Human Rights Quarterly

Does Membership Have Its Privileges? :
Entrance into the Council of Europe and Compliance with Human Rights Norms

Pamela A. Jordan

[Groups]

Abstract: This article examines the role of the Council of Europe in promoting human rights in twenty-one former Soviet bloc countries. Using three cases, the author argues that constructivist approaches best inform the process of norm diffusion in countries of high compliance (Latvia), while neoliberal and neorealist approaches better explain why norm diffusion is less successful in medium (Croatia) and low-compliance (Russia) countries. She concludes that the Council decided it is more effective to persuade new entrants to conform to European human rights standards as members than to wait years until they have reached a high level of compliance before rewarding them with membership.

I. Introduction

In the past twenty years, many researchers have focused on how and why states observe regional human rights norms, a topic that has become more central to international relations since the end of the Cold War. This article examines the role of the Council of Europe in promoting and protecting [End Page 660] human rights. Founded in 1949, the Council of Europe has close to 200 legally-binding European treaties or conventions, including the European Convention for Human Rights and Fundamental Freedoms, the European Convention for the Prevention of Torture, and the Framework Convention for the Protection of National Minorities.

According to one researcher in the human rights field, Jack Donnelly, human rights agencies based inside international and regional organizations sometimes benefit from this arrangement because they "can draw on the prestige and influence of the broader organization." ¹ He also argues that, due to the fact that member states have any number of reasons for belonging to an intergovernmental organization (IGO), "they may be constrained in resisting the organization's human rights initiatives." ² In the case of the Council of Europe, member states have identified themselves with a human rights, pro-democracy approach. Clare Ovey and Robin C.A. White, for example, write that "[t]he creation of the Council of Europe and the adoption of the Convention on Human Rights are an acknowledgment that the protection of human rights is viewed as an indispensable element of European democracy." ³

Although the human rights norms outlined in the European Convention for Human Rights and Fundamental Freedoms (Human Rights Convention) are supranational, as is the European Court of Human Rights (ECHR) that interprets them, the Council of Europe itself remains an international, as opposed to supranational, organization. Not all Council members have uniformly or consistently observed the organization's main goals in practice, or ratified all its conventions. The Council of Europe has "[tread] a delicate path between developing and enhancing the standards inherent in the [Human Rights] Convention text, and respect for the choices which individual States must make in the face of specific situations." ⁴

The Council of Europe was the first European intergovernmental organization to begin admitting Eastern European states and former Soviet republics. It now defines Europe beyond the traditional geography to areas that it considers culturally part of the continent, including the Caucasus. The present secretary-general of the Council of Europe, Walter Schwimmer, argues that all of the countries of Europe can develop "shared values." ⁵ [End Page 661] Over the past two years, the Council of Europe has sponsored colloquies on European identity. What participants have concluded, and what Schwimmer's speeches have emphasized, is that the organization should promote a European community of values that would extend beyond the confines of political and economic interests. At one such colloquy, Schwimmer said that cultural diversity, including tolerance and mutual respect, were the foundations of a common identity. ⁶ In promoting these goals, the Council's longer-standing members think that it is better to draw former communist countries into dialogue than to isolate them.

Many of the official statements issued from the leaders of the new member states have contained pro-European sentiment. For example, in 1997 (when Georgia had only special guest status), Georgian President Eduard Schevardnadze stated that "[w]e are reuniting with Europe, as an offshoot grafted into a life-giving stock, to contribute to the salvational mission of European culture and find within it our own salvation." ⁷ However, and not surprisingly, the rhetoric does not always accurately reflect the domestic behavior of political leaders. Jeffrey T. Checkel, who researches social learning processes around issues of citizenship in the Council of Europe, has written that, "where there is a mismatch or lack of cultural match between systemic and institutionalized domestic norms in a given policy area, I would predict a drastic slowing in learning because of cognitive dissonance or framing problems." ⁸ In other words, former Soviet bloc countries that have joined the Council are not all going to adapt to human rights norms at the same pace.

For most new entrants, Council membership is a stepping-stone. Hence, members seem to join for instrumentalist reasons: to 1) legitimize new regimes, and 2) set the groundwork for future membership in the European Union (EU) and/or NATO. However, member states in the Council of Europe will not qualify to enter the EU unless they can satisfy the Council that they are in compliance with the norms outlined in the Human Rights Convention. ⁹ The Human Rights Convention also includes thirteen protocols. The [End Page 662] two basic requirements of membership are to ratify the Human Rights Convention as well as Protocol No. 6, which requires members to abolish the death penalty, except in times of war. As of April 2003, forty-four member states (excluding Serbia and Montenegro, which joined in April 2003) had ratified the Human Rights Convention, and only Armenia, Russia, Serbia and Montenegro, and Turkey had not ratified Protocol No. 6.

Both the Parliamentary Assembly (PACE) and Committee of Ministers monitor compliance of new members with their individual accession agreements, which list specific objectives that must be fulfilled in order to harmonize domestic laws or practices with the Human Rights Convention. Of the forty-five Council member states, Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia, Moldova, Russia, Serbia and Montenegro, Turkey, and Ukraine are currently being monitored (as of April 2003). Also, the Committee of Ministers supervises the enforcement of judgments of the ECHR, all of which are legally binding. In extreme cases, such as when a member state has seriously violated its obligations under the Council's founding Statute, the Committee of Ministers may request that it withdraw or it may suspend voting rights of representatives on the Committee or PACE. ¹⁰

II. The Problem

The problem that this article focuses on relates to the issue of how effective regional human rights mechanisms are, that is, whether the Council of Europe, as a regional organization meant to enforce certain accepted behaviors (norms), lost part of its effectiveness now that twenty-one new member states (twelve from Eastern Europe and nine from the former USSR) have joined. It is undeniable that the Council of Europe has changed markedly, from an organization encompassing fairly like-minded countries to one that admits states whose governments and polities arguably more closely resemble those in regions other than Western Europe.

The problem of what happens when "unlike" countries join a new IGO spawns several related questions. For example, have these new member states in fact been complying with the Council's Human Rights Convention? [End Page 663] Have new Council members "learned" to internalize human rights norms out of a sense of obligation and an acknowledgment of their legitimacy? Conversely, are new member states largely protecting their status quo national interests, in defiance of their pledge to observe human rights norms? Or do new member states, not unlike Britain, France, Germany, and other older member states of the Council of Europe, comply with most human rights norms but also manage to act in their so-called national interests in certain cases? Has their participation harmed or enhanced the Council's legitimacy?

III. Theory

Since the 1990s, international relations experts and legal scholars alike have been referring to social constructivism ¹¹ as an approach to help explain how, why, and to what extent international norms structure the behavior of states in international organizations, including the Conference on Security and Cooperation in Europe (renamed the Organization for Security and Cooperation in Europe, or OSCE, in 1994) and the Council of Europe. Some of these authors have argued that, "legal rules and norms operate by changing interests and thus reshaping the purposes for which power is exercised." ¹² Michael Beyers asserts that the specific process of rule-making on the international level often leads to norms constraining and shaping the future behavior of states through obligating them to observe such norms. ¹³ By taking part in the process of norm-creation, state actors begin to think that complying with a norm is in their self-interest.

Constructivist approaches to how norms are conveyed stress the interaction between domestic and international forces. ¹⁴ These approaches [End Page 664] assume that ideas, not just tangible goals or interests, influence decision making. Ideas, such as international norms on human rights, help shape the behavior of political actors and the structures in which they associate. Constructivist approaches assume fluidity in relations, individual behavior, and individual interests. Many constructivists argue that agents, including states, are involved in a kind of social learning process that is driven by their sense of what behavior would best produce a desired effect.

Constructivist approaches may help explain how member states used their agency in agreeing to allow countries of the former Soviet Union and Eastern Europe to enter the Council. For example, the various bodies of the Council collectively decided that accession would persuade new entrants to observe certain human rights standards out of a mutual interest in fostering the growth of liberal democracies, and out of an agreed notion of what an expanded European identity is. As Gregory Flynn and Henry Farrell argue, "[European states] seek a philosophy of international order that links their relations with one another to a specific form of domestic rule." ¹⁵

This article views the interactions among member states of the Council of Europe as transnational legal processes. Such processes, when effective, involve what Harold H. Koh describes as "interaction within the transnational legal process, interpretation of international norms, and domestic internalization of those norms." ¹⁶ They help determine why countries regularly choose to obey international norms.

