A Madisonian Argument for Strengthening International Human Rights Institutions: Lessons from Europe

last revised Aug. 7, 2008

Jamie MayerfeldUniversity of Washingtonjasonm@u.washington.edu

Draft. Readers: Please send me your comments. Please consult me before citing.

Abstract

Human rights require external as well as internal safeguards.  They require the backing of strong international human rights institutions.  Such institutions extend and reinforce the checks and balances on which constitutional democracy depends.  Cultivation of strong international human rights does not imply movement toward a sovereign world state.  What is needed for the protection of human rights is a model of shared governance built on the cooperation of international institutions, democratic states, and civil society.   The system envisages that multiple democratic states function as co-guardians of human rights within each national jurisdiction.  The principle of "concurrent responsibility," as I call it, is intrinsic to democracy itself, and is a central theme in the political thought of James Madison.  The wisdom of this approach is demonstrated in the achievements of the European human rights regime.

ForewordI argue in this chapter that democracy is incomplete unless domestic human rights institutions are bolted into a system of international guarantees. State sovereignty, if it means freedom to govern one’s domestic or foreign affairs without the constraint of international laws and institutions, is inimical to constitutional government. 1 It would be a mistake, however, to seek a diminished role for states. What is needed for the protection of human rights is a model of shared governance built on the cooperation of international institutions, democratic states, and civil society. A world sovereign is not the answer.2 Shared responsibility rather than sovereignty is the organizing principle of a successful human rights regime in both the domestic and international spheres.

My chapter is organized as follows. I first lay out the essentials of what I call a Madisonian argument for the creation of strong international human rights institutions. Such institutions do not displace the state, but instead make states, together with international and nongovernmental organizations, co-guardians of human rights within each national jurisdiction. The underlying principle is that of checks and balances, or what I sometimes call “concurrent responsibility,” a principle fundamental to democracy itself. There follows an overview of the European human rights regime, with special attention to the struggle against torture. I claim that 1 My argument is therefore the opposite of Jeremy A. Rabkin’s in Law Without Nations?: Why Constitutional Government Requires Sovereign States (Princeton: Princeton University Press, 2005).2 I am therefore in broad sympathy with the argument made by Michael Goodhart in this volume.1 1

the success of the European regime derives largely from its collective, or multilateral, character. In the final sections, I identify some of the unique benefits of a collective international approach to the protection of human rights, and explain why such an approach does not entail the creation of a world state.

The International Scope of Constitutional DemocracyJames Madison wrote: “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself” (Federalist 51). The necessary self-control, Madison taught, could be obtained through a system of checks and balances which would block abuses of power and steer officials to the adoption of wise and just policies. What Madison called republican government we now call constitutional democracy. One of its defining objectives, and the specific concern of this paper, is the protection of human rights. That officials may be simultaneously empowered to protect human rights and hindered from violating them comes as a welcome surprise. Of course, this result is not secured by magic, or even by the application of a few wise principles. Madison’s constitutional program was highly intricate, its details carefully adjusted to the circumstances of his society and the lessons of accumulated experience. His example proves the need for continual reexamination and revision of constitutional strategy.

Now, the classic theories of Locke, Blackstone, Montesquieu and Madison share an obvious weakness: constitutional democracy, when confined to the national level, is a fragile arrangement. If an ambitious leader or party targets constitutional restraints that stand in its way, domestic opponents may lack the power to stop it. Even when constitutional processes are formally left in place, human rights may be violated if the appointed constitutional guardians do not rise to their defense. Fear, xenophobia, sectarianism, prejudice, indifference, and political intrigue are powerful solvents of constitutional commitments. History offers many examples of formal democracies that have allowed systematic human rights violations or even slid into dictatorship.

It stands to reason that if internal safeguards are vulnerable, help should be sought from the outside. External monitoring and constraint provide domestic checks and balances with the backing needed to operate most effectively. This is an argument for the internationalization of constitutional democracy. The claim I am making is not that transnational problems require democratic decision-making at the transnational level (though that may indeed be true), but rather that a commitment to preventing human rights violations by one’s own government makes the involvement of international institutions necessary. We often think of international human rights institutions as a means for certain countries to improve the human rights records of other countries. But international human rights institutions also help democracies fulfill their own constitutional commitments. They complete the domestic constitutional order.3

I shall develop this argument through an examination of the regional system of human rights protection in Europe. There can be no doubt that this system has contributed dramatically to the protection of human rights. I do not offer a simple celebration. There have been major shortcomings and indeed tragic failures. But honesty requires recognition of the regime’s

3 For a powerful argument that international institutions can strengthen democracy at the domestic level, see Robert O. Keohane, Stephen Macedo, and Andrew Moravcsik, “Democracy-Enhancing Multilateralism,” Working Paper, Institute for International Law and Justice, New York University Law School, http://www.iilj.org.2 2

achievements as well as its shortfalls. The plain fact is that it has altered the political course of many countries for the better and ensured the safety and well-being of large numbers of people.

The regime’s success has depended on a partnership connecting international institutions, states, and nongovernmental organizations (NGOs). The regional bodies give NGOs new means to demand human rights improvements from states; committed states strengthen the powers and raise the standards of the regional bodies; these in turn oblige states to honor their commitments. The regime has accomplished what few if any European states could have done on their own, even within the domestic sphere. It mirrors, reproduces, reinforces, and is in turn reinforced by the human rights commitments of the more democratically advanced states. It showcases the power and promise of cooperative constitutionalism.

Several lessons from the European experience are anticipated in the constitutional philosophy of James Madison. What I have in mind are the following broad themes: a belief that good constitutional design brings out the best while suppressing the worst in human nature; a simultaneous commitment to popular self-government and the protection of individual rights; an insistence on dividing power and dispersing responsibility so as to encourage deliberation and deter abuse; an appreciation for both the institutional and pedagogical value of bills of rights; an awareness that human rights face dangers from inflamed majorities on the one hand and privileged minorities on the other; a reliance on select bodies of morally eminent, professionally qualified, and politically accountable officials to safeguard core constitutional values; an understanding that a plurality of interests and identities is a resource rather than a problem, and is indeed necessary to avert injustice; a flexible and experimental attitude that welcomes improved means to securing one’s constitutional objectives.4

It may strike some readers as odd to associate Madison with a project of legal internationalization. We remember him as an American founder, the man who helped weld thirteen states into a unified nation. He noted the ways in which a federal constitution would 4 The Madisonian character of most of these themes is too well known to require documentation. Many find expression in the Federalist 10 and 51. Madison’s attitude toward a national bill of rights evolved from ambivalence to firm support. On his early ambivalence, see the letter to Thomas Jefferson, October 17, 1788, in Jack N. Rakove, ed., James Madison: Writings (New York: Library of America) pp. 418-23. On his later support, see the essay on “Public Opinion” in the National Gazette, December 19, 1791, in Writings, ibid., pp. 500-01. He had always championed the Virginia Bill of Rights. See the peroration of the “The Memorial and Remonstrance Against Religious Assessments,” in Writings, ibid., pp. 35-36 . His experimentalism is expressed in a famous passage from Federalist 14: “Why is the experiment of an extended republic to be rejected merely because it may comprise what is new? Is it not the glory of the people of America that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?” Over his career he adjusted his constitutional strategy depending on what he perceived to be the greatest threats to personal freedom. At the Constitutional Convention he argued for the right of a Congressional veto over state legislation. See Writings, op. cit., pp. 99-100. But in response to the Alien and Sedition Acts a decade later, he worked with Jefferson to mobilize state resistance to federal tyranny. See the Virginia Resolutions Against the Alien and Sedition Acts, in Writings, op. cit., pp. 589-591, and Jack N. Rakove, James Madison and the Creation of the American Republic, 3rd ed. (New York: Pearson/Longman, 2007), pp. 151-54.3 3

enhance the nation’s independence and security vis-à-vis other countries.5 We should, however, distinguish between Madison’s political agenda and the concerns that helped drive it. He was not a nationalist in today’s sense. What recommended the federalist system in his eyes was the very distance it would create between government and the group loyalties of the people. Heterogeneity of interests and identities was, for him, a positive good. Deprived of a strong collective identity, the republic would be obliged to follow principle. Policy proposals would be taken up not for expressing a common will (impossible in the circumstances) but for appealing to good reasons.

Such logic, I suggest, would lead Madison to look favorably on contemporary efforts to strengthen international human rights institutions. Not only do such institutions give human rights an extra layer of protection. They possess one notable advantage over domestic rights institutions, namely that they are less vulnerable to capture by faction. We may define faction as a collective interest or passion unconstrained by justice.6 In 1787 Madison could write: “In the extended republic of the United States and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good” (Federalist 51). These words sound naïve today, when mass parties, mass media, and concentrated economic power make it all too easy for a majority or minority faction to take control of government. Moreover, contemporary states are all vulnerable to nationalism, which may itself be considered a kind of faction, visibly so when it asserts itself against the just claims of foreigners and ostracized citizens. The fear of faction which led Madison to support a federal union 230 years ago becomes an argument, in today’s altered circumstances, for the international supervision of domestic politics. International human rights institutions perform many of the functions that Madison’s domestic checks and balances, given the dramatic social and political transformations of the past two centuries, can no longer be counted on to deliver.

