 permits the Commission totake up individual peti tions only when domestic remedies have beenexhausted; they can be nei ther anonymous nor destructive of human rights.The Commission may also conduct i ts own fiu-ther investigation, whichmember states are required to assist. If the Commission determines that aviolation of human rights may have taken place, and subsequent attempts toreach a friendly settlement fai l , the Commission may issue a report andrefer the case to the Committee of Ministers, which votes by two-thi rdsmajori ty on the case or, as occurs in most cases that are declared admissible,refers i t to a court of human rights for a final judgment.

What sanction does the Committee have in response to non-compl iance?There are only two. Fi rst, the Committee may dictate that the Commissionreport be published. While t his may initially have been considered aneffective sanction, today whatever force lay in this threat has now been lost ,because nearly al l the Commissions reports are publ ished anyway (Mower,1991: 98-9). Today the desire of responsible governments not to be seen tobe repudiating their human rights obligations is . . norma lly all that isneeded (Robe rtson and Merril l, 1993: 328). The second sanction isexpulsion, which has only arisen as a possibi l ity in the Greek case of 1969,described below.

Despi te i ts lack of overt compl iance mechanisms, the ECHR system isgenerally considered to be highly effective at securing compl iance. Between1953 and the end of 1990, the Commission received 15,457 peti tions,nearly all from individuals. Of these, 14,636 w ere declared inadmissible, 96resul ted in a friendly settlement, 430 resul ted in a report by the Commission

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and 251 court decisions were handed down (Frowein, 1992: 227). Thelarge number of inadmissible peti tions resul ts from the stringent set ofcri teria that complaints must meet. Mo st were struck because al l domesticremedies had not been exhausted; others did not present a primafacie caseof violation of a right guarantee d under the Conven tion or were submittedanonymously (Robertson and Merri l l, 1993: 273). Non-compl iance isexceptional . Insiders estimate that 75% of the member states display ahigh degree of cooperation with decisions and 25% a moderate degree(Mower, 1991: 20). The ECHR system required a long period to achievethis level of effectiveness. Unti l 1973, the ECHR had l i tt le effect on thelegal order of member states; the next decade was a transi tional period. Inthe 198Os, however, the ECHR system began to develop extensiveEuropean consti tutional case law (Frowein, 1992: 357). D ue to the greaterknowledge about the system and i ts increasing geographical scope, there hasbeen an exponential growth in the number of petitions, with th e greatmajori ty being submitted in the 1980s. Before 1973, less than a dozen cas esannually were declared admissible and there was an average o f only onecourt decision; this figure has more than tripled over the past decade(Yearbook, various years).

The delay in the evolution of the ECH R legal order to its current level ofeffectiveness is explained by the fact that rati fication of the instrument andadherence to various o f i ts speci fic provisions is voluntary. Only recently hasthe near universal recognition of the individual right of petition and bindingjurisdiction created the pol i tical precondi tions for the Commission to adopta more aggressive strategy in referring cases to the court - contributing tothe effectiveness of the organization and the current rapid increase in i tscaseload. Up to that point, the Commission was inhibi ted by the fear thatstrong enforcement would dissuade governments from strengthening theircomm itment to the regime.

In order to become a ful l legal participant, governments must rati fy theECH R; recognize individual p etitions and comp ulsory jurisdiction of thecourt, both ofwhich are optional; and decl ine to take reservations to speci ficrights enumerated in the ECHR Most major European countries, includingTurkey, rati fied the ECHR in the 195Os, but some, including France,Switzerland and the Iberian countr ies, did not do so until th e mid-1970 s.Widesprea d recognition of individual petitions under Article 25 was delayedfor decades. For historical reasons, Germany and a handful of othercountries recognized i t immediately. The UK, however, did not permitindividual petitions until 1966 , Italy not until 1973 and France only in1981. By 1991, only Mal ta and Cyprus had not recognized this right.Finally, voluntary recognition of the binding jurisdiction of the Court ha sbeen similarly slow to emerge , although it is now nearly univers al. Finally,

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signatories have taken reservations concerning speci fic protocols and provi-sions of the ECHR , which continue to undercut the uni formity ofprotection.12

Where flagrant, system atic violations of the convention occur and judicialremedies are ineffective, the only recourse under the ECHR is to fi le a state-to-state complaint or to demand expulsion. There are substantial variationsin the wi l l ingness of governments to fi le state-to-state complaints againstflagrant violators of the ECHR when i t is not di rectly in their interest to doso. There are two suc h cases, involving many of the same states. In 1967,Denmark, Sweden, Norway and the Netherlands fi led a peti tion under theECHR against the mi l i tary government of Greece. An investigation wasconducted and Greece wi thdrew from the Counci l of Europe to avoidexpulsion; i t was invi ted to return only wi th the re-establ ishment ofdemocracy in 1974 (S&ink, 1993: 149-50). In 1982, these four countrieswere joined by Franc e, a traditional defender of Greek in teres ts, in fil ing asimi lar peti tion against Turkey. In response, T urkey modi fied i ts behaviorslightly and accep ted individual right of petition. Ireland and Austria h avebrought state-to-state peti tions for more transparently sel f-interested reasons(Frowein, 1992: 283-5ff.). Other state s have been reticent to promote orcontribute to mul ti lateral enforcement. These cases suggest that the ECHRsystem does not provide an effective infrastructure to defend generalguarantees of basic human rights.