In fact, a state's approach to human rights emerges out of the relations among many different sets of domestic and international actors. For example, behavior can depend on relations between executive officials and judicial officials within member states and on regional and local officials who may or may not choose to apply international human rights norms. In many former Soviet bloc countries, compliance often depends on whether or not executive agencies and law-enforcement officials apply these standards consistently. Moreover, nonstate actors, such as human rights advocacy groups and transnational advocacy networks, pressure political leaders to internalize international norms on the domestic level. ¹⁷

Scholars who use social constructivist approaches sometimes acknowledge that the role of international law in how actors and social structures are constituted can be partially explained by more traditional approaches, [End Page 665] such as neorealist or neoliberal notions of power distribution and self-interest. A neorealist approach accepts that states' interests on the international level are motivated by power relations, are more fixed (i.e., not often influenced by external ideas), and more often are related to materialistic, meaning economic or military, concerns. It also views the state as a monolith, rather than the sum of many constituent parts. ¹⁸ Neoliberals agree with neorealists that state actors seek to maximize their own interests and that the international system is anarchic. However, neoliberals like Robert O. Keohane and Joseph S. Nye tend to argue that states are interdependent and rely on international organizations and agreements for creating order out of an anarchic chaos. ¹⁹ As Flynn and Farrell point out, "Neoliberals use a rationalist cost-benefit logic to argue that states develop norms to facilitate cooperation in order to minimize transaction costs or to maximize utility." ²⁰ Whatever the case, neither the neorealist nor the neoliberal approach criticizes the status quo nor recognizes how ideas constitute power relations and interests as social constructivist approaches do.

This article argues that, at certain points, state actors have chosen to be constrained by norms when the norms also serve their national interests, a behavioral pattern neoliberals tend to focus on in their work. However, it also recognizes that external ideas have caused states to rethink their interests and that the state is a construction, made up of many different, and sometimes conflicting and changing, interests. Similarly, Thomas Risse and Kathryn Sikkink point out that, "Through processes of persuasion and socialization, states communicate the emergent norms of international society, create in-groups and out-groups as normative communities, and may convince norm-violating states that the benefits of membership in the in-group outweigh the costs." ²¹ According to these two authors, "Even instrumental adoption of human rights norms [i.e., to gain international prestige, improve trade conditions], if it leads to domestic structural change such as redemocratization, sets into motion a process of identity transformation, so that norms initially adopted for instrumental reasons, are later maintained for reasons of belief and identity." ²²

Lastly, research in the area of human rights law has explored whether or not international norms have weakened the nation-state. According to some [End Page 666] scholars, international laws have done so because they now act as the final arbiters in resolving human rights issues pertaining to such controversial policies as immigration. ²³ According to others, states find ways to protect their own interests while still complying with "the letter" of international norms, if not the spirit. Virginie Guiraudon and Gallya Lahav, for example, argue that in instances involving migration control nations "have been able to accommodate interests closely tied to humanitarian standards while reserving certain national rights." ²⁴ Like Guiraudon's and others' work, this article recognizes that the nation-state is still the main determining factor in whether transnational norms are diffused, for "as long as the nation-state is the primary unit for dispensing rights and privileges, it remains the main interlocutor, reference, and target of interest groups and political actors." ²⁵

IV. Research Methods and Design

This research has been driven by two major issues: first, the extent to which new member states are complying with the commitments and obligations they individually agreed to fulfill; and second, whether the dialogue between the Council and each individual country has resulted in a learning process for one or both sides.

The impact of a regional organization on domestic human-rights behavior is difficult to gage. Behavioral change could come about from a combination of factors, including the internal motivation of a few political actors, pressure from neighboring countries, the United Nations, transnational advocacy networks, and other regional organizations. Anyone researching this topic must find evidence pointing to how political leaders of Council member states interacted with Council agencies and responded particularly to Council recommendations and specific commitments and obligations made in accession agreements.

Research methods involve two approaches. First, three categories of compliance are used: high, medium, and low compliance. This article sets forth key attributes or characteristics that define each group based on its members' ability to fulfill their particular obligations and commitments. Second, the case study method was adopted to investigate how certain Council members comply with specific areas of human rights, including [End Page 667] treatment of minorities, freedom from torture, and due process rights. This article features Latvia for the high-compliance group, Croatia for the medium-compliance group, and the Russian Federation for the low-compliance group.

V. Three Case Studies

With the exception of Latvia, countries in the high-compliance group were among the first to join the Council. The high-compliance group has the following key attributes. First, these countries are not under investigation by the PACE or Committee of Ministers for failing to fulfill obligations and commitments outlined in their accession agreements (although they—like all member states—are subject to formal criticism for specific human rights violations in various reports of Council agencies). Second, members of this group have generally complied with the Council's recommendations, which are nonbinding proposals. Lastly, these member states appear to actively promote democratic practices. For example, they have held open, contested elections. In addition, they are seen to be promoting rule of law (including allowing an independent judiciary and adopting human rights protections) and allowing for the equal protection of rights for members of minority groups (through passing laws protecting minorities and ensuring they are universally enforced).

Latvia

Now that it is a sovereign state, Latvia is striving to integrate economically and politically with the rest of Europe. Already a member of the OSCE and the World Trade Organization (1999), Latvia is expected to join both NATO and the EU in May 2004. Its public relations people sell the country as a "springboard to European markets." [End Page 668]

Latvia joined the Council of Europe in 1995; the Parliamentary Assembly approved of its entrance as long as there would be "no arbitrary and unjustified discrimination between citizens and 'non-citizens.'" ²⁶ Since accession, Latvia has participated in various cooperation programs in the fields of human rights and legal reform. It is adapting more quickly to international human rights norms than many of the other new entrants from the former Soviet Union. For example, in October 1998, Latvians voted in a referendum in favor of easing citizenship laws written to discriminate against Russian speakers. It abolished the so-called age-window system, by granting Latvian citizenship to stateless children born in Latvia since August 1991, and simplified language qualification tests. ²⁷

There are three key reasons for Latvian officials' more accommodating behavior, two of which are more instrumental. The primary reason is their motivation to stay in the Council and advance to EU and NATO membership as soon as possible. Latvian politicians and business people alike have defined the need to improve European trade ties as a priority for the country. In addition, Latvia received prompting from its neighbors to the north, Sweden and Finland, who are also supporting its entrance into the EU. Finally, Latvia's political culture seems to have become more tolerant as economic opportunity has widened: many young Russian speakers have become bilingual over the past ten years and Latvia has seen a lessening of Russian-Latvian animosity on the whole. ²⁸

However, Latvia has faced heavy criticism over its discrimination against ethnic Russians, who make up over 30 percent of Latvia's 2.4 million population. The capital, Riga, has a Russian-speaking majority. Soon after gaining independence, ethnic Latvians tried to gain political and economic dominance over Russian speakers, many of whom are not Latvian citizens. ²⁹ By acknowledging the status quo of dominant Russian language use in Riga, Latvians would be admitting that Soviet colonialism had succeeded in changing Latvian culture and had gained some legitimacy. [End Page 669] The legacy of Russian imperialism is a major factor affecting the way all three Baltic states have behaved on the international level since gaining their independence in 1991. ³⁰

Ethnic Russians have been most critical of Latvia's language and election laws. The Latvian Parliament, the Saeima, adopted an election law in May 1995. ³¹ The law requires that candidates be Latvian citizens and, until May 2002, required that all candidates obtain top-level proficiency in the state language (Latvian). In 1997, the Council began criticizing a draft language law. The draft mandated the use of Latvian in both the private and public spheres. Council experts claimed that it violated Article 15 in the Human Rights Convention, which protects against language-based discrimination. It also allegedly violated the Council's Framework Convention for the Protection of National Minorities, which Latvia signed in 1995 but has not yet ratified. ³² Under this treaty, states are required to allow minorities to communicate with government officials in their native tongue in areas where their language is spoken by a significant percentage of the population. The Council responded to this draft law by monitoring the treatment of non-Latvians. The Council's intervention brought worldwide attention to Latvia's conflict over language rights. But the organization initially failed to promote dialogue between the Latvian government and its Russian minority.

In July 1999, Latvian President Vaira Vike-Freiberga compelled Parliament to redraft Latvia's State Language Law on the grounds that it was discriminatory. In December 1999, the Saeima passed a revised language law. ³³ This version dropped the state's strict control over language use in the private sector by removing a requirement that citizens and businesses use only Latvian.

