The Power Politics of Regime Complexity: Human Rights Trade Conditionality in Europe Emilie M. Hafner-Burton Princeton University ehafner@princeton.edu The European Union (EU) is transforming the politics of repression and they are pushing their agenda one state at a time through the use of regional trade agreements (RTAs). To date, a considerable number of these agreements promise to defend human rights. More are in the process of negotiation. i This paper explores how regime complexity shapes Europe s politics of human rights conditionality by encouraging forum shopping when actors choose among institutions to achieve the most favorable result. It is not a rosy account. Nesting and overlap create four flavors of forum shopping, creating incentives for rivals to (1) circumvent the rules they do not like, (2) challenge the rules they find objectionable, (3) invoke venues a la carte to govern a specific issue but not others, and (4) flip-flop between venues when their interests change. Each creates competition between venues and actors for authority over the rules, setting hurdles for implementation and producing apparently dysfunctional outcomes. But they can also dodge cooperation failures and make enforcement possible. The Mechanics of Forum Shopping This paper takes the view that people are smart and generally rational: When forum shopping is available more than one venue is on hand actors prefer to engage the most effective venue for 1
their purpose; they search among the options and choose venues based on perceived fit to the task. When everyone wants the same thing, actors will choose the same venues, skirting conflict, and forum shopping will create incentives to let some fall by the wayside. But when actors want different things, regime complexity generates various kinds of incentives for rivals to choose different venues, creating the potential for conflict. Nothing could be truer in Europe when it comes to conditionality. The Architecture of European Conditionality Europe negotiates trade rules in a complex environment. Human rights conditions are made, contested, and implemented in an atmosphere characterized by nested and partially overlapping institutions (Figure 1). The European Community creates RTAs that are nested inside the World Trade Organization (WTO) and which place commercial restrictions on cooperation; ii the Community is also nested within the Vienna Convention on the Law of Treaties (VCLT) which places normative restrictions on breach of contracts. iii But that is not all. EU Member States also belong to an overlapping regional regime governed by the European Convention on Human Rights (ECHR), iv as well as a global human rights regime governed by the United Nations (UN). v The Community and its Member States have made commitments to these various venues. Some of their obligations are ostensibly incompatible, and there is no universally accepted hierarchy of norms for resolving conflicts among them. What lessons can be learned? I suggest four. 2
Figure 1: The Institutional Architecture of Human Rights Conditionality Circumventing Hypothesis 1: Given a set of options, when the preferred institution fails to solve a one-off problem and cannot be easily fixed, actors will turn to the second-best option, circumventing the failure. European policymakers, for example, have used RTAs to circumvent their failures in the WTO to enforce norms that overlapping human rights institutions cannot protect. Europe has long been pushing for the protection of human rights. In the past few decades their attention has focused on the security of people in other countries around them. vi Despite best intentions, existing human rights institutions whether global or regional have done little to advance the cause, most failing to enforce the norms they proffer. vii So politicians have turned elsewhere for a solution to the overlapping institutions that might be able to do something about it, the trade regime. The EU wants trade conditionality in the WTO to enforce the protection of human rights, but most other states do not and mobilization against the idea has been considerable. viii The EU cannot override the majority of WTO members on this issue; however, they can 3
circumvent the venue in favor of another set of institutions that could give them what they want trade and human rights. Nested inside the WTO, RTAs offer many of the same benefits: They promise wealth and are reasonably enforceable. And they give Europe more power to set the rules over developing countries. While the EU cannot force human rights into WTO negotiations, they can and have forced human rights into their RTAs, offering profits to poorer countries while setting the rules of exchange. ix And while nesting by no means caused these rules to be made, it created the option for Europe to differentiate between venues and exercise their authority regionally. Challenging Hypothesis 2: Given a set of options, when the preferred institution fails but the issue is on-going or other issues are implicated, actors will turn to the option most capable of challenging the failure. Circumvention is not practical when loss on one issue area will spill over into others. In these cases, nesting and overlap create incentives for actors to choose venues that help them get what they want by challenging the rules they do not like. This has certainly been the case in the EU where various government bureaucracies and non-state actors have done their best to influence conditionality by defying the rules. An extraordinary example is the European Parliament (EP), a weak legislative body nested in the EU system that has opportunistically challenged Community policy and used RTAs to win more influence over European politics. The European Commission and Council largely make trade rules, but over time, the Parliament has come to have a genuine influence. Regime complexity has much to do with it. 4
Before the Single European Act (SEA), the EP was only consulted in the passage of new RTAs. But after the SEA entered into force the Parliament won the right to veto agreements. x Citing their overlapping obligations under international and regional laws to protect human rights, the Parliament has repeatedly exercised this right. Nesting gave them the institutional authority to force overlapping commitments for human rights in to regional trade negotiations; it has also given its Members incentives to use this authority as a personal strategy to gain power in Community decision-making. Such strategies of political challenge and opportunism have not been limited to the Parliament. Regime complexity in Europe has also encouraged Member States to challenge the rules for their own interests. xi And overlapping trade and human rights regimes have created opportunities for protestors to challenge EU foreign policy, providing multiple venues in which actors can mobilize criticism of other venues and boost their chances of being heard. Institutions A La Carte Hypothesis 3: Given a set of options, actors will at times help themselves to a venue and at other times pass-over or re-interpret that venue when it is in their interests; as enforcement gets weaker, incentives to use institutions a la carte grow. One example is the Europe sampling of the VCLT, an institution that has been called upon to shape the politics of conditionality in opposing ways. The European push to develop trade ties with other governments began in the 1970s as conflicts distinguished by violations of human rights developed in Africa and Eastern Europe. The Community was widely criticized because their RTAs gave profits to repressive dictators around the world. xii But a legacy of colonialism had also created interests by some Member States (although not all) to strengthen 5