The subtlety and del icacy of the ECHRs domestic mechanisms forenforcement of human rights are grounded not just in consensus, but in theworkings of national legal and legislative system s. From a purely legalperspective, the emergence of the ECHR system might best be seen as oneelemen t in a broader proces s of expanding constitutio nal judicial review topol i tical system s that had never ti l ly practiced i t, including the UK, mos t ofScandinavia and Benelux, and, to an extent, France (Frowein, 1992: 357;Stone, 1992). This helps explain wh y citizens of countries wi th strongconsti tutional protections and domestic judicial review, such as Germanyand Italy, tend to bring proportionately fewer complaints. In such countries,ECHR norms have been incorporated into the basic legal structure throughjudicial action or legislative revision (both independently and as a consc iousresponse to international norms); domestic courts provide adequate defenseof such norm s.13 (This is true, as we shall see below, of the EuropeanComm unity legal system as wel l .) Those domestic legal orders with nojudicial review for fundamental human rights have brought more cases and,in general , more important ones. A number of controversial cases have beenbrought against the UK, for example, chal lenging non-enforcement ofgender w age equality in the workpla ce and practic es of detaining prisoners inNorthern Ireland (Frowein, 1992: 278).

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The ECHR is best seen as an instrument to perfect and harmonize pre-existing human rights guarantees, rather than to extend basic guarantees.Since it is dependent on dom estic public o pinion, legal legitimac y andlegislative authori ty as tools to induce voluntary compl iance throughshaming, i ts unique level of compl iance and effectiveness rel ies uponunderlying socioeconomic and pol i tical factors, most notably an el i te orpopular consensus in favor of human rights, adequate protection forindividuals who voice their opinions or raise complaints under the system ,and insti tutions to transmit that consensus to pol icy-makers. Where suchunderlying precondi tions are absent, these domestic mechanisms to transmitnorms break down. In such cases, shaming must be transmitted by moretradi tional , state-centred diplomacy, to which we now turn.

The Conference on Securi ty and Cooperation in EuropeThe Conference on Securi ty and Cooperation in Europe (CSCE) grew outof pan-European East-West negotiations during the 1970s - the so-cal ledHelsinki process. The geographical scope of the CSCE proce ss is unique; i tis the only regional human rights organization wi th members across theEuropean continent. CSCE meetings at Helsinki (1975), Belgrade (1977),Madrid (1980), Stockholm (1984), Vienna (1986-9) and Copenhagen(1991) have generated a series of international agreements on human rights.An expanding set of individual and collective rights have been codified inincreasingly concrete and practical language. In recent years, fol lowing thedemocratization of Central and Eastern Europe, the system has beenstrengthened considerably. The Vienna Concluding Documen t, negotiatedbetween 1986 and 1989, moved far beyond the Helsinki Accord andMadrid Docume nt. It enlarged commitm ents to the individual s right toknow, as wel l as protections against arbitrary arrest, degrading treatment,harsh detention and torture. It was particularly detai led on freedom ofrel igion, and comm itments to the freedom of movemen t have beenstrengthened. On the other hand, i t remains weak on various areas whereconsensus was elusive, including capi tal punishment, compulsory mi l i taryservice, and visa pol icies (Buergenthal, 1992: 186-8; Bloed, 1991: 72-3).

The Charter of Paris for a New Europe, adopted at the November 1991CSCE summ it, mo ves further: not simply reaffi rming support for humanrights, democracy and the rule of law, but also seeking the protection of theethnic, c ultural, l ingu istic and religious identity of national minoritieswi thout any discrimination (Commission, 1991: 356). Al though incom-plete and careful ly worded, these guarantees of minori ty rights areunparalleled in international treaties for their detail and thorough ness intreating this sensi tive issue. Among other things, CSCE recognizes the right

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to be a member of a minori ty group and to unimpeded contact wi thmembers in other countries (Bloed, 1991: 67-9).14

As pol i tical agreements, rather than treaties, CSCE accords are not legal lybinding, international ly or domestical ly. The language of CSCE agreementsconsistently distinguishes between CSCE commitments and internationallaw obl igations. Under international law, CSCE comm itments becomebinding as customary law only if participating states come to treat them assuch (Buergenthal, 1992: 2OOff.). Nonetheless, CSCE accords can influencestate behavior in two ways. Fi rst, the shaming process ma y create a sym-bol ic environment that stimulates d omestic opposi tion in non-complyinggovernments. The publ ication of the Helsinki Accord, wi th i ts provisionguaranteeing the right o f the individual to know and act upon his rights andduties , had a dramatic and unexpected impact in various countries behindthe Iron Curtain. It served as a focal point, stimulating the formation ofHelsinki g roups throughou t Eastern Europe (Buergentha l, 1992: 177).Whereas the major pressure for the recogni tion of rel igious rights in EasternEurope clearly came from internal democratization, the CSCE is credi ted bysome wi th offering a focal point, source of legal language and provisions forlegal reforms (Luchterhand, 1991: 162-6).

