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Violations of the European
Convention on Human Rights:
Does Post-Communism Matter
Steven D. Roper
Department of Political Science
Eastern Illinois University
and
Lilian A. Barria
Department of Political Science
Eastern Illinois University
Research Questions
This research examines violations of the European
Convention on Human Rights (ECHR) and whether
there is a difference in the violation levels of postcommunist to other ECHR member-states.
1.
What factors are associated with state’s violating
international agreements and how can organizations
generate compliance among member-states?
2.
Is the label “post-communist” relevant today? Are there
differences between post-communist and other European
states?
Framing the Debate: Contending
Theories about Compliance
1.
The enforcement theory of compliance posits that
sanctions and monitoring yields a reduction in violations
(Simmons 2000; Cortright and Lopez 2002).
2.
The managerial theory suggests that conformity is due to
increasing capacity, transparency and simplification in
rules (Chayes and Chayes 1993, 1995)
3.
The constructivist theory argues that states cease to
violate because of their domestic culture of lawabidingness and support for the rule of law (Gibson and
Caldeira 1996).
Framing the Debate: Contending
Views of Post-Communism
1.
The historical legacies view maintains that the postcommunist experience affects the current behavioral
characteristics of states (Powers and Cox 1997).
2.
The post-post-communist view maintains that
differences among states is much less due to the
communist experience—country differences are more
nuanced (King 2000).
3.
The post-communist cleavage is more of function of
differences within the post-communist grouping (East
Europe versus post-Soviet communism, Popova 2012).
The European Human Rights
System
•
The European Convention for the Protection of Human
Rights (ECHR) entered into force in 1953. The
Convention requires that all contracting states implement
and enforce its rights provisions in their domestic legal
system.
•
In the original system, three institutions were responsible
for enforcing the obligations undertaken by memberstates: The European Commission of Human Rights, the
European Court of Human Rights (ECtHR) and the
Committee of Ministers of the Council of Europe.
The European Human Rights
System
•
In 1998, a series of major reforms ended the
Commission as a separate entity and folded many of its
functions into the Court. Citizens now had the ability to
directly petition the ECtHR.
•
States delegate to the Court the ability to decide if the
Convention has been violated and to pass binding
judgments requiring states to alter their practices. When
a case is decided by the Court, it can only rule on
whether an individual has had his or her rights violated
by a member-state—it cannot over-rule national
decisions or annul national laws.
The European Human Rights
System
•
The ECtHR can impose three forms of penalties:
1.
Just satisfaction: Typically, this penalty takes the form of
some kind of payment to the victim.
2.
Individual measures: These measures are meant to put
the victim into the same position enjoyed prior to the
violation (e.g., changing decision of a domestic court).
3.
General measures: The Court can also require other
measures to prevent further violations associated with a
specific judgment (change in the domestic legal code).
Operationalizing Theories in the
Context of the ECtHR
•
We examine violations of the ECHR and judgments of
just satisfaction, individual and general measures to
determine the state characteristics associated with each
type of violation and whether there is a difference in the
violation levels of post-communist to other ECHR
member-states.
Operationalizing Theories in the
Context of the ECtHR
1.
Enforcement Theory: Is based on a cost/benefit analysis
in which the operationalization of the cost is the
member-state’s economy (GDP) for just satisfaction and
the incorporation of international law (monism/dualism)
for individual and general measures.
2.
Managerial Theory: Maintains that over time, members
develop greater institutional capacity to fulfill their
obligations. Thus, we include a variable for time
measured as the number of years member of the Council.
3.
Constructivist Theory: Constructivists assume that states
cease to violate because of their support for the rule of
law. We include a composite measure of rule of law.
Operationalizing Theories in the
Context of Post-Communism
1.
Enforcement Theory: We regard GDP as a surrogate for
post-communism. A positive relationship between GDP
and the judgment indicates a difference between postcommunist and other members. Approximately 90% of
post-communist members are monist, and view this
variable as an appropriate indicator of sovereignty costs.
2.
Managerial Theory: Given that post-communist states
did not join the Council until the 1990s, these members
should be more likely to violate the Convention.
3.
Constructivist Theory: Post-communist states which
exhibit less of a rule of law culture should violate the
ECHR more often than other members.
Research Design and Data
•
Our data set includes all cases in which a judgment was
rendered by the Court from 1998-2005. We code for
every protocol and article in which there was a
judgment. Our dependent variable measures whether the
state was found to be in violation of the Convention
(dichotomous dependent variable).
•
We create three models for each form of the dependent
variable based on the type of judgment rendered by the
Court (e.g., just satisfaction, individual and general
measures). We use pooled cross-sectional time series and
logit estimation to assess factors associated with the
Court’s judgment.
Research Design and Data
•
Our three models (e.g., enforcement, managerial and
constructivist) include a similar independent and control
variables. All three models include a dichotomous postSoviet independent variable which codes for all postcommunist states which were a former Soviet Republic
and also a population control theorizing that population
size may influence the number of cases brought before
the ECtHR.
Results
Results
Results
Results
Conclusions
•
When the costs of sovereignty are the lowest and defined
financially (i.e., just satisfaction), only the enforcement
theory is supported. For those states in which the
financial sanction is the most costly, violation levels are
lower. Our findings show that post-communist states are
less likely to have a judgment of just satisfaction.
Conclusions
•
In higher sovereignty costs situations such as the
imposition of individual and general measures, technical
expertise and years of membership become important
deterrents to violations. We interpret this to mean that as
sovereignty costs increase, the behavior of states change.
Post-communist countries violate as a percentage more
frequently as these states do not have the same capacity
of other members.
Conclusions
•
When the nature of the sanction is financial, postcommunist states respond by complying to a greater
degree than other members. However when the sanction
changes to take on a sovereignty characteristic in which
compliance is much more a function of technical
expertise, post-communist countries violate more
frequently. These states do not have the same capacity of
other members.
•
Equally importantly, our findings show that differences
among post-communist states are just as important as
difference between them and other states.