But the law did not satisfy everyone. It makes Latvian the single official state language and contains wording that Russians and human rights groups have found vague, with room for too much discretion on the part of Latvian officials. Street signs are only in Latvian, for example. Portions of the law have proved difficult to implement. Notably, there are still certain conditions under which one can be fined on the spot for not speaking Latvian. [End Page 670] Some towns have hired translators to help Russians complete official documents, but only on a volunteer basis. In 2000, foreign organizations were funding three-fourths of a state program for teaching Latvian, so Russians could justifiably accuse the government of not investing in their interests. ³⁴

In 2000, the Latvian Center for Human Rights and Ethnic Studies reported that the gravest problem facing Latvia was a lack of substantive dialogue between the Latvian government and its minority population. ³⁵ Both sides actually had been filtering their grievances through international mediators, such as the Council, the OSCE, and representatives of neighboring Scandinavian countries. Also, a parliamentary faction, For Human Rights in a United Latvia (which then held sixteen out of 100 seats in the Saeima), called for a campaign of nonviolence against the law. Then Prime Minister Andris Berzins urged citizens to ignore the faction's request. The president herself was defensive about the law when questioned about its weaknesses. She denied that tensions between Russians and Latvians were flaring over the language law. ³⁶ Other Latvian officials spoke out about how their country had become a target of criticism because it is more vulnerable than more established European powers. One Foreign Ministry official argued that, "Western countries don't admit they have the exact same problems as we do, but they can treat Latvia differently because Latvia is relatively weak and an accession candidate [to the EU and NATO]." ³⁷

In the fall of 2000, the Latvian government adopted further regulations for the language law meant to comply with international norms. These include the state not regulating language use in public events organized by private groups and the state providing mandatory translation services for official documents. ³⁸ According to Nils Muiznieks, director of the Latvian Center for Human Rights and Ethnic Studies, "all the arm twisting [by the EU, OSCE, and the Council of Europe] had an impact" on Latvia's decision to amend the language law; all three organizations had argued that the government's regulation of language use be "limited to cases of public health, order, and safety." ³⁹ [End Page 671]

In January 2001, the Council announced that Latvia had adapted its language policy to meet most of its requirements and that Latvian officials were "determined to fulfill the remaining commitments." ⁴⁰ The Council still called for Latvia to adopt a number of measures, though. These included ratifying the Framework Convention for the Protection of National Minorities, ratifying the Social Charter (subsequently ratified in January 2002), and strengthening dialogue between the government and Russian groups on such issues as implementing the Education Law adopted in 1998 (which requires that Latvian be the sole language of instruction by 2004). ⁴¹ In addition, the Council asked Latvia to adopt a law on the protection of minorities and create an agency on minority affairs, although these also have not yet been fulfilled. Nevertheless, by mid-2001, the Council's Committee of Ministers lauded "Latvia's constant willingness to cooperate with the Council of Europe. This cooperation has certainly been instrumental in the progress achieved in some of the most delicate issues, in particular, naturalisation procedures and legislation favourable to foreigners." ⁴²

Although it is no longer formally monitored by the Council's Parliamentary Assembly (and the OSCE closed its Latvia office in December 2001), Latvia has not yet fulfilled all of its obligations and commitments—nor are its language controversies entirely resolved. In December 2001, the Council's European Commission Against Racism and Intolerance (ECRI) adopted the text of a second report on Latvia (issued publicly in July 2002). ⁴³ While ECRI recognized that Latvia had made significant strides in abolishing racism, intolerance, and discrimination, it called on its government to revise Article 5 of the language law (to recognize regional or minority languages), adopt anti-discrimination legislation, grant more people access to the naturalization process (approximately 23 percent of the total Latvian population are non-citizens), and revise the election law. ⁴⁴ Latvia's government responded to the report (its response appears at the end of the report's [End Page 672] text). It stressed that, "Non-citizens enjoy the same fundamental economic and social rights as citizens." ⁴⁵

Also in December 2001, President Vike-Freiberga urged Parliament to abolish the measure in Latvia's election law preventing citizens from running for office if they were not fluent in Latvian. She argued that the provision was undemocratic, but members of some parliamentary parties, including the conservative For Fatherland Party, opposed her proposal. ⁴⁶ The Saeima adopted her proposed change in May 2002 only after Latvia was publicly criticized by the United States, other NATO members, and the OSCE. ⁴⁷

Another reason Latvian authorities may have been motivated to change the law was that Latvia had lost a high-profile case in the ECHR the month before. In April, the Court ruled that Latvia had violated Article 3 of Protocol No. 1 (right to free elections) of the Human Rights Convention when an employee at the Latvian State Language Center single-handedly decided to forbid a Russian-speaking candidate, Ingrida Podkolzina, from running for Parliament in 1998. ⁴⁸ She failed the language test he had administered to her, despite the fact that she had previously obtained a valid certificate verifying language proficiency. Even though Latvia had technically lost the case, the ECHR did not order the country to change its election law. An official press release on the matter stated that, "The Court found that the purpose of the legislation on parliamentary elections barring citizens without an advanced degree of proficiency in the national language from standing for election was to ensure the proper functioning of the Latvian institutional system." ⁴⁹ Only days later, on 30 April, the Latvian Parliament amended the Constitution to strengthen the use of the Latvian language in Parliament and local government; while this move was an apparent backlash against the Court's decision and appeased ultranationalist legislators, it is more symbolic than effective. ⁵⁰ [End Page 673]

Clearly, Latvian politics are characterized by internecine conflict between the president and parliament, with language and Latvian-Russian tensions still playing a strong mitigating role. However, this case should also be a reminder that, while still a "top-compliance" group member according to the Council's own assessment, Latvia and other countries in this group are hardly in full compliance—and like many of their older "siblings" may not be in the near future. One also needs to take into account, though, the fact that Latvia is not experiencing ethnic violence and that Russians who are living in Latvia are not fleeing it (as opposed to their counterparts in other republics of the former USSR, who are returning to Russia in higher proportions), as Latvia's economy is more stable and affords them a higher quality of life.

The countries included in the medium-compliance group have shown progress toward fulfilling their obligations and commitments to the Council of Europe, but not enough to qualify them for the high-compliance group. Their first key attribute then is that they are not under investigation for failing to fulfill key commitments and obligations under accession agreements. Second, they are complying with the majority of the Council recommendations. Lastly, they have been showing what the Council would call "a good faith effort" toward promoting democratic practices, rule of law, and equal protection of the rights of members of minority groups. In some cases, though, observers from the Council or the OSCE have reported minor infractions of election laws, evidence of judicial dependence on executive branch officials, and mistreatment of members of minority groups in certain areas. Human rights violations, therefore, are more widespread in these countries than in the countries in Group I. [End Page 674]

Croatia

Croatia joined the Council of Europe in November 1996. ⁵¹ Since accession, Croatian representatives have participated in various cooperation programs with the Council of Europe, from informational meetings to training seminars. In addition, three so-called Local Democracy Agencies (LDAs) under the Council's auspices are functioning in Croatia. Among other functions, LDAs assist refugees and displaced persons, help reconstruct public services, and provide training for locally-elected representatives and administrators.

In addition to its membership in the Council, Croatia was awarded membership in the OSCE, NATO's Partnership for Peace (2000), and the World Trade Organization (2000). In April 2000, the United Nations' Commission on Human Rights voted to drop Croatia from the mandate of its special rapporteur as long as progress continued.

In September 2000, the PACE ended its formal monitoring of Croatia's compliance with the terms of its accession agreement. At that time, the PACE resolved that "Croatia has honoured its obligations and most of its commitments and that remaining commitments are in the process of being fulfilled." ⁵² Among the measures Croatian officials had implemented included facilitating the return of thousands of Serb refugees. The Council also noted that the country was moving toward democratic governance with the introduction of fair and open elections and rule of law. Croatia adopted a constitution that supports democratic institutions and protects basic civil liberties and minority rights. It also adopted new, more liberal laws on minority languages and education and on limiting police surveillance over citizens. Within a decade, Croatian nongovernmental organizations have gained the freedom to register voters, educate the public, and supervise elections.

In addition to acknowledging Croatia's improved record of compliance, the Council of Europe has commended it for cooperating with the International Criminal Tribunal for the former Yugoslavia (ICTY). For example, in March 2000, Croatian authorities allowed Bosnian-Croat war crimes suspect Mladen Naletilic to be transferred to the ICTY for indictment. One month later, the government allowed ICTY representatives to investigate the site of an alleged massacre of Serbian civilians in Gospic, Croatia, in 1991. In July 2001, Lord Russell-Johnston, former PACE president, said that "The [End Page 675] most recent decisions concerning the transfer of Croatian nationals testify to the strength of its commitments to justice, the rule of law and respect for its international obligations." ⁵³ Croatia later earned accolades for ratifying the Rome Statute of the International Criminal Court (ICC) in May 2001. It was the first country in Eastern Europe to ratify the treaty (the Council and the EU strongly back the ICC).