Second, the CSCE contains exten sive procedures for informationexchange and intergovernmental consul tation, developed mostly in recentyears. The Vienna and Copenhagen meetings establ ished a four-stepprocedure for formal izing interstate human rights grievances, which ampl i -fies the effectiveness of shaming. In step one, a state may address, to anyother state, a request for information about domestic human rightsprotection. The request m ust be answered in wri ting wi thin four weeks. Ifthe fi rst state is not satisfied wi th the information, i t may move to step twoby requesting a bi lateral meeting, the agenda of which is l imi ted to theoriginal claim. If i t sti l l remains unsatisfied, i t may elect to move to step threeby contacting other states about the case. If the issue remains unresolved,step four permits states to voice their disagreements in a forum attended byal l member states (Buergenthal, 1992: 199).

In addi tion, CSCE has recently created common insti tutions for informa-tion gathering. The CSCEs Office for Democratic Insti tutions and HumanRights, based in Warsaw, has recently been enhanced to make i t the maininsti tution of the human dimension of CSCE, in di rect competi tion wi ththe Counci l of Europes activi ties. (The shi ft from i ts former name, theOffice of Free Elections , suggests a deepening of the conception ofminimum democratic insti tutions; see McGoldrick, 1993: 423, 431.) Thisorganization arranges missions, acts as a clearing house for information, andreviews implementation of CSCE comm itments. Missions can be sentwi thout the agreement of the state concerned. Simi larly, the CSCE hascreated a High Com missioner on National Minori ties, which may col lect

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information, issue early warnings and, wi th proper authorization, consul twi th parties to potential confl icts. EC countries, acting together, havestrongly supported these changes.

By exchanging and publ icizing information, and by forcing hum an rightsonto the domestic and international agenda of governments, the CSCEstructures the international and domestic shaming processes to maximumeffect. Th is system rel ies upon the consensus of i ts members, but the level ofdomestic convergence required is lower than that required by the Conven-tion system . It is di fficul t to assess the level of compliance wi th the CSCEsystem . Whi le i ts early role as a focal point is striking, there is l i tt le evidencethat i ts subsequent actions have had simi lar consequences.

The European Comm unity and ShamingBy comparison to CSCE and the Counci l of Europe, EC insti tutions forshaming are less wel l -developed. The European Parl iament and EuropeanPolitical Cooperation are active rhetorically, generating unilateral stat eme ntsof regret and rebuke concerning international human rights abuses, butunl ike the ECHR and CSCE system s, the EC procedures do not obl igeinvolvement or response from foreign go vernments. Each year, the ECmakes over one hundred behind-the-scenes representations, as wel l asissuing over one hundred publ ic statements concerning human rights abusesoutside of the EC, mostly through EPC (Commission, 1993: 368). TheEuropean Parl iament also engages in promotional activi ties. In 1977, forexample, the Parl iament joined wi th Latin American counterparts inadopting Interparl iamentary Conference resolutions denouncing the hardand oppressive condi tions and the lack of basic freedoms in Latin America(Mower, 1980: 58-9). It issues numerous resolutions of concern and hasrecently adopted resolutions in connection wi th the financial protocols wi thcertain (non-member) Medi terranean countries (Commission, 1993: 369).The European Parl iament has often cal led for a greater insti tutionalcomm itment to human rights. In response, the Commission proposed in1990 that the EC accede to the European Convention (Commission, 1991:354).

4. Institutional CooptationCooptation, the thi rd mechanism discussed in this article, seeks to promoteinternational human rights by coopting domestic pol i tical insti tutions,particularly courts and legislatures, in such a way as to shi ft the domesticbalance of power in favor of human rights protection. As we have seen, someof the international instruments examined above have subtle effects of this

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kind. The European Convention on Human Rights, for example, encour-ages legislatures and courts to incorporate international norms into domesticstatutes and jurisprudence. Yet the most impressive case of insti tutionalcooptation is surely the human rights protection afforded by the ECssupranational court, the European Court of Justice (ECJ). The ECJ hasestabl ished a transnational legal order by coopting domestic courts - and,through them , tacitly coopting individual litigants - into supportingEuropean law. The resul t is the worlds most effective supranational legalsystem . Among the principles of EC jurisprudence is the protection ofindividual human rights (Burley and Mat tli, 1993).

The Treaty of Rome, which founded the EC, contains no l ist of protectedindividual freedom s equivalent to a bill of rights (Metropoulos , 1992). Itenumerates only rights connected wi th the formation of an internal market:discrimination on the basis of nationality (Art. 7) and limitations on the free moveme nt of workers (Art. 48). Further protections seemed unneces-sary, given pre-existing protections by national courts and through theCouncil of Europe.