Concurrent Responsibility as a Principle of DemocracyThough I emphasize the contributions of international human rights institutions, I want strenuously to avoid the implication that they should function unaided. States remain responsible for the protection of human rights. When a state enlists the support of international institutions, the support should take the form of reinforcing and assisting commitments that the state has previously lifted onto its shoulders. The idea is not to displace responsibility upward, but rather to reaffirm one’s responsibility (as a state) by increasing the number of other entities that are simultaneously responsible for fulfilling a shared commitment to human rights.

The key concept is what I shall call “concurrent responsibility.” It refers to a situation in which several actors are committed to a common task, each is independently capable of fulfilling the task or ensuring that it is fulfilled, and each stands ready to do so if the others do not. An example drawn from the United States is the shared task of blocking unconstitutional laws. Members of Congress, the President and cabinet officials, and federal judges all take an oath to uphold the Constitution. If an unconstitutional bill is introduced in Congress, legislators have a duty to reject it. If they do not, the President has a duty to veto it, and if he fails to do so, or Congress overrides his veto, the federal courts have a duty to declare it unconstitutional. (We 5 See Federalist 41. This was not, however, a dominant motivation for Madison. It is not mentioned, for example, in the 1787 Vices of the Political System of the United States, in which he first formulated the case for a federal union. Madison: Writings, op. cit., pp. 69-79.6 I am adapting Madison’s own definition in Federalist 10.4 4

can tell similar stories about the concurrent responsibility of the three branches to block unconstitutional acts by the executive and judiciary.)

If Congress does its duty, the matter will never come before the President or the courts, but their independent power to block unconstitutional laws in case of Congressional malfeasance reminds Congress of its constitutional obligations. Concurrent responsibility thus has an educative and reforming function. It serves not merely as an insurance mechanism, but as a means of habituating actors into virtuous behavior and thus (in good Aristotelian fashion) making them virtuous. It also fosters dialogue, thus creating possibilities for mutual learning and assistance as well as mutual supervision. It is central to the theory of checks and balances. As Madison emphasized in Federalist 47, the separation of powers allows each of the nominally distinct branches to share in each other’s functions.

Another example of concurrent responsibility is the complementarity principle of the International Criminal Court (ICC). Under this principle, states are expected to prosecute genocide, war crimes, and crimes against humanity perpetrated by their citizens or occurring on their territory. (In truth they are expected to prevent such crimes from being committed in the first place.) However, if they fail to launch criminal proceedings, either from a lack of will or capacity, the ICC is empowered to take action in their stead. One benefit of the ICC’s complementary jurisdiction, it has been argued, is that it will encourage states to take their human rights responsibilities more seriously.7

We can see concurrent responsibility at work in a certain understanding of civil society. Tocqueville and Mill celebrated the civic initiative of American communities – their readiness when necessary to organize collective tasks normally entrusted to the state – because they believed it made citizens both less dependent on the state and better qualified to participate in government. But concurrent responsibility is central to democratic citizenship at a still deeper level, for it is implicit in the very idea that political decisions should be made by the people. Every citizen casting a vote has the responsibility to identify the best set of policies. One should vote as though one’s vote alone will determine the political outcome (where the outcome to be sought is not that which maximizes one’s personal interests, but is best from an impartial point of view). Other citizens’ votes serve as insurance against the possibility that I fail my responsibility by voting incorrectly. Popular elections are the original checks and balances. When democracy succeeds in cultivating virtuous citizens, the correct policies will tend toward unanimous support. As Rousseau says, “The first man to propose [new laws] merely says what all have already felt” (Social Contract, IV, i).

Concurrent responsibility runs counter to oft-heard admonitions about the benefits of specialization. Faith in the division of labor is one reason for the common misconception that only the Supreme Court has the responsibility to block unconstitutional laws. “Isn’t it wasteful to make everyone study the Constitution?” goes the thinking. Theorists from Aristotle to Mancur Olson have warned us that when everyone is responsible, no one is responsible.8 Concurrent responsibility raises the specter of shirking on the one hand and wasteful (or even destructive) duplication of efforts on the other hand.

7 See Jamie Mayerfeld, “The Mutual Dependence of External and Internal Justice: The Democratic Achievement of the International Criminal Court,” Finnish Yearbook of International Law, vol. 12 (2001): pp. 71-107.8 Aristotle, Politics, Book II, chapter v; Mancur Olson, The Logic of Collective Action (Cambridge, Massachusetts: Harvard University Press, 1971).5 5

We have here a situation in which two fundamental and contradictory principles of social life are both true. The tragedy of the commons is real: responsibility when shared is undermined. Checks and balances work: responsibility when shared is reinforced. To sort out the contradiction, one needs a more fine-grained theory to determine which principle applies under which circumstances. The tragedy of the commons shows that sharing of responsibility can deprive individuals of adequate incentives to behave responsibly. For this reason, systems of checks and balances have always depended on strong accountability mechanisms. Part of the responsibility that is shared is that of holding one another to our shared commitments.

Constitutional democracy exhibits the truth that responsibility is reinforced when shared. The contrary truth, recommending task differentiation, should carry less weight in the political sphere (pace Plato’s ideal city). The challenge for constitutional democracy is how to preserve effective accountability mechanisms in the face of renewed threats; a rich literature is devoted to this question. There may be limits to what can be achieved. It appears difficult, for example, to create accountability in the polling both, which would explain why the actual practice of voting falls short of Rousseau’s ideal. And yet the ancient Athenians sought to make voting an accountable act, not only by holding votes in public, but also by penalizing, through the graphê paranomôn, the proposal of unlawful decrees – a reminder that the original democrats viewed accountability as a defining feature of their political system.9

In Europe (as I intend to show) responsibility for protecting human rights is held concurrently by states and international institutions. Or to look at it another way: responsibility for protecting human rights within the jurisdiction of each state is held concurrently by that state and other European states. European states are co-guardians of human rights within each national jurisdiction. That at any rate is the principle on which the system is founded, a principle which to a considerable and increasing degree is reflected in practice.

The purpose of these remarks is to correct the common tendency of thinking that responsibility for protecting human rights rests either in one place (the state) or another (international institutions). There can be little doubt that Europe’s regional institutions have enhanced respect for human rights. There can be equally little doubt that respect for human rights varies according to the commitment demonstrated by particular states. The most committed states have maintained the best record at home, but have also worked to strengthen the human rights dimension of regional institutions. These in turn have led individual states to deepen their commitment to human rights. International institutions and rights-respecting states have endeavored to improve their own performance and that of each other, and in the process they have spread the culture of rights over a larger geographic area, increasing the number of rights-respecting states.

The European Human Rights RegimeThe European human rights regime is a complex system embracing different regional organizations and a multitude of overlapping initiatives. The guiding principle is that the protection of human rights is a collective task – that all European states and all European citizens are simultaneously responsible for the protection of human rights in each national jurisdiction. This principle has inspired unprecedented forms of transnational cooperation in the human rights field, including the establishment of supranational institutions that exert increasing influence

9 See Josiah Ober, Mass and Elite in Democratic Athens (Princeton: Princeton University Press, 1989), p. 109.6 6

over domestic policy. Since the character and extent of this cooperation are not universally known, I offer a bird’s eye view in the pages that follow.

In addressing this topic, I do not confine my attention to the European Convention on Human Rights (ECHR). Although the ECHR is rightly regarded as the linchpin of the system, it does not function alone. It is one of several human rights instruments of its parent body, the 47-member Council of Europe (CE), whose impact cannot be understood in isolation from the decisive contributions of the 27-member European Union (EU), the 26-member North Atlantic Treaty Organization (NATO), and the 56-member Organization for Security and Cooperation in Europe (OSCE). I examine each of these organizations in turn, beginning with the European Union.

