Violations of the European Convention on Human Rights: Does Post-Communism Matter

Violations of the European Convention on Human Rights:Does Post-Communism Matter Steven D. Roper Department of Political Science Eastern Illinois University and Lilian A. Barria Department of Political Science Eastern Illinois University

Research Questions This research examines violations of the European Convention on Human Rights (ECHR) and whether there is a difference in the violation levels of post-communist to other ECHR member-states. • What factors are associated with state’s violating international agreements and how can organizations generate compliance among member-states? • Is the label “post-communist” relevant today? Are there differences between post-communist and other European states?

Framing the Debate: Contending Theories about Compliance • The enforcement theory of compliance posits that sanctions and monitoring yields a reduction in violations (Simmons 2000; Cortright and Lopez 2002). • The managerial theory suggests that conformity is due to increasing capacity, transparency and simplification in rules (Chayes and Chayes 1993, 1995) • The constructivist theory argues that states cease to violate because of their domestic culture of law-abidingness and support for the rule of law (Gibson and Caldeira 1996).

Framing the Debate: Contending Views of Post-Communism • The historical legacies view maintains that the post-communist experience affects the current behavioral characteristics of states (Powers and Cox 1997). • The post-post-communist view maintains that differences among states is much less due to the communist experience—country differences are more nuanced (King 2000). • The post-communist cleavage is more of function of differences within the post-communist grouping (East Europe versus post-Soviet communism, Popova 2012).

The European Human Rights System • The European Convention for the Protection of Human Rights (ECHR) entered into force in 1953. The Convention requires that all contracting states implement and enforce its rights provisions in their domestic legal system. • In the original system, three institutions were responsible for enforcing the obligations undertaken by member-states: The European Commission of Human Rights, the European Court of Human Rights (ECtHR) and the Committee of Ministers of the Council of Europe.

The European Human Rights System • In 1998, a series of major reforms ended the Commission as a separate entity and folded many of its functions into the Court. Citizens now had the ability to directly petition the ECtHR. • States delegate to the Court the ability to decide if the Convention has been violated and to pass binding judgments requiring states to alter their practices. When a case is decided by the Court, it can only rule on whether an individual has had his or her rights violated by a member-state—it cannot over-rule national decisions or annul national laws.

The European Human Rights System • The ECtHR can impose three forms of penalties: • Just satisfaction: Typically, this penalty takes the form of some kind of payment to the victim. • Individual measures: These measures are meant to put the victim into the same position enjoyed prior to the violation (e.g., changing decision of a domestic court). • General measures: The Court can also require other measures to prevent further violations associated with a specific judgment (change in the domestic legal code).

Operationalizing Theories in the Context of the ECtHR • We examine violations of the ECHR and judgments of just satisfaction, individual and general measures to determine the state characteristics associated with each type of violation and whether there is a difference in the violation levels of post-communist to other ECHR member-states.

Operationalizing Theories in the Context of the ECtHR • Enforcement Theory: Is based on a cost/benefit analysis in which the operationalization of the cost is the member-state’s economy (GDP) for just satisfaction and the incorporation of international law (monism/dualism) for individual and general measures. • Managerial Theory: Maintains that over time, members develop greater institutional capacity to fulfill their obligations. Thus, we include a variable for time measured as the number of years member of the Council. • Constructivist Theory: Constructivists assume that states cease to violate because of their support for the rule of law. We include a composite measure of rule of law.

Operationalizing Theories in the Context of Post-Communism • Enforcement Theory: We regard GDP as a surrogate for post-communism. A positive relationship between GDP and the judgment indicates a difference between post-communist and other members. Approximately 90% of post-communist members are monist, and view this variable as an appropriate indicator of sovereignty costs. • Managerial Theory: Given that post-communist states did not join the Council until the 1990s, these members should be more likely to violate the Convention. • Constructivist Theory: Post-communist states which exhibit less of a rule of law culture should violate the ECHR more often than other members.

Research Design and Data • Our data set includes all cases in which a judgment was rendered by the Court from 1998-2005. We code for every protocol and article in which there was a judgment. Our dependent variable measures whether the state was found to be in violation of the Convention (dichotomous dependent variable). • We create three models for each form of the dependent variable based on the type of judgment rendered by the Court (e.g., just satisfaction, individual and general measures). We use pooled cross-sectional time series and logit estimation to assess factors associated with the Court’s judgment.

Research Design and Data • Our three models (e.g., enforcement, managerial and constructivist) include a similar independent and control variables. All three models include a dichotomous post-Soviet independent variable which codes for all post-communist states which were a former Soviet Republic and also a population control theorizing that population size may influence the number of cases brought before the ECtHR.

Results

Conclusions • When the costs of sovereignty are the lowest and defined financially (i.e., just satisfaction), only the enforcement theory is supported. For those states in which the financial sanction is the most costly, violation levels are lower. Our findings show that post-communist states are less likely to have a judgment of just satisfaction.

Conclusions • In higher sovereignty costs situations such as the imposition of individual and general measures, technical expertise and years of membership become important deterrents to violations. We interpret this to mean that as sovereignty costs increase, the behavior of states change. Post-communist countries violate as a percentage more frequently as these states do not have the same capacity of other members.

Conclusions • When the nature of the sanction is financial, post-communist states respond by complying to a greater degree than other members. However when the sanction changes to take on a sovereignty characteristic in which compliance is much more a function of technical expertise, post-communist countries violate more frequently. These states do not have the same capacity of other members. • Equally importantly, our findings show that differences among post-communist states are just as important as difference between them and other states.

Violations of the European Convention on Human Rights: Does Post-Communism Matter