Today, however, the ECJ doctrinal ly defends basic human rights. Thisshi ft occurred as the result of a bargain between the ECJ and nationalconsti tutional courts. To understand this bargain, i t is essential first tounderstand the pol i tical process by which i t was possible for the ECJ toexpand the importance of EC law in general (Burley and Mattl i , 1993).According to the Treaty of Rome, cases can come to the ECJ in a numberof di fferent ways: the Comm ission of the EC can bring cases againstindividual states; states can bring cases against one another; and certainindividuals can bring cas es of direct and individual concern .

Yet few important cases reached the ECJ in these ways. The primary,though largely unforeseen, instrument of EC legal integration has beeninstead Article 177 of the Treaty of Rome, which permits national courts torefer cases involving European law to the ECJ for a prel iminary rul ing. If thenational court is the court of final appeal, it is now required to do so,according to European jurisprudence. The acceptance by national courts ofthe doctrines of the supremacy of EC law over national law and directeffect (the binding nature o f EC law even where appropriate nationalimpleme nting legislation has not been passed ), gave individuals the opportu-ni ty to employ national courts to chal lenge national statutes and practicesthat confl ict wi th EC law. The vast majori ty of ECJ cases reach the court inthis way. Hence EC legal integration depends on a taci t al liance amongthe ECJ and two types of domestic pol i tical actors: individual l i t igants, whoci te EC law, and national courts, which refer cases to the ECJ andincorporate ECJ rul ings into their own judgments, which are then enforcedthrough national procedures. It is on the basis of this taci t bargain that legalintegration of the EC has taken place (Burley and Mattl i , 1993).

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As the ECJ established supremacy and direct e ffect in the 196Os, somenational courts - notably the consti tutional courts of Germany and Italy,which practice d judicial review and were bound to defend e xplicitlyenumerated individual freedoms - responded by declaring that they wouldnot recognize European law where i t clashed wi th the fundamentalprovisions of domestic consti tutional law, including the protection ofindividual rights. In particular, the national cons titutional court s noted thelack of expl ici t human rights guarantees in the Treaty of Rome.

The ECJ responded to this chal lenge to i ts autonomy in adjudicatingconfl icts concerning European law - which posed a simul taneous and morefundamental chal lenge to the uni formity and supremacy of the Europeanlegal system - by reading protection of fLndamenta1 rights into the basiclaw of the EC. In doing so, the ECJ recognized as a source not just theTreaty of Rome, but also consti tutional principles common to the memberstates and international treaties . of which they are signatories, the latterincluding the ECHR (Metropoulos, 1992: 136).16 This effort was backed byan EC declaration recognizing the European Convention, though E Cmembership in i t has been blocked. The link to the ECHR , which providesmuch o f the guidance for the resolution of human rights questions, helpsintegrate the European system as a whole (Wei ler, 1991: 1135).

The ECJs recogni tion of human rights led national courts to accept, atleast provisionally, i ts judgments in this area. The ECJ was further able tomove in the di rection of US-style federal incorporation, whereby US federal(in this case, European) courts can oversee state (member state) actions forcompl iance wi th standards of fundamental human rights protection. Thispower is l imi ted to the national implementation of EC legislation; the ECJdoes not review purely national laws for complianc e with principles offimdamental human rights (Metropoulos, 1992: 145ff.).17 Some argue thatoversight of national legislation is inevi table; even if not, a s the scope of ECactivi ties expands, this function is becoming more important (Wei ler, 1986:1136-42).In establ ishing human rights law, the ECJ was responding to nationalconsti tutional courts and had to satisfy their stringent standards. For themome nt, domestic consti tutional courts in Europe remain generally moreactive than the ECJ in enforcing individual rights. The consti tutional courtsof Italy, Germany and other countries have not rel inquished their claim toexercise concurre nt juducial re view (Weiler, 19 86). The resulting pluralsystem creates two possibi li t ies for confl ict to arise between international andnational human rights norms, in which the ECJ might seek to imposestronger or weaker human rights standards on i ts members. The fi rst mightarise when the ECJ and national courts resolve confl icts between competingfundamental rights in di fferent ways. Recently, for example, the ECJnarrowly avoided deciding the question of whether the Irish constitutional

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.mlcndment banning abortion violates a fundamental human right. Thesecond might arise when European and national law rcsol~~c conflict sbctwccn individual and social interests in di fferent ways. Expanded EClegislation in arcas like environme ntal policy, consum er protection and socialprotection makes such clashes almost inevi table (Mctropoulos, 1992:1SOff.).

l hc acceptance of the ECJs activi ties in the human rights area has beendn offsho ot of the influcncc it has gained by adjudicating disputes in thecommercial realm and by serving as part of the EC, which i tsel f enjoys amcasurc of legi timacy. Ix The ECJ has been careful not to overstep theboundaries of the legi timacy that these underlying factors provide (Wei ler,199 1; Stein, 1981). Such legi timacy remains fragi le. The Maastricht Treatyon Political Union c ontains a Protocol protecting the Irish anti-abortionamendment, whi le the revisions to Article 130, incorporating consumerpolicy, health policy, environm ental policy and a number of other policies,speci fical ly seeks to l imi t the power of the ECJ to review nationalderogations. Whether or not the Maastricht Treaty m arks a trend toward thet&-ma 1 politicization and limitation of ECJ jurisprudence, the perceivedpol i tical constraints on the court are tightening. Some predict that the ECJwi l l delay any hrther movement toward incorporation (Wei ler, 1993:46-32; Metropoulos, 1992: 163).