The purposes of today’s EU extend well beyond the original goal of economic integration: the 1992 Maastricht Treaty subsuming the old European Economic Community under the broader mandate of a “European Union” is only one part of a long-term trend. The promotion of human rights is now a core mission of the EU. Under Article 6(1) of the Treaty on the European Union (TEU), respect for rights is defined as a foundational principle of the Union and demanded of all member states.10 Article 7 of the Treaty establishes procedures under which the Union may declare a member state to be in serious and persistent breach of human rights and, as a last resort, may suspend certain of the state’s rights under the Treaty, including the right to vote in the Council of Ministers. The powerful European Court of Justice (ECJ), responsible for enforcing EU law, has long recognized respect for fundamental rights as one of the general principles of law that guide its jurisprudence. This commitment is now enshrined in Article 6(2) of the EU Treaty. In 2000 the EU adapted a Charter of Fundamental Rights which, though not yet formally binding, commands general respect.11 The European Parliament (EP) has become an outspoken advocate for the promotion of human rights inside and outside the EU.12

Within the EU, human rights conditions are monitored (though inadequately, some have argued),13 in periodic reports by the EP and the Council of Ministers. Since 1997, a European Monitoring Center for Racism and Xenophobia (EUMC) has focused attention on one of the gravest sources of human rights violations in the region. In its foreign relations, the EU has made respect for human rights a criterion of development assistance and trade concessions, and has more than once sanctioned foreign countries for persistent violations.14

Significantly, Article 49 of the TEU, reaffirmed in the Copenhagen Criteria of 1993, makes respect for human rights a condition for the admission of new countries into the EU. A stream of EU guidelines and progress reports keeps candidate states aware of the requisite reforms.15 Among the experts, there is near-universal consensus that the “membership

10 “The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.”11 See Steven Greer, The European Convention on Human Rights (Cambridge: Cambridge University Press, 2007), p. 52.12 Michael Newman, “The European Union,” in Edward A. Kolodziej, ed., A Force Profonde: The Power, Politics, and Promise of Human Rights (Philadelphia: University of Pennsylvania Press, 2003), p. 186.13 Andrew Williams, EU Human Rights Policies: A Study in Irony (Oxford: Oxford University Press, 2004), pp. 98-102.14 Ibid, chap. 2.15 Ibid., pp. 73-77.7 7

conditionality” practiced by the EU has played a decisive role in encouraging, reinforcing, and consolidating human rights reforms in most countries of Central and Eastern Europe as well as in Turkey.16 A kind of symbiosis has thus developed between the EU and the ECHR. The material rewards of EU membership lead states to take the ECHR more seriously, while the ECHR and its case law lend content and legitimacy to the human rights demands of the EU.

Because NATO makes democracy and respect for human rights a criterion of admission, it has played a role similar to the EU in Central and Eastern Europe.17 The prospect of NATO membership has provided a significant incentive for democratic reforms, and scholars who study the relation between democratization and “membership conditionality” often study EU and NATO accession policies in tandem. 18 Below I note an example of successful human rights diplomacy by NATO, specifically, the role of its Secretary General in helping to repeal legal discrimination and defuse ethnic tensions in Latvia.

Some observers fault NATO for its tardy response to the Balkan crisis, when three years of half-measures permitted a continuing genocide of Bosnian Muslims by Serbs. Vigorous action was delayed until 1995, when, largely in response to the massacre at Srebrenica, a concerted NATO attack on Serb positions paved the way for the Dayton settlement of the same year. In 1999 NATO intervened in Kosovo to stop ethnic cleansing by the Serbs (but with the use of bombing tactics that were criticized by some human rights organizations), and in 2001 sent troops to halt an incipient civil war in Macedonia. In both Bosnia and Kosovo large NATO deployments monitored the peace and assisted the process of reconstruction.19

The OSCE is constituted differently from both NATO and the EU. Because membership is extended to all European countries and former Soviet republics (alongside Canada and the United States), the Organization includes several dictatorships and quasi-dictatorships with severe human rights problems. Membership conditionality is thus not part of the OSCE repertoire. (Since the OSCE is not a treaty organization, not even formal ratification is required.) Nonetheless, the Organization has made dramatic contributions to human rights.

When the OSCE, originally the Conference on Security and Cooperation in Europe (CSCE), was created to reduce tensions between the Soviet Bloc and the West, its founding document, the Helsinki Final Act of 1975, included a generally worded commitment to human rights and fundamental freedoms. The results took everyone by surprise. Dissidents in the East organized to monitor the human rights pledges made by their own governments. Sympathetic Westerners formed watchdog groups in support. One of these was a US group calling itself “Helsinki Watch.” Thus was born the powerful NGO today known as Human Rights Watch – a salient reminder of the catalyzing potential of international human rights agreements. The Eastern dissidents and their international backers used subsequent meetings of the CSCE to train a spotlight on communist repression. The “Helsinki Process” as it has come to be known

16 See the discussion and sources cited in Schimmelfennig, “European Regional Organizations, Political Conditionality, and Democratic Transformation in Eastern Europe,” East European Politics & Societies, vol. 21, no. 1 (Winter 2007): 126-41.17 Frank Schimmelfennig, Stefan Engert and Heiko Knobel, International Socialization in Europe (Houndmills, UK: Palgrave/Macmillan, 2006), p. 29.18 The Schimmelfennig, Engert, and Knobel volume (ibid.) is one example.19 See Richard Holbrooke, To End a War, rev. ed. (New York: Modern Library, 1999); and Peter Sinai-Davies, ed., International Intervention in the Balkans since 1995 (London: Routledge, 2003).8 8

contributed to the downfall of the communist system and strengthened the democratic orientation of the dissident movement, thus giving human rights a more prominent role in the political settlements that followed the fall of the Berlin Wall.20

The CSCE acquired a permanent institutional structure in the early 1990s, with a new name (OSCE) to mark the change. Under the 1990 “Charter of Paris for a New Europe” it affirmed (in highly eloquent language) a commitment to human rights, democracy, and the rule of law, and spelled out the human rights obligations of member states with new precision. Today it devotes itself primarily to the connected tasks of conflict prevention, democratization, and human rights.

Among its other activities, the OSCE mediates conflicts, organizes fact-finding missions, observes human rights conditions, advises governments how to run successful elections, monitors elections, teaches courses on democratization, and trains civil society organizations in international human rights law.21 The bulk of its staff is located in 19 field missions across Eastern and Southeastern Europe, Central Asia and the Caucasus. The work of most field officers is confined to “capacity building” tasks of the kind mentioned above, but where the international community has set up de facto protectorates, as in Bosnia and Kosovo, OSCE staff have taken on governmental roles.

Every year in Warsaw the OSCE convenes a two-week meeting to review the human rights performance of all member states. An innovative feature of the meeting is the equal participation of state delegations and human rights NGOs. For NGOs it is a rare opportunity to present criticisms directly to offending governments. According to a past participant, “the tone can often be very sharp between certain states not used to hearing democratic criticism, and NGOs like Human Rights Watch or the Helsinki Committee.”22

In 1992 the OSCE established a High Commissioner on National Minorities (HCNM) with the task of defusing ethnic tensions before they erupt into violent conflict. The initiative reflected the lesson of the Yugoslav tragedy (and many past conflicts) that ethnic wars, “once started are difficult to stop.”23 The HCNM seeks to identify potential conflicts throughout the region, and offers detailed recommendations for the just resolution of ethnic disputes through the elimination of discriminatory policies. The guiding philosophy is that of “integration” which avoids “the extremes of forced assimilation on the one hand and separatism on the other.”24 The legal authorities to which the HCNM appeals include the International Covenant on Civil and Political Rights and the Framework Convention on National Minorities of the Council of Europe.25

The Commissioner’s principal methods are information-gathering, advice, and diplomacy. Governments that resist his recommendations have been known to back down when NATO, the EU and the CE have adopted the recommendations as conditions of accession. It is

20 See Daniel C. Thomas, The Helsinki Effect (Princeton: Princeton University Press, 2001).21 On the work of the OSCE, see Janne Haaland Matláry, Intervention for Human Rights in Europe (Houndmills, UK: Palgrave, 2002), chap. 6. See also the organization’s web-site at http://www.osce.org/. 22 Matláry, Intervention for Human Rights in Europe, p. 142.23 Factsheet of the OSCE High Commissioner on National Minorities (2005) at http://www.osce.org/publications/hcnm/2005/05/14784_378_en.pdf.24 Ibid.25 Ibid.9 9

difficult to know how many wars have been prevented by the HCNM. However, knowledgeable observers believe that his efforts have been crucial.26 Thus the first HCNM, Max van der Stoehl, was widely credited with helping to defuse an extremely dangerous stand-off in the Baltic states in the 1990s between the dominant ethnic groups and the Russian minority that could have provoked military intervention by the Russian Federation.27

The Council of Europe (CE) was an early attempt to promote the economic and political integration of Europe. The broad aims announced in the 1949 Statute – to achieve greater unity, facilitate economic and social progress, and promote human rights and fundamental freedoms – papered over tensions between those seeking a federated Europe and those (led by the UK) favoring a more limited form of integration.28 As it turned out, economic integration and policy coordination would be entrusted to the European Coal and Steel Community, evolving into today’s EU. The greatest achievement of the CE remains the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), adopted in 1950 and entering into force in 1953 – the first human rights treaty in history, and still the most successful. Today the CE devotes itself almost exclusively to the promotion of human rights.

That mission has been sustained by painful memories and persistent fears. The motivation for founding the Council was both to prevent a revival of European fascism and to provide a bulwark against Soviet-inspired communism, which was then consolidating its grip on Central and Eastern Europe and posing a potential threat to countries further south and west. The 1970s brought the accession of Spain, Portugal, and Greece for whom Council membership both symbolized and safeguarded their recent liberation from dictatorship. (Greece had been an early member of the Council but withdrew after the military coup of 1967.) After the fall of the Berlin Wall the Council admitted a large group of Central and Eastern European countries whose long experience of communist rule instilled a similar appreciation for human rights. The Yugoslav tragedy of the 1990s soon put an end to complacent assumptions about the inevitability of peace and democracy following the end of the Cold War.

