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First published June 1995

Explaining International Human Rights Regimes:: Liberal Theory and Western Europe

ANDREW MORAVCSIKView all authors and affiliations
Volume 1, Issue 2
https://doi.org/10.1177/1354066195001002002

Abstract

Under what conditions are effective international regimes for the promotion of human rights likely to emerge? Case studies of European institutions — the European Convention on Human Rights, the European Community and the Conference on Security and Cooperation in Europe — confirm hypotheses more consistent with Liberal theories of international relations than their Institutionalist or Realist counterparts. The uniquely successful mechanisms of the European regime, in particular its fine-grained system of individual petition and supranational judicial review, function not by external sanctions or reciprocity, but by `shaming' and `coopting' domestic law-makers, judges and citizens, who pressure governments from within for compliance. The evolution of these mechanisms presupposes the existence of an autonomous independent civil society and robust domestic legal institutions and, even in the relatively propitious circumstances of postwar Europe, required several generations to evolve. Such institutions appear to be, with only a few exceptions, most successful when they seek to harmonize and perfect respect for human rights among nations that already effectively guarantee basic rights, rather than introducing human rights to new jurisdictions. Those nations in which individuals, groups or governments seek to improve or legitimate their own democratic practices benefit the most from international human rights regimes.

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I am grateful to Anne-Marie Slaughter Burley for helpful conversations and suggestions to Fen Hampson, Kathryn Sikkink, Stephen Krasner and participants in an Inter-American Dialogue Conference for comments; and to Brian Portnoy and Domenika Baran for research assistance. For financial support, I thank the German Marshall Fund. An earlier version of this article appeared as `Lessons from the European Human Rights Regime', in Inter-American Dialogue, Advancing Democracy and Human Rights in the Americas (Washington, DC: Inter-American Dialogue, 1994).
1.
1. In an attempt to focus on direct policy instruments for the international promotion of human rights and democracy, I have deliberately set aside two distinct groups of policies. The first group comprises education programs which tend to be small and would fit into the categories of shaming and subversion. The second group comprises indirect policies of achieving democracy and human rights, for example by promoting economic growth, spreading literacy, preventing conflict through military intervention, encouraging judicial independence, and so forth. Some of these will be examined at the end of the article.
2.
2. Article 113 of the Treaty of Rome, providing for the Common Commercial Policy, was employed to impose sanctions against Iran and the USSR; Article 224 was employed in the Falklands crisis; Article 223 to embargo arms against Iran in 1980. In addition, Article 235 offers general powers (see Holland, 1991: 184).
3.
3. Trade sanctions under Article 113 could formally be imposed by qualified majority vote, but Article 113 decisions tend to be taken under an informal rule of consensus.
4.
4. Guy de Bassompierre, cited in Holland (1991: 182).
5.
5. See Hill (1992). For a contrary interpretation, see Martin (1992).
6.
6. The Lomé Convention, which has been revised three times, replaced the Yaounde Convention, concluded in 1963. For an overview, see Lister (1988: 197).
7.
7. The South Africa clause was most enthusiastically supported by the Dutch and British Labour governments, while other EC governments were notably less enthusiastic. See Lister (1988: 197-9).
8.
8. Both European leaders and Mediterranean democratic politicians had led the southern publics to believe that the non-democratic government had been their only obstacle to membership. Hence they were surprised when the EC member countries hesitated, extending the negotiations and the transition period.
9.
9. The role of the EC is one of coordination, not supranational implementation. The EC Commission does not play an important independent role in Eastern Europe, since direct EC aid (as opposed to bilateral aid from EC countries totals only 1-2% of total Western aid. The European Commission was detailed by the Paris G-7 Western Economic Summit of 1990 to coordinate G-24 activities, but had little autonomy in doing so. This coordination simply involved the provision of information and the organization of meetings. It did not include discretion over funding, except for the relatively modest amount of direct EC aid. For a skeptical view of the Commission's influence, see Haggard and Moravcsik (1993).
10.
10. Strictly speaking, any state involved, including that of an individual petitioner, has the right to refer the case to the court. Individual petitioners do not have such a right. In practice, however, almost all referrals are made by the Commission. When Protocol 10 of the Convention comes into force, only a simple majority will be required in the Committee to refer a case. See Robertson and Merrill (1993: 300ff.).
11.
11. The remainder were struck off the list for other reasons. This may underestimate, though probably not greatly, the number of cases in which governments had changed their decisions or policies at an early stage, resulting in a declaration of inadmissibility.
12.
12. For example, as of 1991, Greece, Turkey, Malta, Switzerland and Liechtenstein had not signed Protocol 1, guaranteeing the rights of property ownership, education and free elections. On other areas, see Weiler (1986: 1141).
13.
13. There is a scholarly debate as to whether the ECHR is self-executing. For an initial sally, see Buergenthal (1965). In Belgium, the Netherlands, Germany, Italy, Greece and Turkey, the Convention has been treated as self-executing: in Scandinavia, Ireland and Luxembourg, enabling legislation was required and was often slow in coming.
14.
14. On the other hand, the wording is often loose, with governments committed only to `endeavor' to achieve specified ends. Nor, of course, is there any recognition of a right to take political action to alter borders. Even so, Greece and Bulgaria submitted interpretative statements that restricted the potential application of these clauses.
15.
15. At an early stage in the development of the EC legal order, the European Court of Justice (ECJ) recognized some fundamental rights of workers. For a more extensive history of this development, see Weiler (1986).
16.
16. On the Court's motivations, see Weiler (1986: 1118; 1138).
17.
17. This includes national derogations from EC law under Articles 36 and 56 for reasons of public order, safety and health.
18.
18. To an extent, the growth of ECJ jurisprudence may have reflected the trend toward explicit judicial review in Europe mentioned above in the context of the Convention. But, as Weiler points out, while `traditionally, resistance to an enumerated constitutional bill of rights is tied to principled resistance to judicial review', the Treaty of Rome granted the ECJ explicit powers of judicial review, but promulgated no bill of rights (1986: 1110).
19.
19. On Chile's motivations, I draw on the public comments of Heraldo Muñoz, Permanent Representative of Chile to the Organization of American States at the Inter-American Dialogue Conference on `Advancing Democracy and Human Rights in the Americas: What Role for the OAS?' (2-3 December 1993). It is perhaps no surprise that Chile, with its long democratic tradition, would advocate this position most strongly.
20.
20. Although the need for the enforcement of socioeconomic rights may appear even more pressing in the Western Hemisphere than in Europe, it will probably prove difficult to gain the consent of governments to any binding rules in this area.
21.
21. Lack of partisan uncertainty gives ruling coalitions or parties a greater incentive to `capture' the judiciary. For an analysis of Japan's one-party rule, see Ramseyer and Rosenbluth (1993).
22.
22. Tom Farer (1994: 14-15) speculates that Haiti was `too remote and peculiar' to be part of the national interests of the USA and other American nations. Only the OAS, he argues, made it salient. Yet one might also argue the opposite. Precisely because Haiti is distant and dictatorial, it marked a good precedent for implementing the Santiago Declaration.
23.
23. The Argentina-Brazil economic agreement of 1986 founding the MERCOSUR free trade zone, stressed that democratic governance was a `basic requirement' for the participation of any third parties and an important purpose of the agreement was `to consolidate democracy as a way of life and a system of government' (Muñoz, 1993: 86).

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Volume 1, Issue 2
Pages: 157 - 189
Article first published: June 1995
Issue published: June 1995

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ANDREW MORAVCSIK
Harvard University
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