5. Lessons from the European ExperienceThe analysis above s uggests that the success of the European system , whi lestriking in some areas, has been slow and uneven overal l. The ECH R andEC system s have developed subtle and del icate insti tutions for the suprana-tional adjudication of human rights issues, which command consistentcompl iance among the great majori ty of European governments. The CSCEand EC provisions for promoting human rights outside of the core of WestEurope through the establ ishment of soft-law norms and the promise ofcvcntual membership have been weak and uneven. The ECs experience wi thsanction s has been generally disappointing.

This pattern of success and failure suggests a number of hypotheses aboutthe general conditions mider which international human rights regimes cansucceed. The experience of the Inter-American system under the OAS, aswel l as efforts to promote human rights in Eastern Europe and the formerSoviet Union, all of which are briefly mentioned below, sup port theprel iminary conclusions drawn from Europe.I. The most effective insti tutions for international human rights enforcementrely on prior sociological, ideological and institutional converge nce towardcommon norms.

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Human rights guarantees m ust ul timately be implemented by domesticgovernments. Al l three instruments of international human rights enforce-ment outl ined above - sanctioning, shaming and cooptation - work bychanging the domestic balance of power wi thin and between societal actorsand government insti tutions, thereby increasing the target governmentsincentive to respect human rights. Some elements wi thin governmentstargeted by international pressure s for human rights complianc e willgenerally oppose compl iance; the greater the opposi tion to compl iance, themore external pressure is needed to al ter it. Thus, barring the use ofextensive coercion, substantial convergence of domestic pol icy is l ikely to bea precondition for international influence to be effec tive. The more themember states al ready respect human rights, the more suc cessful the regimewill be.

The uniquely successfid record of European human rights regimespresupposes a strong dom estic conseneus and adherence to basic democraticnorms. The underlying sources of stabi l i ty for the European regime are ageneral respec t for individual human rights in public and elite opinion,which leads member governments to avoid publ ic non-compl iance, and theexistenc e of independent judiciaries and legislatures, which act semi-autonomously to promote human rights. More subtly, the regime has alsoparalleled purely legal trends: a gradual legal transform ation throughoutWestern Europe toward more explici t system s of consti tutional judicialreview, and the regional convergence of commercial law, which has broughtwi th i t a certain amount of human rights jurisprudence (Stone, 1992).

These precondi tions permit the use of subtle insti tutional forms ofshaming and cooptat ion, which require the active participation of independ-ent ci tizens, judges and legislators. Shaming requires the active support ofdomestic publ ics wi thin the target state, who m ust share simi lar ideologicalnorms. Cooptation requires assistance from courts or legislatures wi thin thedomestic pol i ty of the target state, which must be able to act autonomously.System s based on individual peti tion, which tend to be the most effective,rely on the existen ce o f private individuals and groups with the requisiteeducation , financial m eans, and secur ity from retaliation to initiate apetition. The lack of such individuals and groups is explicitly recognized inother regional human rights system s, notably the inter-American system ,which provides for peti tions on the behal f of others, as wel l as low standardsfor the exhaustion of judicial remedies, yet such assistance is clearly notenough to make the system effective in combating fimdamental humanrights violations. Hence these precondi tions are l ikely to be found onlywhere target states are al ready democratic or democratizing.

By contrast, European efforts at tradi tional state-to-state human rightsdiplomacy have not been particularly successful . Efforts to shame the

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Iberian, Greek and Turkish mi l i tary governments of the 196Os, 1970s and1980s appear to have been unsucces sfU1. In such cases, where democratiza-tion and adherence to human rights norms may pose a threat to regimestability , international pressure (short of outright coercion) is unlikely to beeffective in the short-term wi thout substantial pre-existing opposi tion.

This suggests what might be termed the tyranny paradox . Human rightsenforcement is most costly and least effective when directed against theworst human rights offenders. In Hai ti , for example, wi th i ts weakcommercial and financial classes and the strong role of the army in the pol i tyand economy, serious respect for human rights would threaten theinsti tutional power of the armed forces and the distribution of income andweal th . In such cases, there is good reason to bel ieve that authenticrestoration could not be achieved by means short of force or completesocietal and economic col lapse (Farer, 1994). Moreover, sanctions tend todiminish the wel fare of the poorest and most deserving, whi le leaving rulersunscathed, as appears to have been the case in Iraq, Uganda and Hai ti(Roberts, 1993: 20).