Though Croatia has progressed toward fulfilling its initial obligations, Council agencies continue to monitor the country's treatment of minority populations. In Croatia, 78 percent of the population is ethnic Croatian, 12 percent is ethnic Serb, 1 percent is Muslim, 2 percent is composed of other Slavic groups, and the remaining 7 percent is composed of other ethnicities, including Roma (an estimated 0.2 percent of the population). ⁵⁴ The Council has focused its attention on Croatia's constitution and particular statutes. In July 2001, for example, the Council's Venice Commission (the European Commission for Democracy Through Law) issued an opinion about recently-adopted constitutional amendments. ⁵⁵ Members of the Commission had worked with Croatian lawmakers in revising the Constitution partly with an eye toward improving the political status of minorities and thus strengthening human rights protections. Commission members found that the revisions strengthened certain universal guarantees in Croatia, including the right to a fair trial, freedom of association, right of petition and complaint, and right to health care. The Constitution now recognizes proportionality, a principle rooted in European law, whereby "should the law introduce different treatment of different people, this difference must be proportional to the aim sought to be achieved." ⁵⁶ However, the Council's Advisory Committee on the Framework Convention for the Protection of National Minorities stated in an opinion in April 2001, that the Constitution's preamble differentiates national minorities by listing some but omitting others, such as Bosniacs, Roma, and Slovenes, a practice that could lead to discrimination. ⁵⁷ [End Page 676]

Second, Council agencies continue to monitor specific activities inside Croatia, including the elections of local officials and their governing of diverse populations. For example, the International Election Observation Mission, a group of representatives from the Council's Congress of Local and Regional Authorities, and the OSCE, gave the local elections of May 2001 a positive overall assessment. They concluded that, despite initial confusion over how to implement a new state law on elections, they were widely contested, the campaigns were "generally well conducted, focusing on socio-economic and national issues," and the counting was "conducted accurately." ⁵⁸ However, the group also noted specific shortcomings that were carried over from earlier elections; most importantly, those ethnic Croats and Serbs who were displaced persons still had unequal voting rights, and voting registries still identified voters by their ethnicity (which the Council and the OSCE view as discriminatory).

The Council is particularly concerned with the ability of Croatian officials to fulfill Article 14 of the Human Rights Convention, which protects against discrimination based on race, color, language, religion, and national origin. In public statements, the Council has expressed concern over the discriminatory treatment some officials have given ethnic Serbs and Roma people living in Croatia. Since 2000, the Council and Croatian officials have been involved in an ongoing dialogue about these issues. Recommendations emerging from these talks have included Croatia's adopting a constitutional law on the rights of national minorities in compliance with recommendations made by the Venice Commission, a measure that Croatia has since adopted. ⁵⁹ Also, the Council recommended that Croatia amend an election law to protect minority voting rights and laws strengthening judicial independence, local and regional self-government, and property law. Croatia amended the election law, although laws in the other areas still need to be adopted and implemented.

The Council also needs more assurance from Croatia that it is effectively enforcing all court decisions, as well as laws on citizenship, the repossession of property in the areas of return, and amnesties. In December 2000, the ECRI issued a report finding that discrimination persisted nationwide, despite the fact that national authorities had made an effort to improve the situation. ⁶⁰ The ECRI said that Croatia still needed to adopt laws that would [End Page 677] "ensure that more effective judicial and administrative means of redress are established." ⁶¹ It revealed existing problems related to citizenship issues and providing adequate housing, education, and job opportunities for ethnic Serbs returning to their homes in Croatia and Roma populations in particular.

In a response to this report, the Croatian government assured ECRI that it is "determined to deal seriously with [issues raised in the report] in the months to come and remains open to the co-operation with international organisations to resolve these issues more rapidly." ⁶² It mentioned that in 2000, the OSCE had recalled its Police Monitoring Groups in Croatia and said that "allegations that the security continues to be [an] important concern in war affected areas are not corroborated either by the UNHCR [United Nations High Commissioner for Refugees] survey among the Serb returnees." ⁶³ It also tried to assure ECRI that it was taking effective measures to ensure that Roma children would have equal access to education and that the Croatian Ombudsman's Office was competently handling problems related to human rights violations against Roma.

On the whole, since hostilities ceased in Croatia, the country has been in a strong position to "learn" from its dialogue with the Council of Europe and other European organizations. Its leaders, particularly the current president Stipe Mesic, are motivated to build a politically stable country not based on state coercion or hyper-nationalism but on more democratic, inclusive principles. They want Croatia to join the EU and to strengthen and widen world trade ties, but still must contend with social tensions fueled by economic uncertainty and ethnic intolerance. These goals are reflected in the government's response to the ECRI report, as well as its willingness to engage in dialogue with the Council about some of its shortcomings.

On the other hand, Croatia's capacity to fulfill international human rights obligations is closely tied to the economic health of its regions. In 2001, Foreign Minister Tonino Picula urged Croatia's foreign partners to apply preventive diplomacy and work to increase economic development [End Page 678] in the Balkans to avoid social unrest. ⁶⁴ His government is most concerned with the social and economic effects of returning Serb refugees; reportedly several thousands more arrived than predicted. ⁶⁵ As the Croatian government's response to the second ECRI report stated, "Financial assistance by the international community has not been as high as expected, and the raising of the living standard of refugees and other inhabitants of Croatia will mostly depend on the economic recovery of the country as a whole." ⁶⁶

Its dialogue with the Council suggests that Croatia relies on the Council and other, more prestigious European organizations to help prevent the country's fragile democratic institutions from imploding. However, whether Croatian officials will be able to implement the laws that the Council and these other organizations have helped shape and use its international funding to benefit all Croatia's residents remains unclear.

Countries in the low-compliance group, which all currently are being monitored by the PACE, were among the last to join the Council. Along with the Russian Federation, the three Transcaucasian countries (Georgia, Armenia, and Azerbaijan) have fallen under the most scrutiny. These countries are experiencing periods of political instability, and so are more vulnerable than the other new member states to human rights violations.

The first key attribute of this group is that each of its countries are under investigation for failing to fulfill key obligations and commitments in their accession agreements (including those calling for an end to severe human rights violations, as outlined in the Human Rights Convention). Second, [End Page 679] they are not complying with significant Council recommendations to change behavior or pass specific domestic laws protecting human rights. Lastly, in each of these states, according to the Council of Europe, national officials are inconsistently promoting democratic practices, rule of law, and equal protection of the rights of members of minority groups. For example, human rights observers have reported significant violations of election laws (particularly in Azerbaijan and Armenia), problems with judicial dependence on local officials, and violations of laws protecting minority populations.

The Russian Federation

The Russian Federation was admitted to the Council of Europe in 1996. ⁶⁷ Some Council member states were concerned about Russia's slower pace of reform, particularly the lingering problems tied to a weak legal culture, lack of due process in criminal trials, and human rights abuses in Chechnya. In the end, the Council concluded that "integration is better than isolation; cooperation is better than confrontation." ⁶⁸ Checkel found that the presidential administration and Ministry of Foreign Affairs have centrally controlled Russia's contacts with the Council, and as a consequence, NGOs have failed to mobilize pressure in support of human rights norms. ⁶⁹

Since accession, Russia has fulfilled a number of key entrance criteria, including ratifying the European Convention for the Prevention of Torture and the Framework Convention for the Protection of Minorities. ⁷⁰ Russian authorities have cooperated with the Council on several levels. Russian representatives have met often with Council groups, taken part in many training sessions, and organized various joint programs. In 2001, Russian officials began to meet more frequently with Council officials over Chechnya and to hold Russian military personnel responsible for human rights abuses there.