The principal statutory organizations of the CE are the Committee of Ministers and the Parliamentary Assembly.29 The Committee of Ministers, an intergovernmental body consisting of the member states’ foreign ministers and their permanent representatives, has the power to admit and expel members, open treaties for signature, and issue recommendations to member states. Under the ECHR, it oversees compliance with judgments of the European Court of Human Rights (ECtHR). The Parliamentary Assembly is a deliberative and advisory body whose members are chosen by and drawn from national parliaments in proportion to national population. The Committee of Ministers and Parliamentary Assembly promote human rights by means of public resolutions, reporting requirements, monitoring activities, and independent investigations. For example, it was the Parliamentary Assembly that commissioned the major June 12, 2007, report confirming the existence of torture centers run by the CIA in Poland and Romania. (Parliamentary Assembly member and Swiss senator Dick Marty authored the report.)

26 See Matláry, Intervention for Human Rights in Europe, op. cit., pp. 141, 156-57.27 See ibid., pp. 156-57. I discuss the case of Latvia below.28 A. W. Brian Simpson, “Britain and the European Convention,” Cornell International Law Journal, vol. 34 (2001): 523-554.29 On the work of the Council of Europe, see Matláry, Intervention for Human Rights in Europe, op. cit, chap. 5.10 10

Other CE institutions play an important role. A Commissioner for Human Rights, established in 1999, is given broad discretion to highlight serious patterns of human rights violations, promote human rights education, advise governments, and facilitate communications between member states and the Council. The so-called Venice Commission (officially the European Commission for Democracy through Law) develops expertise and offers advice on the adoption of democratic constitutions and legal practices. The CE Secretary General, among his other roles, functions as a public advocate for human rights.

According to the founding Statute, Council membership is limited to states that honor “the rule of law” and “human rights and fundamental freedoms,” and admission of new states has often been delayed until basic human rights standards are fulfilled. The Council thus applies a form of membership conditionality reminiscent of but less stringent than that of the EU and NATO. Standards have varied, and some admissions have been controversial. 30 The Council has also struggled over what do with already admitted states that revert to authoritarianism. In 1969, two years following a military coup in Greece, the Committee of Ministers was considering a motion for expulsion, when Greece preemptively withdrew.31 After the Turkish military coup of 1980, the Council came close to suspending Turkey’s voting rights in the Parliamentary Assembly and in fact barred from its sessions any individuals brought into the Turkish parliament by post-coup elections.32 In 1995 the Parliamentary Assembly recommended that Turkey be suspended from the Council for human rights abuses and violence against Kurds, but the Committee of Ministers chose not to act on the recommendation.33 In April 2000 the Parliamentary Assembly suspended the voting rights of Russia’s delegation to protest Russia’s violent policies in Chechnya, but reinstated them nine months later after a partial withdrawal of troops.34 Today, all countries in geographic Europe (including Turkey, Russia, and the Caucasus states) belong to the Council, with the exception of authoritarian Belarus.

Much Council activity deals with the adoption and implementation of treaties, now almost 200 in number. The European Court of Human Rights (ECtHR), until 1998 assisted by the European Commission of Human Rights, rules on alleged violations of the ECHR and its protocols. (The Court, like the former Commission and other principal CE institutions, meets in Strasbourg, France.) Many CE treaties do not involve the participation of the Court, however. These include the European Social Charter (encompassing social and economic rights), the Framework Convention on National Minorities, and the European Convention for the Prevention of Torture (ECPT). Though the ECPT receives its mandate from Article 3 of the ECHR, it

30 Ibid., pp. 119-21; and Schimmelfennig, Engert and Knobel, International Socialization in Europe, op. cit, p. 35.31 Greer, The European Convention on Human Rights, op. cit., p. 26.32 Ihsan Dagi, "Democratic Transition in Turkey, 1980-83:  The Impact of European Diplomacy," Middle Eastern Studies, vol. 32, no. 2 (April 1996). Moreover, Turkey, though next in order of rotation, had to give up its six-month presidency of the Committee of Ministers.33 Leo Zwaak, “Turkey and the European Convention on Human Rights,” in Monique Castermans-Holleman, Fried van Hoof, and Jacqueline Smith, eds., The Role of the Nation-State in the 21st Century: Human Rights, International Organisations and Foreign Policy (The Hague: Kluwer, 1998), p. 209.34 Michael D. Goldhaber, A People’s History of the European Court of Human Rights (New Brunswick: Rutgers University Press, 2007), p. 158.11 11

establishes a new organization, the European Anti-Torture Committee, to further the goal of combating torture and ill-treatment. (The ECPT is discussed below.)

Without doubt, the ECHR has had the most impact of any CE treaty.35 It is the foremost symbol of the Council’s commitment to human rights, and the primary point of reference for Council officials charged with defending human rights. The Convention recognizes the right to life, the right not to be subjected to torture or ill-treatment, the right not to be enslaved, the right not to be arbitrarily detained, the right to a fair trial, the right against retroactive punishment, the right to privacy, the right to freedom of religion, the right to freedom of expression, the right to freedom of assembly and association, the right to marry, the right to a remedy for the violation of one’s rights, and the right not to suffer discrimination in the enjoyment of one’s rights. Protocols adopted subsequent to the ECHR establish rights to private property, education, free elections, freedom of movement, equal treatment of spouses, the appeal of a criminal conviction, and compensation for wrongful conviction as well as rights against capital punishment, double jeopardy, imprisonment for debt, expulsion of citizens, arbitrary expulsion of aliens, and legalized discrimination. Ratification of the ECHR and the procedural protocols adapting its machinery has become a condition of admission into the Council of Europe. Ratification of the substantive protocols is not universally mandated, though there has been heavy pressure to ratify some of them (such as the prohibition of the death penalty).

The prestige of the ECHR owes much to the vigor of its Court. Originally, the Convention allowed member states to choose whether to grant individuals the right to bring complaints before the European Commission on Human Rights, which, if the accused state recognized the jurisdiction of the Court, could refer unresolved disputes to the latter body. The 11th Protocol to the Convention, entering into force in 1998, streamlined the process by abolishing the Commission, and making the jurisdiction of the Court and the right of individuals to bring complaints before the Court compulsory for all member states. (States had always been empowered to bring complaints against each other.) The 11th Protocol reflected and reinforced the growing clout of the Court, which had resembled a “sleeping beauty”36 during its early years, but delivered a series of bold decisions beginning in the late 1970s and saw a dramatic increase in its caseload in subsequent years. Today the Court rules on an average of 1000 cases each year. In over 90% of those cases it finds a violation on the part of the accused government.

The Court may hear a case when domestic remedies have been exhausted (art. 35). If it finds that a member state has violated the Convention, it can order financial compensation to the injured party (art. 41). Judgments of the Court are final and legally binding (arts. 44 and 46). To date, states have complied with all financial awards ordered by the Court, though sometime after a considerable delay.37 Moreover, states have generally altered their policies in response to adverse rulings. The Committee of Ministers monitors compliance with Court rulings, and brings pressure to bear on non-compliant states.38 Many states (especially the more established

35 There is a large literature on the Convention. Two excellent recent studies are Goldhaber, A People’s History, op. cit.; and Greer, The European Convention on Human Rights, op. cit.36 Goldhaber, A People’s History, p. 181. 37 Ibid., p. 6.38 Ibid., pp. 5-6.12 12

democracies) endeavor to conform their policies to the overall jurisprudence of the Court.39 That is, they heed decisions against other states, not only against themselves.

The impact of the European Convention system is widely recognized. Michael D. Goldhaber samples the reviews:

Among the world’s systems of human rights, it has been dubbed “the most advanced and effective”; “pre-eminent”; the “most successful”; certainly the most fully developed and the best-observed”; “no doubt the most developed and successful.” The diplomat and scholar Antonio Cassese proclaims, “[N]o other human rights treaty can claim the level of influence of the European Convention.” Another professor calls the Strasbourg tribunal “a sort of world court of human rights.”40

The decisions of the ECtHR have been described “as effective, for the most part, as national court rulings.”41

The Court would never have acquired its current power without the unflagging work of human rights NGOs.42 The overwhelming majority of cases are brought to the Court not by states, but by individuals with the support and representation of NGOs. Moreover, NGOs maximally exploit favorable decisions of the Court in legal, political, and educational venues, thereby magnifying its prestige. In Europe, as in the rest of the world, NGOs supply the information, publicity, petitioners, and political pressure needed for the actual functioning of formal human rights institutions. They breathe life into a system that would otherwise remain largely inert.43

Once nearly dormant, the Court now staggers under a huge caseload. The problem has assumed crisis proportions: today judgments are delivered an average of five years after initial filing.44 Such delays undermine the Court’s role as an agent of justice and guardian of rights. The Fourteenth Protocol (whose entry into force is held up by Russia’s refusal to ratify) introduces remedies that, in the view of most knowledgeable observers, fall short of a full solution. The problem is a matter of continuing debate.45

It would be a mistake, however, to identify the Convention wholly with the Court. The heart of the Convention is the set of human rights obligations it contains. States promise, when ratifying the Convention, to honor these obligations. (As the treaty’s first article declares, “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in … this Convention.”) States need not and should not wait for an adverse Court ruling to strive for complete adherence to the Convention. All 47 members have acted

39 D. J. Harris, M. O’Boyle, and C. Warbrick, eds., Law of the European Convention on Human Rights (London: Butterworths, 1995), p. 31.40 Goldhaber, A People’s History, op. cit., p. 2.41 Barry E. Carter and Phillip R. Trimble, International Law, 2nd ed. (Boston: Little, Brown, 1995), p. 309.42 Their role is vividly described in Goldhaber, A People’s History, op. cit.43 William Korey, “NGOs: The Power of Persuasion,” Ethics and International Affairs, vol. 13 (March 1999): 151-74.44 Greer, European Convention on Human Rights, p. 3845 Greer, ibid, recommends a promising set of reforms that include a European Fair Trials Commission (the most frequent violation addressed by the ECtHR, ironically, is unreasonable delay in trial proceedings) and National Human Rights Institutions to serve as clearinghouses between the Court and each government.13 13

appropriately, therefore, in incorporating the Convention into their domestic law. Ideally, the Court should have nothing to do, since states will have previously acted to correct and prevent possible violations of the Convention. As a tribunal of last resort, it serves to remind states of obligations they have previously assumed.