these trade ties. And the Community appealed to nesting to solve its problem. They invoked the same VCLT legal principle on which they based their right to pursue market influence abroad pacta sunt servanda and used this as a justification for non-action. xiii Many years later some members of the Community would again invoke the VCLT for the contrary reason as a strategy to make conditionality enforceable across all RTAs. The motives would be genocide. In 1991, extreme violence broke out in Yugoslavia. Bound by a trade agreement, the Community faced its neighbor s crisis with no standard legal recourse to pull out from its obligations. xiv Although the Community would eventually suspend trade concessions to Yugoslavia, xv the lesson learned was clear: Put in place a new suspension clause compatible with obligations nested under the VCLT. This safety value would later allow the Community a credible way to suspend its trade commitments in the event of another such crisis. xvi But the VCLT would be called upon a la carte only one year later to justify yet another goal: watering down enforcement. In 1992, the Community created RTAs with Albania and the three Baltic states, allowing for either party to suspend the contract immediately and without consultations. xvii This Baltic clause proved instantly controversial for not all Member States supported the principle of suspension without consultations. Nesting arguments in the VCLT had been used to justify making human rights essential elements of trade in the first place; but they were now invoked to defend policies of weaker enforcement. Opponents argued that the Baltic provisions clashed with a core principle of Community legal order, that all pacts must be respected, and the VCLT was again appealed to. The Council abandoned the Baltic clause in favor of a weaker rule that allows suspension of an arrangement only as a last resort after all other appropriate measures have been taken. xviii The standard language of the Community s 6
clause today reflects this balance, justified partly by consistency with overlapping commitments to international law on treaties completely lacking in enforcement. Flip-Flopping Hypothesis 4: Given a set of options, actors will flip-flop from using one venue to another when it is in their interests; as costs of defection fall, incentives to flip-flop grow. Europe s trade dealings with Australia are a good example. In 1996, the Council adopted a negotiating mandate for a non-preferential RTA with Australia. By law, the Community proposed human rights as an essential element, including a standard suspension mechanism and references to the UN Universal Declaration on Human Rights (UDHR). But the Australian government vehemently opposed the policy. They would not accept conditionality and contested the reference to the UDHR on the grounds that the agreement failed to make appropriate reference to the International Bill of Rights more broadly, ignoring two UN Covenants protecting human rights. xix But this was an excuse. xx A ruling by the European Court of Justice (ECJ) had previously determined that the Community did not have competence to adhere to international human rights laws; xxi only Member States could be parties to such conventions. The Community, however, had no intention of severing ties with Australia. They simply flip-flopped, replacing the intended trade agreement with a less significant instrument in the form of a Joint Declaration (1997) xxii that would shift attention away from their overlapping commitments to the human rights regime. This example has more general implications. Nesting and overlap have exacerbated the complexity of implementation and provided incentives for the Community to flip flop among venues to suit their competing interests for putting laws into practice. The density of the 7
institutional architecture within which the EU operates makes a strategy of vagary appealing insofar as interpretation has been left principally to the implementation process. To be sure, implementation has occurred. Since 1996 the human rights clause has been invoked as the basis for trade consultations and for suspension of aid or other measures with Cameroon, Comoros, Fiji, Guinea Bissau, Haiti, Niger, Sierra Leone, and Togo, among many others. xxiii But it has also been inconsistent and politically driven, as the Community sites their obligations to protect human rights under international law in some cases of violence and completely ignores these obligations under other cases where repression is rampant but trade continues. Conclusion.. 8
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iv All Council of Europe member states are party to the Convention, which establishes the European Court of Human Rights. v In addition to the Universal Declaration of Human Rights there are seven core international human rights treaties. vi Alston 1999. vii Hafner-Burton and Tsutsui 2005; Neumayer 2005; Hathaway 2002. viii See the WTO First Ministerial Declaration, Adopted in Singapore in December 1996. ix Hafner-Burton 2006. x Bieber 1990. xi Consider one example: As a way to challenge a newly formed RTA with India, Portugal contested the Community s capacity to include a human rights clause in its trade arrangements. The ECJ ruled that provisions concerning the respect for human rights and democratic principles did not affect the character of the arrangement and that Article 181 of the Treaty gave an adequate legal basis for the adoption of human rights. For comments on the case see Steve Peers (1998) Case C-268/94 Portugal versus Council [1996] ECR I-6177 in 35 CMLR 1998, pp. 539-555. xii Brandtner and Rosas 1998 xiii Miller 2004; Pinelli 2004 xiv Interview record #13 2004. xv Council Regulation (EEC) No. 3300/91 of 11 November 1991 (OJ 1991 L 315); Kuyper 1996. xvi Brandtner and Rosas 1998. xvii Council of the European Union 1992a. xviii Bartels 2005. 11
xix Fierro 2003. xx European Report 1997. xxi See Opinion 2/94 on accession to the ECHR. xxii A Joint Declaration on EU-Australia Relations was signed in Luxembourg on 26 June 1997 as a replacement. See Bull. EU 6-1997, point 1.4.103. xxiii EU Annual Human Rights Report, 10 October 2003 13449/03 COHOM 29. 12