In July 2002, a new criminal procedure code entered into force. ⁷¹ Its [End Page 680] drafters in the Russian Federal Duma added a number of measures to the code—including the presumption of innocence, a requirement that courts issue arrest warrants, a requirement that suspects be informed "promptly" of their charges, and free legal assistance for indigents—strengthening Russia's compliance with the Human Rights Convention and other legally-binding Council treaties, at least on paper. President Vladimir Putin's recent efforts to foster legal reform positively influence his government's relations with the Council. For example, in November 2002, the Council granted Russia 18 million euros toward implementing a number of new legal reforms, and in recognition of its fulfilling Council obligations in this area. ⁷²

The year 2002 also saw the completion of the first complaints heard in the ECHR in which Russia was a party. According to Jeffrey Kahn, up until 2001, most of the nearly 2,000 complaints submitted by Russian complainants to the court "were routinely rejected as inadmissible on technical grounds" due to a lack of knowledge the Russian applicants and their attorneys had about the Strasbourg system. ⁷³ In June 2001, the court heard arguments in Burdov v. Russia. ⁷⁴ Anatolii Burdov is a Russian pensioner to whom Soviet authorities had awarded compensation for his involvement in emergency clean-up at the site of the nuclear disaster at the Chernobyl nuclear power plant in 1986. As of 2001, he had not yet received this money. The ECHR found that Russia had violated Article 6 section 1 of the Human Rights Convention (right to a fair trial), as well as Article 1 of Protocol No. 1 (protection of property) and awarded Burdov 3,000 euros (about $3,000 US) in damages, to be paid by Russia. In a second ruling, Kalashnikov v. Russia, in July 2002, the ECHR again found Russia in violation of the Convention. ⁷⁵ While awaiting trial on embezzlement charges, Russian banker Valerii Kalashnikov was detained for four years and kept under conditions he found to be intolerable. He was released in 2000. The ECHR found that Russia had violated Article 3 (prohibition of inhuman or degrading treatment), Article 5 (right to stand trial within a reasonable time), and Article 6 (right to a fair hearing within a reasonable time). The court awarded Kalashnikov 5,000 euros for damages and 3,000 euros for costs and expenses. [End Page 681]

These two cases show that Russian human rights lawyers have grown better acquainted with the Strasbourg system and that the Russian government violated specific measures in the Human Rights Convention for which it has been held accountable financially and publicly. Russia's representative to the ECHR stated that, although Russia disagreed with the Kalashnikov judgment, it would settle the case. ⁷⁶

Apart from its emerging "dialogue" with the ECHR, Russia is still being monitored on two major fronts. First, it has not yet ratified Protocol No. 6. In 1997, President Yeltsin issued a decree instituting a nationwide stay of executions, reportedly after much pressure from the PACE, then Secretary-General Daniel Tarschys, and international NGOs. ⁷⁷ Since then, President Vladimir Putin has expressed his opposition to the death penalty. However, Russia's criminal code still allows for its use. There are internal factors working against the abolition of capital punishment. First, the conditions of prisons are inhuman; many prisoners would rather be executed than die a slow, painful death from tuberculosis or other infectious diseases. Second, most Russians and law-enforcement officials in particular support the death penalty, viewing it as retributive justice and a deterrent. ⁷⁸

The most divisive issue between the Council and the Russian Federation, though, has been the latter's handling of the two wars in Chechnya. Since 1996, the Council has continued to investigate Russia for human rights abuses in the breakaway republic, while the Russian government has stated its continuing commitment to complying with human rights norms. ⁷⁹ Articles of the Human Rights Convention that Russia is allegedly violating include Article 3 (protection against inhuman and degrading treatment), and Article 14 (protection from discrimination based on race, color, language, religion or national origin). More than any other international organization, [End Page 682] the Council investigated human rights abuses in Chechnya and engaged in the most extensive dialogue with Russian authorities over it.

However, Secretary-General Schwimmer sent a mixed message to Moscow about its actions in Chechnya. Initially, in 1999, he said that it is "a clear right and duty of the Russian Federation to defend Russian territorial integrity and Russian citizens." ⁸⁰ However, a year later, Schwimmer formally invoked an article from the Human Rights Convention to request information from the Russian foreign minister, Igor Ivanov, about possible violations of the Convention made by Russian soldiers in Chechnya. The letter provoked a three-month-long correspondence. Ivanov's strategy was to use the Convention, the very law that Russia was accused of violating, to defend his government's reasoning. Article 15 provides for the possibility of noncompliance with the Convention by a state "in time of war or other public emergency threatening the life of the nation." ⁸¹ Ivanov called the war an "anti-terrorist operation" aimed at restoring human rights and establishing legality. ⁸² He used the language of the Convention referring to members' having the right to defend themselves in times of war to justify a temporary suspension of human rights practices in Chechnya. Moscow also is loathe to reveal to the world what little control it had over the security situation inside Chechnya. More than anything else, the Council's and other organizations' investigations into human rights violations would further expose Moscow's limited military capacity.

While this correspondence was proceeding, the Russian government agreed to admit a three-person team of Council experts to assist President Vladimir Putin's special representative for Human Rights in Chechnya, Vladimir Kalamanov. The team was the only international personnel with a human rights mandate that Putin permitted to operate in Chechnya. From the Council's standpoint, it had scored a victory for monitoring, even though Kalamanov's office had no authority to investigate or prosecute alleged atrocities. On closer inspection, however, it is not difficult to conclude that the Putin government had deliberately chosen the weakest institution that it could engage, in terms of clout, in an effort to avoid an international backlash. [End Page 683]

Moreover, the Council's intervention in Chechnya gave the United Nations, the OSCE, the European Union, the United States, and other governments and institutions an argument against forming an international inquiry. ⁸³ The Council used its monitoring team in Chechnya as an excuse not to take more drastic action, such as a multi-member lawsuit against Russia before the ECHR or expelling it from the Council.

Ultimately, the strongest Council sanction that Russia suffered was suspension of its voting privileges in the Parliamentary Assembly in April 2000. ⁸⁴ The PACE also took initial steps to suspend Russia's membership if it did not show improvement in Chechnya. The Russian government protested then warned that relations with Europe would suffer if any of this happened. Immediately, the Council leadership began to retreat. Many of the foreign ministers on the Council's Committee of Ministers argued that Russia had already taken measures to respond to its inquiries. Russia's voting rights were reinstated in January 2001, after President Putin announced that Moscow would reduce the number of its forces in Chechnya and after Russia agreed to form a Joint Working Group on Chechnya with human rights observers appointed by the Council. ⁸⁵

Not surprisingly, the Working Group lacks the authority to change the behavior of Russian government officials and soldiers in the field. Later in 2001, the Council's Committee for the Prevention of Torture strongly criticized Russia's lack of cooperation with its recommendations. ⁸⁶ The Committee addressed Russian authorities' failure to carry out a thorough and independent inquiry into alleged abuses at the Chernokozovo detention facility in 2000 and to prosecute cases of mistreatment of detainees in Chechnya. [End Page 684]

Although in April 2002, Schwimmer and Ivanov had agreed to enlarge the Council's mandate in Chechnya, ⁸⁷ the Council is still calling on Russian authorities to end the "climate of impunity" there and cooperate more fully with its agencies. A March 2003 PACE report on the human rights situation in Chechnya found that Russian officials had either suspended or closed dozens of cases filed against Russian military and law-enforcement personnel without explanation. ⁸⁸ The March 2003 report, together with PACE Resolution 1323 (April 2003) and PACE Recommendation 1600 (April 2003), calls on Russia to undertake specific measures to bring to justice the Russian and Chechen perpetrators of human rights abuses. ⁸⁹ The three documents also state that, if Russia does not intensify its efforts to end the climate of impunity there, the international community should consider creating an ad hoc tribunal to prosecute war crimes and crimes against humanity in Chechnya. ⁹⁰ In addition to these strong demands for Russia to fufill its obligations, the Council has extended offers to assist Russia in a peaceful settlement of the conflict after a referendum on a draft constitution and new election laws in Chechnya was approved by residents there in late March 2003. ⁹¹

To sum, on the positive side, Russia fulfilled its commitments in the accession agreement related to legal reforms, incorporated the Human Rights Convention into its domestic law, and agreed to pay fines resulting from ECHR judgments it had lost. In addition, Russian human rights advocates and legal reformers often refer to Council conventions in their work in acting as watchdogs over the actions of Russian officials.

On the negative side, Russian officials have chosen to value sovereignty over their pledge to observe key European human rights norms, namely right to life and right to be free from torture. The Chechnya conflict has yet [End Page 685] to be resolved, and the Putin/Kasyonov government has also been limiting freedom of the media, especially television. The so-called war on terrorism has further limited the Council's ability to exert pressure on Russia to comply with European human rights norms. Russia argues that its conflict with Muslim separatists in Chechnya is another front in the ongoing anti-terror war. For example, in October 2001, President Putin said that, "the shared goal of European justice is to abide completely and faithfully by the legal standards enshrined in the [Human Rights Convention] . . . It is important for us all to work in this direction and to understand that territories on which civilized law does not operate become a 'terrorist offshore.'" ⁹² Such a mixed response by Russian officials to the Council's recommendations for a political resolution to the Chechnya crisis still falls short of honoring their obligations and commitments.

VI. Implications for Theory

This research has implications for social constructivism's application to state behavior within a regional human rights context. It attempts to show that the Human Rights Convention and other Council of Europe documents act as guideposts for political behavior in an expanded Europe. Over the years, the Council has acted as an effective mechanism for compliance, as the Human Rights Convention itself has gained legitimacy, even among the Council's newest members. Most member states have acknowledged its authority by incorporating the document into their domestic law and executing ECHR judgments.