The full measure of a state’s commitment is whether its laws and policies comply with the text of the Convention. But as a measure of its desire to achieve compliance, we may also ask whether it has ratified the Convention, whether it has granted an individual right of petition to Strasbourg institutions, whether it has recognized the jurisdiction of the Court (after 1998 the last two steps were no longer optional), whether the Convention is formally incorporated into its domestic law, whether domestic incorporation is more than a formality (that is, whether domestic judges actually apply the Convention), and whether the national parliament screens proposed legislation for compatibility with the Convention. We should also ask whether Convention rights are echoed in a domestic bill of rights that is actually enforced by national judges. Both the UK and Ireland have recently incorporated the Convention into their domestic law, but this step was far more significant in the case of the UK, since it, unlike Ireland, lacks a domestic bill of rights.

* * * * * * * * * *

Together the EU, NATO, OSCE, and CE form a complex set of complementary and overlapping mechanisms for the promotion of human rights. The methods include standard-setting and codification, lawmaking and adjudication, exhortation and shaming, monitoring and reporting, investigation and inspection, training and education, capacity-building and advice-giving, dialogue and diplomacy, material rewards and membership incentives, conflict prevention and peacemaking. The key is not to confine oneself to one method, but to use several in combination.46

The potential of this strategy to effect fundamental change may be illustrated by the evolution of Latvia’s citizenship and election laws during the 1990s.47 At independence in 1991, the Latvian government limited citizenship to those who were Latvian citizens before 1940 and their descendents. The law excluded one third of the population – most of them ethnic Russians – from citizenship. Max van der Stoehl, the first OSCE High Commissioner on National Minorities, made it a priority to end this discriminatory arrangement. Over the next few years he made frequent visits to Latvia and drew up detailed proposals for reform. The Council of Europe made similar recommendations. In 1995 the Latvian government agreed to a partial liberalization of the law as the necessary price for admission into the CE. Further liberalization was enacted in 1998 as a condition of accession into the EU. The reforms provided citizenship to large numbers of people (most of them formerly stateless) and greatly speeded up the naturalization process.

Meanwhile, laws passed in 1994 and 1995 had decreed that only citizens demonstrating the highest level of proficiency in the Latvian language could run for local or national office. The laws were rescinded in 2002, however, after an adverse ruling from the European Court of Human Rights, and after the NATO Secretary General warned during a visit to Latvia that they 46 This is a theme of Schimmelfennig, Engert and Knobel, International Socialization in Europe, op. cit., as well as Judith G. Kelley, Ethnic Politics in Europe: The Power of Norms and Incentives (Princeton: Princeton University Press, 2004).47 The following discussion is drawn from Kelley, Ethnic Politics in Europe, ibid., pp. 1-2, 12-13, 17-18, 73-77, 84-93.14 14

jeopardized Latvia’s chance of admission into the Organization. Both the citizenship and election reforms were achieved despite strong domestic opposition. Thus did European regional organizations defeat a policy of legalized discrimination and defuse a dangerous set of ethnic tensions at the domestic and international levels.

The European human rights regime is not confined to regional mechanisms. Most European states (especially within the CE, and even more so within the EU) have ratified and given strong support to global treaties such as the International Covenant on Civil and Political Rights, the Torture Convention, and the Rome Statute of the International Criminal Court. (The European Parliament and the Parliamentary Assembly of the CE also encourage ratification of these treaties outside Europe.) Such treaties reinforce the regional agreements in important ways.

The Prevention of Torture in EuropeWhat is the state of human rights in Europe today? If we look at the 47 countries that have ratified the ECHR, we see persistent serious violations in some Southeastern European countries and former Soviet republics, grave though diminishing abuses in Turkey, serious problems in the Caucasus, a swing toward authoritarianism in Russia, and continuing terror (albeit a diminishing toll of lives) in Chechnya. But the great majority of member states offer a bright picture in comparison both to their own past and the world as a whole. Freedom House gives its strongest “Civil Liberties” score – 1 on a scale of 1 to 7 – to 31 of the 47. Six more receive a score of 2, and only four countries score below 3. (Russia and Azerbaijan are tied for last place with a score of 5 out of 7.)

Europe has come a long way since 1949, when dictators ruled Eastern and Central Europe and the Iberian peninsula. Today, in most European countries, a return to authoritarianism is unthinkable. The language of human rights is now deeply internalized in Europe’s national and international institutions, and four decades of human rights judgments from Strasbourg have altered public perceptions of the boundaries between acceptable and unacceptable government behavior.

In this section, I gauge some of achievements and failures of the European human rights regime through a brief examination of torture. Success is far from complete, for torture remains a serious problem. But, as I shall argue, the European human rights regime has contributed to the reduction of torture. It has exerted a significant and increasing, albeit still partial, restraint.

Although judicial torture was abolished throughout Europe by the end of the eighteenth century, ill-treatment often amounting to torture persisted in prisons, police stations, and military barracks. The imperial powers used severe forms of torture to maintain control of their overseas possessions.48 The unrestrained cruelties of Hitler’s Gestapo, Stalin’s NKVD, and the Japanese Kempeitai caused general horror, and became a powerful spur to the human rights revolution following World War II.49

The unequivocal language of the European Convention (which closely follows that of the Universal Declaration of Human Rights, adopted on December 10, 1948) was intended to draw a sharp break with the past. Beginning in 1951, ratifying states have pledged in Article 3 that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The 48 On the history of modern torture in Europe, see Edward Peters, Torture, expanded ed. (Philadelphia: University of Pennsylvania Press, 1999); and Darius Rejali, Torture and Democracy (Princeton: Princeton University Press, 2007).49 Rejali, Torture and Democracy, chapters 3-5.15 15

prohibition is stated in absolute terms: unlike most other rights asserted in the Convention, it admits no exceptions. The prohibition may not be suspended even during an emergency “threatening the life of the nation” (art. 15(2)). Moreover, it extends beyond torture to include all inhuman or degrading treatment or punishment, thus forbidding brutality in all its forms and removing the temptation to fiddle with the meaning of the word “torture.”

Moreover, for the first time in human history the prohibition was to be enforced by a permanent international Commission and Court. Originally, some countries chose not to grant the right of individual petition or to recognize the jurisdiction of the Court, but their number gradually declined over the decades, and by the 1990s individual petition and Court jurisdiction became obligatory for new countries wishing to join the CE.50 As we have seen, after 1998 the 11th Protocol eliminated the opt-out provisions entirely.

Britain, France, and Belgium kept their overseas empires until the early 1960s. France’s massive use of torture during the Algerian War of Independence may be one reason why it did not ratify the Convention until 1974. Belgium ratified the Convention in 1955, but chose to forego the option, available under Article 63 of the original treaty, of applying the Convention to its African colonies.51 Britain, becoming the first country to ratify the Convention in 1951, applied the Convention to most of its imperial territories,52 but did not recognize the right of individual petition or the jurisdiction of the Court until 1966, and then only for Britain and Northern Ireland.53 It came as a shock to the British government when in 1957 and 1958 Greece accused it before the Commission of human rights violations in Cyprus – then still a British colony. The second of these complaints, alleging violations of Article 3, was still being adjudicated when the independence of Cyprus in 1960 caused it to be dropped.54 In fact, British torture in Cyprus was part of a larger pattern. The “Five Techniques” which were to become notorious in Northern Ireland had been used during the final years of the British Empire not only in Cyprus, but also in Palestine, Malaya, Kenya, Cameroon, Brunei, British Guiana, Aden, Borneo, and the Persian Gulf.55

Ten years after the Cyprus cases it was Greece’s turn to be accused. Following the military coup of 1967 and the brutal repression that ensued, Greece was charged before the Commission with a long list of human rights violations in a joint complaint filed by Denmark, the Netherlands, Norway, and Sweden. In 1969 the Commission ruled that Greece had violated numerous Convention provisions, including Article 3. Over 300 pages of its report were devoted to accounts of torture. As the Committee of Ministers was considering a motion to expel Greece from the Council of Europe, Greece announced its own decision to withdraw.