This is not to assert that international human rights instruments di rectedat dictatorships are necessari ly fi l t ile, only that the unique insti tutions andpractices of the West European system , which distinguish i ts performancefrom that of simi lar insti tutions in other regions of the world, resul t from i tsabi l ity to perfect democratic governance, not to establ ish i t. Hence the truemeasure of whether other human rights regimes, l ike the inter-Americansystem , are achieving the same level of development as the European systemis not their effectiveness in responding to dictatorships and coups incountries l ike Hai ti , Guatemala and Peru. Instead, i t is the perfection,harmonization and extension of human rights and democracy in countriesl ike Argentina, Chi le and Mexico and, secondari ly, the faci l itation oftransi tions to democracy in Nicaragua, El Salvador, Suriname and Paraguay.Those countries most active in their support for the OAS regime have beenthose, s uch as Chi le and Argentina, who se ek to mobi l ize internationalsupport for perfecting democracy and maintaining civi lian rule in their owndemocracies. This is the motivation that most closely resembles that whichgave rise to the European system .lY

This finding is consis tent with recent liberal theo ries of internationalrelations and international law, which suggest that effective internationalinsti tutions often presuppose establ ished democratic legal and pol i ticalorders and robust civi l societies, wi thin which domestic actors can work toassure comp liance with international norm s. Where non-liberal or quasi-l iberal states are involved, there is l i tt le reason to expect that suchuntradi tional instruments of international pol i tics wi l l f imction effectively(Moravcsik, 1992; Burley, 1993a, b).

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2. The Lack of international consensus, rather than the weakness of in-ternational institutio ns, Benerally imposes the binding constr aint on inter-national human rights enforcement.

The obstacles to international insti tutional comm itments by nations in theWestern Hem isphere, Eastern Europe or the former Soviet Union stem notfrom the lack of effective and properly designed international insti tutions,but from the fai lure of governments to comm it themselves to them. TheEuropean record suggests that such comm itments develop slowly, evenamong stable and advanced industrial democracies. Al though Europeaninsti tutions have long been capable of issuing declarations, imposingsanctions and developing proper norms, i t has taken generations for theprocedures that support them to become widely effective. This is particularlytrue of the most invasive, but ultimately most uniquely effective, Europeanregimes, namely those (the EC and ECHR) that are based on the individualright of petition and binding supranational adjudication.

This is not to deny that other system s, for example, may be moving in thedirection of the European system and, in the long term, may reach a simi larpoint. The OAS, for example, currently appears to lack a consensus formoving further. The current consensus on developing the inter-Americansystem s appears to l ie in the di rection of strengthening provisions againstdictatorships. Activist democracies in the OAS system are particularlywi l ling to cri ticize distant dictatorships such as Hai ti - the cases mostremote from their own domestic concerns.22 They appear much less wi l lingto accept de facto supranational jurisdiction over the internal affai rs ofdemocratic governments. The declarations of OAS foreign ministers atrecent meetings stress above all the attempts to combat dictatorship, ratherthan to improve democracy. This reflects the inabi li ty of governments toimpose order domestical ly, as in the case of Brazil , or the defense of existingone-party system s for maintaining domestic order, as in the case of Mexico(Bloomfield, 1994). In countries l ike Peru, Honduras, and even Argentinaand Uruguay, there is a tendency to view human rights concerns assecondary to national exigencies (Bloomfield, 1994; Mtndez, 1994).

The importance of consensual , rather than insti tutional , l imi tations isparticularly clear i f one considers that the OAS system is, in a formal sense,patterned after the European system and stronger than i ts model . The OASComm ission has been in existence since 1959, charged ini tial ly wi thimplementing the American Declaration on the Rights and Duties of Man of1948 and, after 1979, the American Convention on Human Rights. In anumber of ways, such as the recogni tion of peti tions, the formal powers ofthe Inter-American Comm issions and Court are more extensive than theirEuropean counterparts. Yet the system has not brought about a higher levelof compl iance wi th international norms. Moreover, in contrast to Europeandevelopments, an increasing pol i tization of the Inter-American Court is

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currently visible. These are sobering reminders of the l imi ted independentcontribution that international organizations can mak e to the consolidationof democratic practices.

Even in West Europe, i t was only in the 1970s and 198Os, after decades ofdevelopment, that the norms of binding supranational jurisdiction andindividual right of peti tion were fi rmly establ ished. Where domestic andinternational confl icts of interest make such l inks more risky - as in Centraland Eastern Europe, or many parts of the Western Hemisphere - i t is l ikelyto require even more time. And in Europe, there remains far lessinternational consensus on social and economic rights than on civic andpolitical rights. 20 Strongly pressuring countries to acce pt binding jurisdic-tion and the individual right of petition before they are ready to accep t itvoluntari ly is to invi te open non-compl iance, as occurred among Europeandictatorships.3. Whi le awai ting the development of a system of supranational adjudication,more promising strategies may be to strengthen domestic civi l society andpolitical inst itutions, and to strengthen traditional international organiza-tions that Bather information and arrange consul tations.Given that the civi l societies and domestic insti tutions of most LatinAmerican or East European countrie s are currently unable or unwilling tosupport the subtle intervention of the mature European-style regime, theprimary task for international insti tutions is to create the precondi tions forsuch a system . The analysis of the West European experience suggests twomethods.