However, the Council of Europe as an international organization has innate weaknesses that could prevent it from meeting its goal of expanding human rights protections eastward. Overall, it relies on the soft power of pressure, shaming, and the threat of expulsion to keep members in line. The ECHR lacks injunctive power to compel member states to change domestic laws and behaviors. Moreover, the Council's critics say that expansion has undermined the organization's "moral authority" and the Human Rights Convention's legitimacy. For example, the nongovernmental organization Human Rights Watch argued that the Council had compromised its own standards in 2001 when it admitted Armenia and Azerbaijan, countries that are still locked in conflict. ⁹³ [End Page 686]

Although the Council's reputation may have been marred by enlargement, as of April 2003, the process itself has already reaped some modest dividends—and the Human Rights Convention has not lost its legitimacy. This article finds that members in the high-compliance group, including Latvia, quickly learned to cooperate with the Council of Europe and were already internalizing most norms outlined in the Human Rights Convention.

Social constructivist approaches best account for much of the behavior of states in this group (although some behavior certainly can also be explained through a neoliberal lens). First, political leaders from countries in the high-compliance group have established a need to identify with a discrete group of countries, liberal democracies. Their actions have indicated that they feel a sense of obligation to obey human rights norms, which they view as legitimate, and recognize that their countries share a common heritage, as well as interests, goals, and values. A number of these countries, the Czech Republic in particular, experienced aspects of liberal democratic rule before joining the Soviet bloc, making a return to pursuing such aims as universal human rights protection and rule of law in the 1990s less jolting. Second, the countries that are most strongly cooperating with the Council are actually closer to joining the EU and NATO (or, in the case of the Czech Republic, Hungary, and Poland, have already joined NATO). Thus, there are built-in incentives to meet obligations and commitments quickly. Third, many of the new members, including Latvia, are motivated to internalize human rights norms when they find that doing so may strengthen a new regime's legitimacy and foster social cohesion.

Members of the middle-compliance group, including Croatia, have also cooperated with many of the Council's recommendations. But, influenced by their authoritarian legacies, lingering ethnic tensions, and considerable economic challenges, they are slower to internalize European human rights norms. In these cases, social constructivist approaches also carry some explanatory weight, but neoliberalism would better account for some self-seeking behaviors. The neoliberalist approach explains behavior from the perspective of a cost-benefit analysis, whereby state officials choose to comply with European human rights norms based on their assessment of how much its doing so might help their regimes domestically. For example, in the medium-compliance group, political leaders have shown a willingness to sacrifice national sovereignty in return for tangible rewards from the in-group (e.g., future membership in the EU and economic assistance) and intangible rewards (e.g., positive recognition in official statements for conforming to European shared values).

Russia and other countries in the low-compliance group have different, more authoritarian, communist-era legacies. In most of these countries, governments are still enmeshed in violent civil conflict, and political regimes are not yet stable. There is less of an incentive to comply with the [End Page 687] demands of the Council of Europe or to take part in a social learning process: EU and NATO membership lies further in the distance or is improbable and issues of internal security loom large. The neorealist approach best explains why at this point, countries such as the Russian Federation appear to be motivated more to guard their existing interests in areas their governments have defined as national security concerns than to meet obligations and take part in social learning. Compliance tends to occur largely for instrumentalist reasons, and arguably the Council of Europe has been forced to adjust its expectations to justify keeping these members on board.

VII. Conclusion

Does membership have its privileges? It decidedly does. New Council members suffer the indignity of being scrutinized by their older siblings, some of whom are not too well behaved themselves (Turkey, for example). But, thus far no new entrant has been disowned. This is because the thinking of the senior members, however controversial, is that it is easier to persuade new entrants to conform to certain standards of human rights as members that have ratified the European Human Rights Convention, than to expel them and deal with them from the outside, as potential pariah states. As Alexander Wendt explains, "shared ideas are just as objective, just as constraining, just as real in their effects as material forces." ⁹⁴

 

Pamela A. Jordan received her Ph.D. in political science from the University of Toronto in 1997 and is an Assistant Professor of History at the University of Saskatchewan. Her dissertation research on post-Soviet legal reform in Russia has appeared in peer-reviewed journals and a multi-authored volume, Building the Russian State: Institutional Crisis and the Quest for Democratic Governance (Valerie Sperling ed., Westview Press, 2000). In addition to teaching, Dr. Jordan has acted as a consultant for the American Bar Association's Central and East European Law Initiative and as executive director of the NGO Committee on Disarmament, the principal service organization for nongovernmental organizations focused on disarmament policy in the United Nations context.

Notes

1. JACK DONNELLY, INTERNATIONAL HUMAN RIGHTS 82 (2d ed. 1998).

2. Id.

3. SeeCLARE OVEY & ROBIN C.A. WHITE, JACOB AND WHITE, THE EUROPEAN CONVENTION ON HUMAN RIGHTS 3 (3d ed. 2002). See also Andrew Moravcsik, The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe, 54 INT'L ORG. 217 (Spring 2000); Kathryn Sikkink, The Power of Principled Ideas: Human Rights Policies in the United States and Western Europe, in IDEAS AND FOREIGN POLICY: BELIEFS, INSTITUTIONS AND POLITICAL CHANGE 139, 161-62 (Judith Goldstein & Robert O. Keohane eds., 1993).

4. OVEY & WHITE, supra note 3, at 440.

5. Editors, Walter Schwimmer, Timid Moral Policeman, ECONOMIST, 27 Nov. 1999, at 56.

6. Josef Wolf, What identity for tomorrow's Europe? Second part of the colloquy: "From cultural identities to a European political identity," 20-21 Sept. 2001, available at http://www.coe.int/t/e/communication_and_research/press/theme_files/European_identity (visited 30 Sept. 2001).

7. Republic of Georgia President Eduard Shevardnadze, Statement made at the Second Summit of the Council of Europe, Strasbourg, France 10-11 Oct. 1997, available at http://www.coe.fr/Summit/discours/egeo.htm (visited 15 Apr. 2003).

8. Jeffrey T. Checkel, International Institutions and Socialization, Arena Working Paper (WP 99/5), available at http://www.arena.uio.no/publications/wp99_5.htm (visited 16 Aug. 2002). See also Jeffrey T. Checkel, Why Comply?: Social Learning and European Identity Change, 55 INT'L ORG. 553 (2001).

9. European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 Nov. 1950, 213 U.N.T.S. 221, Europ. T.S. No. 5 (entered into force 3 Sept. 1953). The Human Rights Convention contains a list of eighteen civil and political rights. It establishes a minimum standard for the safeguarding of human rights in member states. Its various rights and freedoms include the right to life; prohibition of torture, slavery, and forced labor; right to a fair trial; freedom of expression, thought, assembly, conscience, and religion; and right to privacy.

10. Statute of the Council of Europe, opened for signature 5 May 1949, 87 U.N.T.S. 103, Europ. T.S.1 (entered into force 3 Aug. 1949), available at http://conventions.coe.int/treaty/EN/cadreprincipal.htm (visited 15 Apr. 2003).

11. Social constructivism is a theoretical approach to international relations based on the premise that the interests and identities of political actors, including states, are socially constructed. Ideas, not just tangible interests, matter to international relations. For example, according to John Gerard Ruggie, "Constructivists hold the view that the building blocks of international reality are ideational as well as material; that ideational factors have normative as well as instrumental dimensions; that they express not only individual but also collective intentionality; and that the meaning and significance of ideational factors are not independent of time and place." John Gerard Ruggie, What Makes the World Hang Together? Neo-utilitarianism and the Social Constructivist Challenge, 52 INT'L ORG. 879 (1998).

12. Anne-Marie Slaughter et al., International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship, 92 AM. J. INT'L L. 367, 381 (1998).

13. Michael Byers, Custom, Power, and the Power of Rules: Customary International Law from an Interdisciplinary Perspective, 17 MICH. J. INT'L L. 109 (1995).

14. SeeTHE CULTURE OF NATIONAL SECURITY: NORMS AND IDENTITY IN WORLD POLITICS (Peter Katzenstein ed., 1996); FREDRICH KRATOCHWIL, RULES, NORMS, AND DECISIONS (1989); NICHOLAS ONUF, WORLD OF OUR MAKING (1989); JOHN GERARD RUGGIE, CONSTRUCTING THE WORLD POLITY (1998); ALEXANDER WENDT, SOCIAL THEORY OF INTERNATIONAL POLITICS (1999).

15. Gregory Flynn & Henry Farrell, Piecing Together the Democratic Peace: The CSCE, Norms, and the "Construction" of Security In Post-Cold War Europe, 53 INT'L ORG. 505, 530 (1999).