The landmark case of Ireland v. UK addressed the “Five Techniques” that the British government had authorized in 1971 during its anti-terrorist campaign in Northern Ireland. The

50 Goldhaber, A People’s History, p. 5.51 Yearbook of the European Convention on Human Rights (European Commission of Human Rights: Documents and Decisions) 1955-1956-1957 (The Hague: Martinus Nijhoff, 1959), p. 51.52 Ibid., pp. 46-47.53 A. W. Brian Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford: Oxford University Press, 2001), p. 1099.54 Ibid., p. vii. 55 Malcolm D. Evans and Rod Morgan, Preventing Torture: A Study of the European Convention of the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (Oxford: Oxford University Press, 1998), p. 38.16 16

techniques referred to wall-standing, hooding, loud noise, food deprivation, and sleep deprivation, although these descriptions understate the brutality of the treatment actually used. The Commission, hearing the case in 1976, found that the treatment constituted torture. The Court, ruling on appeal in 1978,56 determined that the treatment did not amount to torture, but that it did constitute inhuman and degrading treatment and was therefore still a violation of Article 3.57 Accounts by the victims make it clear that the Commission made the more accurate assessment.58 The Court suggested as much in Selmouni v. France (1999), stating that “the Court considers that certain acts which were classified in the past as ‘inhuman and degrading treatment’ as opposed to ‘torture’ could be classified differently in future.” Though such comparisons are treacherous, the treatment inflicted on Selmouni does not seem obviously worse than that inflicted on the Northern Irish detainees.

Torture has long been a problem in Turkey, the subject of concerted campaigns by international human rights NGOs. Though a member of the Council of Europe since 1949, Turkey was to some degree sheltered from intergovernmental human rights criticism by Cold War politics. Two years after the 1980 military coup, five states (Denmark, Norway, Sweden, the Netherlands, and France) accused Turkey of torture before the Commission, but the case was withdrawn in 1985 because, some say, of diplomatic pressure from the United States.59 Turkey did not permit individual petitions until 1987, nor did it recognize the jurisdiction of the Court until 1990. Thereafter, a large number of cases were filed in Strasbourg, especially from the Kurdish southeast. 60 In the 1996 case of Aksoy v. Turkey, the Court issued its first finding of torture. (Aksoy was tortured in 1992, filed his case in 1993, and was assassinated by Turkish police in 1994.) Between 1995 and 2004 the Court issued 51 rulings against Turkey for violations of Article 3.61

Turkey was slow to take action, until its political landscape began to change at the turn of the century. In 1999 the government captured Abdullah Öcalan, leader of the insurgent Kurdish organization PKK, who called on his followers to abandon the use of violence. The same year the EU named Turkey an official candidate for membership in the Union, increasing the likelihood that eventual membership would be the reward of serious human rights reform. In the next few years, the government took steps to reduce the political power of the military and broaden rights for the Kurdish minority. Reforms accelerated after the Justice and Development

56 The UK had previously recognized the jurisdiction of the Court.57 Britain had ordered a halt to the Five Techniques in November 1971, but credible reports of their use surfaced throughout the 1970s. In 1979 laws were passed introducing new protections for suspected terrorists held in detention. See Evans and Morgan, Preventing Torture, p. 40.58 See John Conroy, Unspeakable Acts, Ordinary People: The Dynamics of Torture (Berkeley: University of California Press, 2000).59 Goldhaber, A People’s History, p. 132. 60 The European defense of Kurdish human rights has inspired Kurdish enthusiasm for Turkey’s integration into Europe. Stephen Kinzer reports that Kurds in southeastern Turkey harbor “a boundless, almost childlike” hope that the EU will rescue them from their troubles. (Kinzer, “Kurds in Turkey: The Big Change,” New York Review of Books, January 12, 2006.) European integration offers a non-violent alternative to the path of armed struggle, presented by the PKK.61 Thomas W. Smith, “Leveraging Norms: The ECHR and Turkey’s Human Rights Reforms,” in Zehra F. Kabasakal Arat, ed., Human Rights in Turkey (Philadelphia: University of Pennsylvania Press, 2007), p. 268.17 17

party won national elections in 2002. New laws further enhanced civilian control of the military, expanded human rights training for the police, decreased the period of incommunicado detention, banned blindfolding of prisoners, and beefed up prosecution of officials guilty of ill-treatment. Human rights organizations agree that torture has decreased in Turkey, though it remains a severe problem.62

Russia remains a problematic case. A new Criminal Procedure Code, enacted in 2001, established several safeguards intended to prevent torture. According to an Amnesty International report from November 2006, the measures have had some positive effects, but police still regularly use torture to extract confessions from criminal suspects.63 Lack of police training, pressure to produce convictions, and new ways of circumventing the anti-torture safeguards have lessened the impact of the 2001 reforms. In the meantime, torture remains widespread and systematic in Chechnya,64 although the slowing pace of the conflict appears to have decreased the number of new victims.65 In March 2007 the European Anti-Torture Committee took the rare step of issuing a public statement to condemn Russian authorities for allowing the continued use of torture in Chechnya.66 Moscow denounced the criticism as “politically motivated.”67 Human rights advocates have protested the feeble response of the EU and the Council of Europe to continuing abuses in Chechnya.68 Conventional wisdom holds that resurgent Russian nationalism, European dependence on Russian gas, and the lack of the incentive of EU membership are among the factors that reduce the leverage that European human rights institutions can bring to bear on Russia.

The European Court of Human Rights has by now developed a rich jurisprudence on Article 3. The prohibition against all inhuman and degrading treatment creates a wide buffer around torture. Among the practices held by the Court to violate Article 3 are: disproportionate use of force during arrest, inadequate accommodations for detainees with physical or mental disabilities, inadequate medical care for detainees, housing of prisoners in overcrowded or unsanitary conditions, complete sensory deprivation, aggressive strip-searching, expulsion or

62 This information is taken from ibid, pp. 267-70; Goldhaber, A People’s History, op. cit., pp. 131-32; and Schimmelfennig, Engert and Knobel, International Socialization in Europe, op. cit, chap. 7.63 Amnesty International, “Russian Federation: Torture and Forced ‘Confessions’ in Detention,” November 22, 2006. Available at http://www.amnesty.org.uk/news_details.asp?NewsID=17170. See also Andrew E. Kramer, “Amnesty Says Russian Police Torture Suspects,” New York Times, November 222, 2006. 64 Human Rights Watch, “Chechnya: Research Shows Widespread and Systematic Use of Torture,” November 13, 2006. Available at http://hrw.org/english/docs/2006/11/13/russia14557.htm. 65 “Human rights activists note drop in kidnappings in Chechnya,” Interfax (reproduced by BBC Worldwide Monitoring), July 27, 2007.66 http://www.cpt.coe.int/documents/rus/2007-17-inf-eng.pdf.67 “Anti-Torture Committee Line May Sour Council of Europe's Image in Russia,” Russia & CIS General Newswire, April 3, 2007.68 Alexander Petrov, “If Not the EU, Then Who?,” International Herald Tribune, November 24, 2006; Kenneth Roth on Europe’s Performance Protecting Human Rights on the Continent and Beyond: Speech to the Parliamentary Assembly of the Council of Europe. Strasbourg, April 19, 2007, available at http://hrw.org/english/docs/2007/04/20/russia15743.htm. 18 18

threatened expulsion to countries where a person faces a significant danger of ill-treatment, premeditated destruction of homes without warning and without respect for the feeling of the homeowners, capital punishment following an unfair trial, corporal punishment of children by judicial authorities, and inadequate measures to prevent the domestic abuse of children.69 Rulings of Article 3 violations have been issued not only against countries such as Turkey, Russia, Georgia, Bulgaria, Ukraine, and Moldova, but also Austria, Cyprus, Estonia, Finland, France, Greece, Italy, Latvia, Lithuania, the Netherlands, Slovenia, Spain, Switzerland, and the UK.70

Twenty years ago the Council of Europe created a remarkable new institution to help combat torture. The Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, entering into force in 1989 and now ratified by all CE members, sets up a Committee (informally the “Anti-Torture Committee”) with the power to visit all places under the jurisdiction of member states where individuals are deprived of their liberty.71 The purpose of the visits is to identify practices that violate Article 3 of the ECHR or create conditions conducive to its violation. In periodic visits, planned months in advance, and ad hoc visits, announced on short notice, the Committee enjoys unlimited access to detention centers within the territory of the host state. After each visit, it collects its findings and recommendations in a report that serves as the basis for dialogue. Reports are confidential, but in case of a host state’s non-cooperation or refusal to improve the situation the Committee can vote by a two-thirds majority to issue a public statement listing its concerns. The vast majority of states now publish the Committee’s reports voluntarily. (Russia is the only country that refuses to publish the reports.)72 Thus one can, for instance, easily download the Committee’s report on its December 7-14, 2005, visit to Turkey, and read about particular abuses or suspicious practices in specific locations and the officials who did or did not raise obstacles to the Committee’s investigations.73