The fi rst method is to strengthen domestic insti tutions through whichindidividuals and groups in civi l society can express their views. As theEuropean system demonstrates, robust and independent publ ic opinion,non-govern mental organizat ions, legislators and judiciary are a critical l inkin creating a fimctioning system . Only where domestic insti tutions have thesafe and impartial production of information and enforcement of claimsare regimes l ikely to work. Election moni toring and oversight of peaceagreements are examples (Vaky, 1993: 24-5). Since the instrumentsdiscussed here al l rely upon the inexpensive provision of information abouthuman rights violations, private and public international organizations thatexpand the capaci ty of private actors to transmit information are l ikely topromote human rights compl iance both in the short- and long-term. Therole of non-governmental organizations (NGOs) is cri tical in this regard.

Independent judiciaries comprise an especial ly important l ink. Amongindependent judiciaries, a transjudicial dialogue can emerg e, in whichnormative convergence develops through communication between judgesand lawyers in di fferent nations (Burley, 1993b). International regimes thatfoster transnational contacts and common standards among judges - as wel l

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as parliamenta rians, political parties and regulatory agencies - would be aposi tive step toward creating the precondi tions for effective supranationaljurisprudence. Recent research suggests that the independence of judges isimperi led not just in non-democratic system s, but in democratic system swith de facto, long-term, one-party rule, of which Mexico is a notableAmerican example and which a number of East European countries may bedeveloping.22

The second method is to strengthen more tradi tional information-gathering and consul tative insti tutions l ike CSCE and EPC, which are moreappropriate to the more diverse normative and insti tutional environment ofCentral and Eastern Europe - and, by extension, the Western Hemisphere.Such insti tutions also rely on an international normative consensus, but i tneed not run as deep. Such organizations work primari ly by shaminginternational ly and perhaps by the impl ici t threat of sanctions, but they lackthe fundamental grounding in domestic pol i tics that make the ECHR andEC system s distinctive. They act as classical international regimes, contribut-ing legal technique, generating information about common problems andproviding for discussion. As such, they are unable to provide the unparal-leled level of uni form protection provided by the unique system of WesternEurope.

By contrast, there is l i tt le evidence from Europe that posi tive or negativesanctions in support of democratization and human rights are effective orrepl icable elsewhere. European countries do not, in general , view economicsanctions as a cost-effective means of imposing democracy and humanrights. Attempts to pursue this strategy in Africa m et wi th no clear successe s.Such efforts tended to be costly, and intergovernmental pol i tical consensusbehind their use has tended thus to be sporadic at best. Simi larly, i t seemsthat the OAS remains skeptical about the use of economic sanctions ongovernments that systematical ly violate human rights (Bloomfield, 1994).

A more sub tle and perhaps more effective means of achieving a simi larend, however, may be to make membership in regional trading arrangementscondi tional on adherence to norms of democracy and human rights. Thepossibi l ity that the democratic precondi tion for membership and associationin the EC has played an importa nt long-term role in increasing thelegi timacy of democracy in Southern and Eastern Europe cannot be ruledout. Under condi tions of democratic transi tion, in which a number ofoutco mes are possible, including a reversion to authoritarian rule orcommu nist government, the promise of EC membership may have helpedtip the balance toward democracy, and i t may help maintain the stabi l i ty ofdemocracies thereafter.23 Certainly this i s the wa y the issue was seen in Spainafter the death of General France. The success of posi tive sanctions,however, may be di fficul t to repl icate, because the focused ideological andeconomic pul l of the EC is unmatched elsewhere in the world. In any case,

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this is not an effective method to employ against enti rely undemocraticgovernments. The possibi li ty of delaying EC membership does not seem tohave deterred Iberian, Greek or Turkish mi l i tary coups. Moreover, sanctionsor denial of association agreements may impede the social transformationsnecessary to create the precondi tions for democracy.

In conclusion, the European case suggests that nei ther a view of humanrights regimes as a projection of the beliefs of a dominant power, nor onewhich sees them as eminating from intergovernmental bargains on the basisof reciproci ty, captures their essential dynamic. The European human rightsregime was created by governments and groups anxious to secure humanrights a t home and has been extended through a slow process, lasting hal f acentury, of shaming and cooptating domestic governments into acceptingincremental changes in their domestic practices. The most importantpreconditions for the creation of and compliance with the sort of highlyrefined regim e norm s found in Europe are strong pre-existing norm s,practices and insti tutions of l iberal democracy, which permit causal mecha-nisms to operate through civi l society and semi-autonomous governmentinsti tutions. Within such a community of establ ished Liberal democracies,international regimes can contribute to the harmon ization, perfection andadjudication of human rights, which can lead, over generations, to theemergence of the transnational rule of law. Outside of such a commun ity,the instruments of international human rights statecraft remain moreprimi tive and the resul ts correspondingly more modest.

NotesI am grateful to Anne-Marie Slaughter Burley for helpful conversations andsuggestions to Fen Hampson, Kathryn S&kink, Stephen Krasner and participants inan Inter-American Dialogu e Conference for comments; and to Brian Portnoy andDomenika Baran for research assistance. For financial support, I thank the GermanMarshall Fund. A n earlier version of this article appeared as Lessons from theEuropean Human Rights Regime, in Inter-American Dialope, Advancing Democ-sacy and Human RQhts in the Americas (Washington, DC: Inter-AmericanDialogue, 1994).