16. Harold H. Koh, Why Do Nations Obey International Law?, 106 YALE L. J. 26 (1997).

17. SeeSUSAN BURGERMAN, MORAL VICTORIES: HOW ACTIVISTS PROVOKE MULTILATERAL ACTION (2001); HUMAN RIGHTS AND THE INTERNET (Steven Hick et al. eds., 2000); MARGARET KECK & KATHRYN SIKKINK, ACTIVISTS BEYOND BORDERS: ADVOCACY NETWORKS IN INTERNATIONAL POLITICS (1998); NGOS AND HUMAN RIGHTS: PROMISE AND PERFORMANCE (Charles E. Welch, Jr. ed., 2001).

18. SeeKENNETH WALTZ, THEORY OF INTERNATIONAL POLITICS (1979).

19. ROBERT O. KEOHANE & JOSEPH S. NYE, POWER AND INTERDEPENDENCE: WORLD POLITICS IN TRANSITION (1997).

20. Flynn & Farrell, supra note 15, at 510.

21. Thomas Risse & Kathryn Sikkink, The Socialisation of International Human Rights Norms Into Domestic Practices: An Introduction, in THE POWER OF HUMAN RIGHTS: INTERNATIONAL NORMS AND DOMESTIC CHANGE 38 (Thomas Risse et al. eds., 1999).

22. Id. at 10.

23. See, e.g., DAVID JACOBSEN, RIGHTS ACROSS BORDERS: IMMIGRATION AND THE DECLINE OF CITIZENSHIP (1996).

24. Virginie Guiraudon & Gallya Lahav, A Reappraisal of the State Sovereignty Debate, 33 COMP. POL'Y STUD. 164, 167 (2000).

25. Virginie Guiraudon, European Courts and Foreigners' Rights: A Comparative Study of Norms Diffusion, 34 INT'L MIGRATION REV. 1088, 1107 (2000).

26. On the application by Latvia for membership of the Council of Europe, Parliamentary Assembly of the Council of Europe [hereinafter PACE], 1995 Sess., Op. No.183, available at http://assembly.coe.int/Documents/AdoptedText/ta95/EOPI183.htm (visited 25 Mar. 2002).

27. See Nils Muiznieks et al., Human Rights in Latvia in 1998, available at http://www.riga.lv/minelres/count/latvia/lchres98.htm (visited 15 Apr. 2003) (providingbackground on the referendum and citizenship law).

28. Valentinas Mite, Latvia: Language Law Amended, But Issue Remains Divisible, Radio Free Europe/Radio Liberty Online (15 May 2002), at http://www.rferl.org (visited 10 Aug. 2002).

29. Of the approximately 583,000 resident noncitizens of Latvia, an estimated 68 percent are ethnic Russians. See U.S. Department of State, Country Reports on Human Rights Practices 2002: Latvia, available at http://www.state.gov/g/drl/rls/hrrpt/2002/18375pf.htm (visited 15 Apr. 2003).

30. Jeremy Bransten, Latvia: Politics of Language Keeps Country Divided, Radio Free Europe/Radio Liberty Online (7 Sept. 2000), at http://www.rferl.org/nca/features/2000/09/f.ru.000907135946.html (visited 15 Jan. 2001).See also, THE BALTIC STATES IN WORLD POLITICS (Birthe Hensen & Bertel Heurli eds., 1998).

31. Project on Political Transformation and the Electoral Process in Post-Communist Europe, University of Essex, Saeima Election Law, available at http://www.essex.ac.uk/elections/ (visited 15 Apr. 2003).

32. A list of ratifications of this treaty is available at http://conventions.coe.int/treaty/EN/cadreprincipal.htm (visited 15 Apr. 2003).

33. Nils Muiznieks et al., Human Rights in Latvia in 1999, available at http://www.riga.lv/minelres/count/latvia/ct99new.htm (visited 15 Apr. 2003).

34. Bransten, supra note 30.

35. Id.

36. Latvian President Says Russia Must "Accept Reality," Radio Free Europe/Radio Liberty Online (31 July 2000), at http://www.rferl.org/newsline/2000/07/310700.asp (visited 15 Jan. 2001).

37. Christopher Walker, Latvia's Language Tremors, CHRISTIAN SCI. MONITOR, 19 Sept. 2000, at 13.

38. U.S. Department of State, Country Reports on Human Rights Practices 2000: Latvia, available at http://www.state.gov/g/drl/rls/hrrpt/2000/eur/812pf.htm (visited 15 Apr. 2003).

39. Nils Muiznieks, Accession and the Politics of Language in Latvia, Open Society News (Summer 2002) available at http://www.soros.org/osn/summer2002/article6.html (visited 15 Apr. 2003).

40. Press Release, Council of Europe Parliamentary Assembly, Assembly Ends Monitoring of Latvia (23 Jan. 2001), available at http://assembly.coe.int/press/cp01/45a(01).htm (visited 30 Jan. 2001).

41. Honouring of obligations and commitments by Latvia, PACE, 2001 Sess., Res. No. 1236, available at http://assembly.coe.int/Documents/AdoptedText/ta01/ERES1236.htm (visited 30 Mar. 2002). See Muiznieks, supra note 27, for more on education law.

42. Directorate General of Human Rights, 53 HUM. RTS. INFO. BULL. March-June 2001 (Sept. 2001), available at http://www.humanrights.coe.int/Bulletin/eng/ib53e.pdf (visited 15 Oct. 2001).

43. Second Report on Latvia, Eur. Comm. Against Racism & Intolerance (ECRI) (2002) 21, adopted 14 Dec. 2001 (issued publicly 23 July 2002), available at http://www.coe.int/T/E/human_rights/Ecri/1-ECRI/2-Country-by-country_approach/Latvia/Latvia_CBC_2.asp#TopOfPage (visited 10 Aug. 2002).

44. Id.

45. Id., at appendix.

46. President Calls for Abolishing Language Requirement for Election Law, Radio Free Europe/Radio Liberty Online (21 Dec. 2001), at http://www.rferl.org/balticreport/2001/12/30-211201.html (visited 27 Apr. 2003).

47. Mite, supra note 28.

48. Podkolzina v. Latvia, Eur. Ct. H.R., application no. 46721/99, 9 Apr. 2002, available at http://www.echr.coe.int (visited 20 Aug. 2002).

49. Press Release, Registry of the Eur. Ct. Hum. Rts., Chamber Judgment in the Case of Podkolzina v. Latvia (9 Apr. 2002), available at http://press.coe.int/cp/2002/192a(2002).htm (visited 14 Aug. 2002).

50. European Human Rights Court Rules Against Latvia, Radio Free Europe/Radio Liberty Online: Central and Eastern Europe (10 Apr. 2002); and Latvia's Parliament Passes Constitutional Changes Strengthening Language, Radio Free Europe/Radio Liberty Online: Central and Eastern Europe (2 May 2002), at http://www.rferl.org (visited 10 May 2002).

51. See Croatia's request for membership of the Council of Europe, PACE, 1996 Sess., Op. No. 195 (1996), available at http://assembly.coe.int (visited 30 Mar. 2002).

52. Honouring of obligations and commitments by Croatia, PACE, 2000 Sess., Res. 1223 (2000), available at http://assembly.coe.int (visited 30 Mar. 2002).

53. Press Release, PACE, Statement by Assembly President on Croatia's Co-operation with the Hague Tribunal (9 July 2001), available at http://assembly.coe.int/Main.asp?link=http%3A%2F%2Fassembly.coe.int%2Fpress%2FCP01%2F509a%2801%29.htm (visited 15 Sept. 2001).

54. U.S. CENTRAL INTELLIGENCE AGENCY, WORLD FACTBOOK 2002, available at http://www.cia.gov/cia/publications/factbook/geos/hr.html (visited 16 Apr. 2003).

55. Opinion on the Amendments of 9 November 2000 and 28 March 2001 to the Constitution of Croatia, adopted bythe Venice Commission, 47th Plenary Meeting,6-7 July 2001, available at http://www.venice.coe.int (visited 15 Sept. 2001).

56. Id. § 1.

57. Advisory Committee on the Framework Convention for the Protection of National Minorities, Opinion on Croatia, adopted 6Apr. 2001, available at http://www.humanrights.coe.int/Minorities/Eng/FrameworkConvention/AdvisoryCommittee/Opinions/Croatia.htm (visited 14 Aug. 2002).

58. Press Release, Council of Europe Press Service, Croatian local elections generally in line with international election standards (21 May 2001), available at http://press.coe.int/cp/2001/367a(2001).htm (visited 16 Apr. 2003).

59. SeeOpinion on the Amendments of 9 November 2000 and 28 March 2001 to the Constitution of Croatia, supra note 55.

60. Second Report on Croatia, ECRI (2001) 34, adopted 15 Dec. 2000 (issued publicly 3 July 2001), available at http://www.coe.int/T/E/human_rights/Ecri/1-ECRI/2-Country-by-country_approach/Croatia (visited 15 Aug. 2002).