The Committee has become a significant actor on the human rights scene. Strongly worded public statements on Turkey released in 1992 and 1996 confirmed widespread police torture and criticized the authorities for not halting its use. The statements increased pressure on Turkey to make genuine reforms. The Court increasingly refers to Committee reports in its rulings, and major criticisms issued by the Committee often find their way into the media. The two leading scholars of the Anti-Torture Committee give it high marks, praising the rigor of its investigations and quality of its reports and noting that many of its recommendations have been

69 See Clare Ovey and Robin C. A. White, Jacobs and White, The European Convention on Human Rights, 4th ed. (Oxford: Oxford University Press, 2006), chap. 5.70 For a list of recent ECtHR judgments, classified by subject, see http://www.echr.coe.int/ECHR/EN/Header/Case-Law/Case-law+information/Subject+matter+of+judgments/.71 For a gripping insider account of the work of the Committee, see Antonio Cassese, Inhuman States: Imprisonment, Detention and Torture in Europe Today, trans. Jennifer Greensleaves (Cambridge: Polity, 1996). For comprehensive analysis, see Evans and Morgan, Preventing Torture, op. cit; and Rod Morgan and Malcolm Evans, Combating Torture in Europe (Council of Europe Publishing, 2001).72 Amnesty International, “Russian Federation: Torture and Forced ‘Confessions’ in Detention,” op. cit.73 http://www.cpt.coe.int/documents/tur/2006-30-inf-eng.htm.19 19

implemented by the countries concerned.74 It has produced a wealth of information, threatening the secrecy on which abuse depends. While nothing of this nature can be proven, common sense indicates that the ECPT has contributed significantly to the prevention of torture and ill-treatment.

Fear of international terrorism following the attacks of September 11, 2001, and exacerbated by the Istanbul, Madrid, and London bombings, has put pressure on human rights, including the right not to be subjected to torture or ill-treatment. Press articles, now confirmed by the Marty report for the Council of Europe, have revealed that between 2003 and 2005 the CIA used secret prisons in Poland and Romania to torture suspected members of Al Qaeda and that several European governments assisted the US policy of extraordinary rendition under which terrorist suspects were shipped to be tortured overseas. The CE did not prevent these acts, but it helped bring them to light, and made them the focus of intense criticism by regional and national officials. It is safe to say that the European human rights regime prevented what would otherwise have been an even worse unraveling of human rights following September 11. Ireland v. UK established the bedrock principle that ill-treatment, let alone torture, may not be used even for the purpose of combating terrorism. The principle, though skirted, is not publicly defied. Contrast this to the United States, where authorities openly approve coercive interrogation, licensing methods that in fact constitute torture.75 The European human rights regime has made a difference.

Recent judicial decisions in the UK show how the European regime has exerted a restraining influence on public officials in the campaign against international terrorism. The UK Human Rights Act, entering into force in 2000, authorizes British judges to enforce provisions of the ECHR and even to challenge Parliamentary legislation found to be in violation of the Convention. In December 2004 the Appellate Committee of the House of Lords ruled that a law permitting the indefinite detention without trial of suspected foreign terrorists violated the Convention prohibition on discrimination (because the law did not extend to British citizens).76 In December 2005 it held that evidence obtained by torture could not be used in judicial proceedings, basing its ruling partly on the Convention.77 In June 2007 it ruled that the ECHR applied to UK detention facilities abroad, thereby requiring the government to investigate

74 Morgan and Evans, Combating Torture in Europe, op. cit., pp. 155-59.75 See President Bush’s much publicized speech of September 6, 2006, unveiling the proposed Military Commissions Act. See also my discussion in “Playing by Our Own Rules: How U.S. Marginalization of International Human Rights Law Led to Torture,” Harvard Human Rights Journal, vol. 20 (Spring 2007): 89-140.76 A v. Secretary of State for the Home Department, House of Lords, December 16, 2004, [2004] UKHL 56. The Lords did not, however, invalidate indefinite detention on principle. Parliament responded to the judgment by passing the Prevention of Terrorism Act of 2005, which authorizes a complicated system of “control orders” (restrictions on individual liberty up to the imposition of house arrest) for both citizens and non-citizens suspected of terrorist activity. Judges have invoked the ECHR to quash control orders in particular cases, but without terminating the system as a whole. (See Clive Walker, “Keeping Control of Terrorists without Losing Control of Constitutionalism,” Stanford Law Review, vol. 59 [March 2007] pp. 1395-1463.) In October 2007 the Lords ruled that the imposition of an 18-hour curfew and the authorization of control orders based solely on secret evidence were both violations of the ECHR. Secretary of State for the Home Department v. MB (FC) (Appellant), October 31, 2007, [2007] UKHL 46.20 20

credible allegations of ill-treatment by its armed forces in Iraq.78 In April 2007 an immigration court blocked a deportation order against two Libyan nationals with alleged ties to terrorist organizations; the court held that the deportation would violate Article 3 of the European Convention, because the two men ran a serious danger of torture if returned home, notwithstanding assurances from the Libyan government that it would not subject them to ill-treatment.79 Reflecting on these developments, the Lord Chief Justice of England and Wales has stated that “the Human Rights Act has unquestionably circumscribed both the legislative and the executive action that would otherwise have been the response to the outbreak of global terrorism that we have seen over the last decade.”80

In addition to the abovementioned measures, several European countries have ratified the Torture Convention, its Optional Protocol (which sets up a visiting regime somewhat similar to that of the ECPT), and the Rome Statute of the International Criminal Court. The Rome Statute defines torture as a war crime and (when committed as part of a widespread or systematic attack on a civilian population) a crime against humanity, and it gives the ICC jurisdiction over citizens and officials of member states. All but one of the 27 EU countries and 39 of the 47 CE countries have ratified the Rome Statute.

The Virtues of MultilateralismThe system for the protection of human rights in Europe is a collective achievement, built over a long period of time. Successive protocols have strengthened the procedural mechanisms and expanded the substantive obligations of the European Convention of Human Rights, just as the Convention has widened its geographic reach from 13 to 47 countries. The burgeoning jurisprudence of the Court has raised the minimum standard of acceptable state conduct, new human rights treaties have supplemented the ECHR and its protocols, and non-judicial means of securing human rights have been developed. The CE and the OSCE have focused ever more exclusively on human rights, while the EU and NATO have made the protection of human rights one of their central goals, and all four organizations have become skilled at piggy-backing on each other’s accomplishments. In much of the continent, domestic courts have become more assertive defenders of human rights, while government officials (legislative, executive, and judicial) make increasing reference to the ECHR. The representative assemblies of the EU, CE, and OSCE denounce countries by name for their human rights failings. The fact that national legislators and cabinet officials help staff the governing organs of the regional organizations reinforces the feedback loop between international institutions and individual states.

We have here a story of continual experimentation, adaptation, and improvement. Innovations have almost always taken the form of strengthening, rather than weakening, the

77 A v. Secretary of State for the Home Department, House of Lords, December 8, 2005, [2005] UKHL 71. As Kim Scheppele argues, however, the decision contains loopholes that limit its practical impact. See Scheppele, “The Metastasis of Torture: Circulating Coerced Information in the Anti-Terror Campaign.”78 Al-Skeini v. Secretary of State for Defence, House of Lords, June 13, 2007, [2007] UKHL 26.79 DD and AS v. Secretary of State for the Home Department, Special Immigration Appeals Commission, April 27, 2005, Appeal No: SC/42 and 50/2005.80 The Rt. Hon. The Lord Phillips, Lord Chief Justice of England and Wales, “Terrorism & Human Rights,” University of Hertfordshire Law Lecture, October 19, 2006, available at http://www.judiciary.gov.uk/publications_media/speeches/2006/sp191006.htm. 21 21

enforcement of human rights. The result has been the transformation in the political culture of an entire continent. What explains this remarkable evolution?

A principal reason, I believe, is the collective nature of the enterprise. Europe demonstrates that states can do far more to strengthen domestic human rights by acting in concert than by acting apart. Certain vital protections of human rights are available only at the international level. That is why democratic states need international human rights institutions as much as international human rights institutions need democratic states. In the following paragraphs I identify some of the unique benefits of a multilateral approach.

A mutual pledge. When a country joins an international compact to protect human rights (whether a formal treaty like the ECHR or an informal agreement like the Helsinki Charter), it creates a new class of promisees. The domestic contract is welded to an international contract; leaders must answer not only to citizens and citizens to each other, but leaders and citizens to leaders and citizens of other countries.81 The international contract adds solemnity to domestically affirmed human rights. It reminds citizens that their rights are also universal human rights, which other countries properly care about and are pledged to protect. Citizens, knowing that their rights have an additional set of guardians, can assert their rights with greater confidence.82

An international pledge authorizes countries to hold each other to their human rights commitments. This involves more than reminding countries of the verbal formulas in the international agreements they have ratified. It means ensuring that countries follow through on these commitments, studying their implications, adhering to their full meaning, and applying them in all circumstances. The ECtHR is only the most visible of the many European institutions that carry out this task.