1. In an attempt to focus on direct policy instruments for the internatio nalpromotion of human rights and democracy, I have deliberatel y set aside twodistinct groups o f policies. The first group comprises education programs whichtend to be small an d would fit into the categories of shaming and subversion. Thesecond group comprises indirect po licies of achieving democracy and humanrights, for example by promoting economic growth, spreading literacy, prevent-ing conflict through military intervention, encouraging judicia l independ ence,and so forth. Some of these will be examined at the end of the article.

2. Article 113 of the Treaty of Rome, providing for the Common CommercialPolicy, was employed to impose sanctions against Iran and the USSR; Article

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224 was employed in the Falklands crisis; Article 223 to embargo arms againstIran in 1980. In addition , Article 235 offers general po wers (see Holland , 1991:184).

3. Trade sanctions under Article 113 could formally be imposed by qualifi edmajority vote, but Article 113 decisions tend to be taken under an informal ruleof consensus.4. Guy de Bassompierre, cited in Hollan d (1991: 182).

5. See Hill (1992). For a contrary interpretation, see Martin (1992).6. The Lomt Convention, which has been revised three times, replaced the

Yaound e Convention, concluded in 1963. For an overview, see Lister (1988:197).

7. The South Africa clause was most enthusiastically supported by the Dutch andBritish Labour governments, while other EC governments were notably lessenthusiastic. See Lister (1988: 197-9).

8. Both European leaders an d Mediterranea n democratic politicians had led thesouthern publics to believe that the non-democratic government had been theironly obstacle to.membership. Hence they were surprised when the EC membercountries hesitated, extending the negotiation s and the transition period.

9. The role of the EC is one of coordination, not supranational implementation.The EC Commission does not play an important indepen dent role in EasternEurope, since direct EC aid (as opposed to bilatera l aid from EC countries totalsonly l-2% of total Western aid. The European Commission was detai led by theParis G-7 Western Economic Summ it of 1990 to coordinate G-24 activities, buthad little autonomy in doing so. This coordination simply involved the provisionof information and the organization of meetings. It did not include discretionover funding , except for the relatively modest amount of direct EC aid. For askeptical view of the Commissions influence, see Haggard and Moravcsik(1993).

10. Strictly speaking, any state involved, includin g that of an individu al petitioner,has the right to refer the case to the court. Individua l petitioners do not havesuch a right. In practice, however, almost all referrals are made by theCommission. When Protocol 10 of the Convention comes into force, only asimple majori ty wi l l be required in the Comm ittee to refer a case. See Robertsonand Merrill (1993: 300ff.).

11. The remainder were struck off the list for other reasons. This may under-estimate, though probably not greatly, the number of cases in whichgovernm ents had changed their decision s or policies at an early stage, resultingin a declaration of inadmissibili ty.12. For example, as of 1991, G reece, Turkey, Mal ta, Switzerland and Liechtensteinhad not signed Protocol 1, guarantee ing the rights of property ownership,education and free elections. On other area s, see Weiler (1986: 1141).

13. There is a scholarly debate as to whether the ECHR is self-executing. For aninitia l sally, see Buergen thal (1965). In Belgiu m, the Netherlands, Germany,Italy, Greece and Turkey, the Convention has been treated as self-executing: inScandinavia , Ireland and Luxembourg, enabli ng legislation was required and wasoften slow in coming.

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14. On the other hand , the wording is often loose, with governments committedonly to endeavor to achieve specified ends. Nor, of course, is there anyrecognition of a right to take politica l action to alter borders. Even so, Greeceand Bulgari a submitted interpretative statements that restricted the potentia lapplicatio n of these clauses.

15. At an early stage in the development of the EC legal order, the European Courtof Justice (ECJ) recognized some fundame ntal rights of workers. For a moreextensive history o f this developme nt, see Weiler (1986).

16. On the Courts motivations, see Weiler (1986 : 1118; 11 38).17. This includes nation al derogations from EC law under Articles 36 and 56 for

reasons of public order, safety and health.18. TO an extent, the growth of ECJ jurisprudence may have reflected the trend

toward explicit judicia l review in Europe mention ed above in the context of theConvention. But, as Weiler points out, while traditionally, resistance to anenumerated constitutional bill of rights is tied to principled resistance to judicia lreview, the Treaty of Rome grante d the ECJ explicit powers of judicia l review,but promulgate d no bill of rights (1986: 1110).

19. On Chiles motivations, I draw on the public comm ents of Herald0 Mufioz,Permanen t Representative of Chile to the Organization of American States atthe Inter-American Dialogu e Conference on Advancing Democracy andHuman Rights in the Americas: What Ro le for the OAS? (2-3 December1993). It is perhaps no surprise that Chile, with its long democratic tradition,would advocate this position most strongly.

20. Althoug h the need for the enforcement of socioeconomic rights may appeareven more pressing in the Western Hemisphere than in Europe, it will probablyprove difficu lt to gain the consent of governments to any bindin g rules in thisarea.

21. Lack of partisan uncertainty gives ruling coalitions or parties a greater incentive

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