61. Id. fl 19.

62. Id. The Croatian government's response is appended to the end of the report. Discrimination against Croatian Serbs was particularly widespread in war-torn areas of the country. According to Human Rights Watch, a large number of Serbs chose not to return home to Croatia out of a fear of abuse by local populations. HUMAN RIGHTS WATCH, WORLD REPORT 2002 (section on Croatia), available at http://www.hrw.org/wr2k2/europe7.html (visited 30 Mar. 2002). Romani people in Croatia also were discriminated against by local populations. The European Roma Rights Center (ERRC) has documented cases of beatings of Roma by Croatian police, as well as violence committed by groups of skinheads (also reported in Croatian daily newspapers Vechernji list and Jutarnji list). ERRC Reports available at http://www.errc.org.

63. See Second Report on Croatia, supra note 60.

64. Croatian Foreign Minister: Economic Woes Could Trigger Balkan Unrest, Radio Free Europe/Radio Liberty Online: Southeastern Europe (24 May 2001), available at http://www.rferl.org/newsline/2001/05/240501.asp (visited 16 Aug. 2002).

65. See Croatian government's response to ECRI's second report on Croatia for government statistics on numbers of returnees, supra note 60.

66. SeeSecond Report on Croatia, supra note 60.

67. Russia's request for membership of the Council of Europe, PACE, 1996 Sess., Op. No. 193, available at http://assembly.coe.int (visited 26 Aug. 2002).

68. Rapporteur Ernst Muehlemann, Russia's Request for Membership of the Council of Europe, PACE, 1996 Sess., Doc. No. 7443, available at http://assembly.coe.int/documents/ workingdocs/doc96/edoc7443.htm (visited 26 Aug. 2002).

69. Checkel, International Institutions and Socialization, supra note 8. According to Checkel, in the area of citizenship and minority rights, "Russia is undertaking efforts specifically designed to minimize the Council's ability to promote normative socialization within the country."

70. A list of Council of Europe treaties that Russia has either signed or ratified is available at http://conventions.coe.int/treaty/EN/findlistcountry.asp?CM=3 (visited 15 Apr. 2003).

71. First Element of Putin's Legal Reforms Comes into Effect, Radio Free Europe/Radio Liberty Online: Russia (2 July 2002), at http://www.rferl.org/newsline/2002/07/020702.asp (visited 15 Apr. 2003).

72. ES raskoshelivaetsia na sudebno-pravovuiu reformu v Rossii (The Council of Europe "Forks Out" Funds for Court-Legal Reform in Russia), 5 Nov. 2002, chronicled in DIGEST OF THE CENTER FOR JUSTICE ASSISTANCE, Moscow (no. 21, 4-16 Nov. 2002), at 3.

73. Jeffrey Kahn, A Marriage of Convenience: Russia and the European Court of Human Rights, Radio Free Europe/Radio Liberty Online: Russian Political Weekly (19 June 2002), at http://www.rferl.org/rpw/2002/06/20-190602.html (visited 10 Aug. 2002).

74. Burdov v. Russia, Eur. Ct. H.R., application no. 59498/00, 7 May 2002, available at http://www.echr.coe.int (visited 20 Aug. 2002).

75. Kalashnikov v. Russia, Eur. Ct. H.R., application no. 47095/99, 15 July 2002, available at http://www.echr.coe.int (visited 20 Aug. 2002).

76. Case Called Precedent-Setting, Radio Free Europe/Radio Liberty Online: Russia (16 July 2002), at http://www.rferl.org/newsline/2002/07/160702.asp (visited 10 Aug. 2002).

77. Checkel, International Institutions and Socialization, supra note 8.

78. Khadine L. Ritter, The Russian Death Penalty Dilemma: Square Pegs and Round Holes, 32 CASE W. RES. J. INT'L L. 129 (2000).

79. See Honouring of obligations and commitments by the Russian Federation, PACE, 2002 Sess., Res. No. 1277, available at http://assembly.coe.int/documents/adoptedtext/ta02/eres1277.htm (visited 27 Apr. 2002) (containing the most recent update of Russia's progress in the human rights field according to the Council of Europe). See Statement by the Russian Ministry of Foreign Affairs Regarding the Fifth Anniversary of Russia's Accession to the Council of Europe, 321-27-02-2001, 28 Feb. 2001, available at http://www.russiaeurope.mid.ru/RussiaEurope/280201_00.html (visited 15 Dec. 2001) (providing the official Russian government statements).Sergei M. Mironov, Chairman of the Federation Council, Federal Assembly of the Russian Federation, Statement at the plenary meeting of the 53rd session of the Parliamentary Assembly of the Council of Europe, 24 Apr. 2002, available at http://assembly.coe.int/Documents/Records/2002-2/E/0204241000E.htm (visited 28 Apr. 2002).

80. ECONOMIST, supra note 5.

81. European Convention for the Protection of Human Rights and Fundamental Freedoms, supra note 9, at art. 15.

82. Letter from Russian Foreign Minister Igor Ivanov to Council Secretary-General Walter Schwimmer, 10 Jan. 2000. Included in Request for explanations concerning the manner in which the Convention is implemented in Chechnya and the risks of violation which may result therefrom, Report by the Secretary-General on the use of his powers under Article 52 of the European Convention on Human Rights in respect of the Russian Federation, SG/Inf(2000)21, available at http://www.coe.int/Eng/Art 52/SGINF(2000)21%20en.htm (visited 10 Feb. 2001).

83. For example, the European Union sponsored Resolution 2000/58 Situation in the Republic of Chechnya of the Russian Federation on 25 Apr. 2000, at the 56th Session of the UN Commission on Human Rights, but once it was adopted, the European Union did not spearhead its implementation. EU leaders argued that Russia was making progress toward accountability. The United State's sole response to human rights violations in Chechnya was largely rhetoric and implied a tacit understanding that the Chechen War was Russia's own problem. Putin neither accounted for abuses in Chechnya nor complied with the UNCHR resolution. The Russian government also refused most human rights groups access to Chechnya and neighboring regions. In addition, in April 2002, the 58th Session of the UNCHR failed to adopt a resolution criticizing the Russian government's failure to curb human rights abuses by its armed forces in Chechnya and prosecute law-breakers.

84. Ian Black, Russia Walks Out on its European Critics, GUARDIAN (Manchester) 7 Apr. 2000, at 1.

85. Peter Baker, European Council Restores Russia's Rights, WASH. POST, 25 Jan. 2001, at A20.

86. The European Committee for the Prevention of Torture, Public Statement Concerning the Chechen Republic of the Russian Federation, 10 July 2001, available at http://www.cpt.coe.int/en/press/20010710en.htm (visited 15 Sept. 2001).

87. Nineteenth interim report by the Secretary General on the presence of the Council of Europe's experts in the Office of the Special Representative of the President of the Russian Federation for ensuring Human Rights and Civil Rights and Freedoms in the Chechen Republic (period from 10 to 30 Apr. 2002), SG/Inf(2002)23/ 17 May 2002, available at http://www.coe.int/T/E/Secretary%5Fgeneral/Documents/ (visited 22 Apr. 2003).

88. Rapporteur Rudolf Bindig, Report: The human rights situation in the Chechen Republic, PACE, Committee on Legal Affairs and Human Rights, 2003 Sess., Doc. No. 9732, available at http://assembly.coe.int/Documents/WorkingDocs/Doc03/EDOC9732.htm (visited 10 Apr. 2003).

89. Id; The human rights situation in the Chechen Republic, PACE, 2003 Sess., Res. No. 1323, available at http://assembly.coe.int (visited 22 Apr. 2003); The human rights situation in the Chechen Republic, PACE, 2003 Sess., Res. No. 1600, available at http://assembly.coe.int (visited 22 Apr. 2003).

90. Id.

91. Press Release, Council of Europe Press Division, Council of Europe stands ready to assist Russian with new Treaty on the Chechen Republic (2 Apr. 2003), available at http://press.coe.int/cp/2003/174a(2003).htm (visited 15 Apr. 2003).

92. Russian President Vladimir Putin, Speech at the Meeting with Participants of 24th Conference of European Ministers of Justice, Moscow (4 Oct. 2001) available at http://www.russiaeurope.mid.ru/RussiaEurope/speech8.html (visited 10 Dec. 2001).

93. Human Rights Watch, Council of Europe Cautioned on Early Admission for Armenia, Azerbaijan (26 Jan. 1999), available at http://www.hrw.org/press/1999/jan/aze0125.htm (visited 10 May 2002).

94. WENDT, supra note 14, at 160.