The speck in my neighbor’s eye. If there is hope for humanity, it lies in our talent for perceiving the faults of others. A democracy should harness this talent by inviting other countries to identify its human rights failings. An international human rights regime institutionalizes this service and makes it reciprocal. We exercise our talent for criticizing others, on condition that they return the favor. This arrangement is on full display in the European system.

Leading by example. Just as parents must clean up their own act to encourage good behavior in their children, so countries must honor the human rights standards they expect others to follow. International institutions use the altruistic desire of certain countries to improve other countries as leverage for improving the altruistic countries themselves. Several countries that ratified the ECHR did so in order to promote human rights abroad, not appreciating the domestic implications of their decision. Discussing the UK, Brian Simpson writes: “The negotiation of the ECHR was conceived to be an aspect of foreign, not domestic, policy. It was not until the two Cyprus cases of 1956 and 1957 that it was understood in official circles that the U.K. had committed itself to an institutional scheme of human rights protection from which it was politically impossible to disengage, and that this scheme could have serious effects on the

81 Here I mean citizens in the moral rather than legal sense. I include residents without formal citizenship status, because governments are bound to respect their human rights also, and because they (the non-citizen residents) have a duty to respect the human rights of others.82 This dynamic emerges powerfully in Goldhaber’s stories of the individual plaintiffs behind the landmark cases of the European Court of Human Rights. See Goldhaber, A People’s History, op. cit.22 22

activities of government…. Life, for the authorities, was never going to be quite the same again.”83

The Dutch made the same calculation: “During the parliamentary discussion on the approval of the European Convention, the government gave as its opinion that the Convention’s effect would be negligible as domestic law already complied fully with it.”84 The prediction was mistaken. Not only has the European Court ruled against the Netherlands on several occasions, but Dutch judges routinely cite the Convention in domestic cases. The fact that under Dutch law national judges can use the Convention but not the national bill of rights to overturn domestic legislation has magnified its importance. These are only two examples of a pervasive pattern. (A similar logic is clearly at work in the emergence of the European Anti-Torture Committee.)

Virtuous rivalry. Most states do not want to have a reputation as human rights violators. Close international monitoring and evaluation of a state’s human rights policies increases pressure to enhance its reputation by actually having a good record. In the European system, reputations are also affected by a state’s dedication to preserving the system itself, and by the importance it gives human rights in its foreign policy. Some states – especially Norway, Sweden, Denmark, and the Netherlands – have made it a matter of pride to promote human rights at the global and regional level (and therefore domestically as well).85 International human rights institutions can exploit the rivalry between image-conscious states none of which wants to be seen as less dedicated than the others.

Mutual learning and assistance. International human rights institutions allow countries to share experience, expertise, and resources. We must remember that the international promotion of human rights is not always or even primarily an adversarial process. Many states genuinely want to improve their human rights records; but they need to learn how, and they need the resources that will enable them to do so. Capacity-building, education, and dialogue take up much of the actual work of the European human rights regime, and explain much of its success.

They made me do it. When citizens or officials express opposition to human rights protections, the domestic guardians of human rights can reply that their hands are tied. International agreements become what game theorists call a “pre-commitment strategy.” International institutions take on the role of a strict cop or stern parent whose purpose cannot be altered. Antonio Cassese suggests that this is one reason for the success of the ECPT. In many European countries, he notes, “there are bureaucratic barriers to inspection; the force of tradition is a hindrance, but so is public opinion – since there is a general clamour to ensure that ‘criminals’ receive the severest punishment, but little interest in possible abuse to which they can be subjected. This may be why these countries have eventually realized that it is easier to delegate the monitoring of places of detention to an international body.”86

Showing up is nine tenths of success. After decades of deepening institutionalization, the promotion of human rights occupies the attention and structures the daily work of large numbers of regional and national officials. (Some work on human rights full time; others must give it a

83 Simpson, “Britain and the European Convention,” op. cit. pp. 553-54.84 Leo Zwaak, “The Netherlands,” in Blackburn and Polakiewicz, eds., Fundamental Rights in Europe, p. 595.85 See Floribert H. Baudet, “The Netherlands and the Rank of Denmark: Prestige as Stimulus for Human Rights Policies,” in Carole Fink, ed., Les droits de l’homme en Europe depuis 1945/Human Rights in Europe since 1945 (Bern: Peter Lang, 2003).86 Cassese, Inhuman States, op. cit., p. 7.23 23

large share of their attention because of the growing practice of human rights “mainstreaming.”) These officials form a powerful and knowledgeable constituency, not easily circumvented, much less dislodged. They are committed for professional and often idealistic reasons to doing their job and doing it well. A large human rights bureaucracy is another legacy of strong international human rights institutions. So is the emergence of a powerful NGO sector devoted to human rights.87

Others to lift me when I fall. A country that has been committed to human rights in the past may one day elect a government indifferent or even hostile to human rights. The monitoring and enforcement mechanisms of the European human rights regime help prevent such a government from effecting a permanent or even temporary erosion of human rights. The fact of separate electoral systems in different countries means that a hostile government is unlikely to pull down the regime down as a whole, whereas there is a much greater chance that the regime will stop such a government from fulfilling its anti-rights agenda. Other countries can band together to head off the threat, with the crucial help of the system’s powerful supranational institutions. They can coax the errant state back onto the democratic path, knowing that one day they may need similar assistance themselves. It is a crucial virtue of the system that, in proper Madisonian fashion, it separates decision-making power from partisan allegiances and strong group identities.

Why Strong International Human Rights Institutions Do Not Entail World GovernmentThe collective protection of human rights envisages strong international institutions, but not world government as ordinarily conceived. States must retain independent agency for the system to work; the positive dynamics described above could not otherwise occur. In the European model, states take responsibility for the protection of human rights within their own and one another’s jurisdictions. While human rights require the protection of strong international institutions, the power of those institutions needs to be balanced as well as buttressed by similarly powerful states. An effective system of checks and balances at the international level requires the preservation of independent states.

The European human rights regime has depended on individual states, which have not only created, supported, and staffed the regime’s constituent institutions, but have also acted as leaders, innovators, and critics on behalf of human rights. They have monitored one another’s human rights performance, as well as that of the regional organizations, which have monitored their performance in turn. At crucial moments, states have reoriented regional organizations towards human rights. A prominent example is the 1974 “Solange I” decision of the German Constitutional Court, warning that Germany would not be bound by any law of the European Community that contravened fundamental rights guaranteed under the country’s Basic Law. The decision prompted the ECJ to apply human rights principles in its jurisprudence, and thus prepared the ground for Article 6 of the current EU Treaty, making respect for human rights a binding obligation for the EU, the ECJ, and EU member states.88

It also bears noting that the European human rights regime embraces not one but several regional organizations. Like the individual states, they, too, exercise concurrent responsibility for human rights. They have achieved far more as separate organizations, reinforcing each other’s 87 Rachel Cichowski, The European Court and Civil Society (Cambridge: Cambridge University Press, 2007).88 See Shirley Williams, “Human Rights in Europe,” in Samantha Power and Graham Allison, eds., Realizing Human Rights (New York: St. Martin’s, 2000), pp. 24 24

contributions, than if they had been consolidated into a single organization. Decentralization offers several advantages. The organizations perform different but complementary roles, provide a rich menu of resources for human rights advocates, and preserve flexibility in the system as a whole. Over the years, states and civil society actors have created new regional organizations and reformed old ones as the need has arisen. Such institutional innovations and improvements are made easier by the decentralized nature of the regime.

These remarks cannot be regarded as a conclusive argument for rejecting world government, because they are limited to the question of human rights, civil and political rights in particular. It may be argued that other global problems – such as global climate change, the menace of nuclear weapons, and world poverty – can be satisfactorily addressed only by means of a greater centralization of world power. I cannot comment on such claims here. My hope is that, if such claims are true, it may nonetheless be possible to combine a high degree of political centralization where some issues are concerned with a lower degree of political centralization where other issues, such as civil and political rights, are concerned. Such hope may not be utopian: the idea of varying centralization according to issue area is familiar to most national political systems as well as the European Union.

ConclusionThe European experiment – like the eighteenth-century American experiment that helped inspire it – applies the Madisonian insight that individual liberty depends on the dispersal of power and duplication of responsibility. Human rights are too important to be left to the sole care of one’s government. They require the protection of multiple guardians. Indeed, as I have argued, shared guardianship of human rights is fundamental to democracy itself.

The European experience bears lessons for the entire world. If we are serious about democracy at the domestic level, we should cultivate strong international human rights institutions. Such institutions preserve the checks and balances on which democracy depends. They embody the principle that we all share responsibility for the protection of human rights. A successful human rights regime is one in which state responsibility for protecting human rights is assisted, encouraged, monitored, and enforced by international institutions operating with the watchful support of democratic states and civic associations.

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