Prof. Alec Stone Sweet: Impact of the European Convention

Prof. Alec Stone Sweet: Impact of the European Convention


[Wilkes] Welcome to the MacMillan Report I’m Marilyn Wilkes, your host, and today our guest is
is Professor Alex Stone Sweet The Leitner Professor of Law, Politics and
International Studies, Professor Stone Sweet’s interests are comparative and international politics and law and European integration. His research focuses on how rule systems emerge and evolve over time and with what consequences for society. Most of his published work approaches this
question by looking at how new legal systems develop. Today, we’ll be talking about his newest book
called “A Europe of Rights: The Impact of the European Convention on Human Rights on National Legal Systems”.
Welcome, Professor Stone Sweet.
[Stone Sweet] Thank you. [Wilkes] Most of your research focuses on new legal
systems and how they evolve. Why are you interested in that? [Stone Sweet] Well, my work is little bit peculiar in
that most legal scholars and most political scientists study full-blown legal systems or legal systems that have already matured and are already functioning, usually
in a successful way, and I’m interested in brand new legal systems, because we don’t know
if they’re going to be successes or failures and because when people build new legal systems they’re constituting new political communities
or new systems of governance and when older, pre-existing political communities redesign their legal systems, get new constitutions,
or set up new court systems, they are redefining who they are, politically and as a community.
So I’m interested in what are the bases for when legal systems will be
successful and when they’ll fail,
and what their functions are, and it turns out that
legal systems, and judges and courts in particular,
are critical to how human communities are able to reproduce
themselves over time, how societies are able to integrate
over time as circumstances change, how economies are able to grow and integrate. So for the last ten years or twelve years now I’ve been working a lot on European immigration
and showing how important is has been
for integration particularly social and economic integration, how people interact across borders in Europe, how important the legal system has been for the success of that project. On the contrary, in places like Africa
and in Latin America, integration projects haven’t worked, and that’s partly because the legal systems have been so ineffective. [Wilkes] So what legal systems are you most interested
in today? [Stone Sweet] Right now, I’m developing a project on
private transnational governance and I’m interested in how multinational corporations
and their lawyers are building a new legal system, but
a private legal system that doesn’t rely on the state, to manage their
commercial relationships. So almost all contracts now– Well, when Nike has to make tennis shoes in Malaysia or
Vietnam, they have to have a contract with somebody that is going to make those
shoes in those countries, and most of these kinds of contracts now specify arbitration to deal with contractual disputes
rather than court systems, and so through these arbitration clauses in contracts private companies are building a kind of
private court system for transnational commerce, and I find that fascinating because
once again it allows us to look at the dynamics of how new legal systems or new court systems evolve. Furthermore, in contracting, when multinational corporations
and their lawyers build new contracts, often today, because they’re put under pressure from NGOs and interest groups that are interested in environmental protection or human rights records, they want these corporations to put directly
into the contracts human rights standards, workplace conditions, environmental protection
standards, and so on and we find that corporations are doing
this more and more which then raises the question of how these
standards, how these codes of conduct which again are purely private,
they’re not obligatory, are nonetheless being monitored
and enforced. And then companies have multiple ways of monitoring and enforcing it.
They can do it themselves, they can hire an accounting firm like Coopers & Lybrand or Andersen,
these huge accounting firms. So you used to just audit the contract
from its financial aspects and nowadays, they do what’s called social accounting or environmental accounting: they look to see how the contractual relationship is doing, is faring, on the human rights side or
on the environmental protection side. Or a third way that they can do it, which is my
preferred way, is that they can ask a third party, a neutral
third party, to go directly to, say, Vietnam or Malaysia and look and see how the workplace is actually
being managed and then certify that workplace, and the most important
or one of the most interesting organizations that does this is called
Social Accounting International and it’s funded by labor and by corporations themselves and by NGOs and interest groups
who are interested in human rights and environmental protection. So I find this fascinating because
it’s a kind of transnational legal system that’s purely private; it doesn’t rely on the state but it is increasingly important for managing
global economic activity. [Wilkes] So tell us about your new book, and what
is the European convention? Well the European Convention on Human Rights was
signed by ten states in 1953 and it entered into force in 1953. Today, it covers 47 countries in Europe and 850 million people. So it’s also the most active and most effective international
human rights regime in the world. Last year it received 50,000 –more than 50,000 petitions–from individuals directly to it, and it issued more than 1,500 rulings. It’s the single most active court in the world. To give you a comparison, the Supreme Court of the United States issues fewer than 100 rulings per year.
This court, this transnational court, made up of 47 judges from 47 different countries issues 1,500+ decisions a year on the merits. [Wilkes] Wow, that’s fascinating. That’s quite a bit of research to follow, I would imagine. Yes, the new book traces,
or attempts to trace, the impact of the European Convention on Human Rights
and how it’s interpreted by the European Court of Human Rights on the member states themselves, on the nation
states themselves, the contracting states. So instead of a focus where we look just at
the European Court of Human Rights and what it does and how it interprets rights, we care about how legislators, and governments, administrators, and judges receive or adapt to or coordinate their activities, their
decision-making to the rights that are in the convention as they’re interpreted over time by the European Convention on Human Rights.
Now the convention completely changed in 1998 when the states decided to make the jurisdiction of the European court compulsory. By that, it means that states can’t block applications that come from their own citizens
to the court against them from going to court, and they also made a right of all citizens, or for that matter all inhabitants of the convention territory, that is all forty
seven countries, they gave an absolute right to individuals
to petition directly the court when they believe that their rights had
been violated after remedies have been exhausted in those
countries. So in 1998 then, the court really became
a kind of transnational constitutional court for human rights in the convention. [Wilkes] Okay, so how much impact has the European Convention
on Human Rights actually had on national political and legal
systems?
[Stone Sweet] Well in the last twenty years, and particularly (and this has accelerated in the last decade,
especially since the changes in 1998 that I just mentioned) the court’s impact has become really profound across all the contracting states. Of course, some states have been influenced
more than others Those states that have very, very, very good
human rights records with good systems of constitutional justice with constitutional courts that protect rights fairly comprehensively in the national legal
order, such as Germany, and Ireland, and Spain, they haven’t been impacted as much. The convention doesn’t fill those gaps. But in other systems where they don’t have a bill of rights and
a constitution
0:09:00.6800:09:02.329
and most countries, actually in the old Western Europe, didn’t have a bill
of rights in their countries and they didn’t have judicial review. That is, they didn’t have, judges didn’t have the power of striking down or annulling as unconstitutional statutes that emanated out of the parliament. Parliaments
were sovereign, parliaments were supreme and the acts that they produced, legislation,
statutes, were supreme in the legal order. In those systems, there’s been profound change
because the convention now functions as a kind of surrogate
bill of rights, it becomes the bill of rights and to the extent to which judges can directly
enforce them is the extent to which the convention starts
to have direct effect in the legal system. In most systems now since 1998, in most systems, there’s only a couple of exceptions, the convention has been incorporated into the national legal system at a level that’s above statutes above legislation the below that of the constitution. What that means is that individuals can plead rights from the convention directly
in national courts against their own national government and judges are expected to enforce them, even
again statutes. So again, what this means is that the
way the convention has developed and the way that the convention has been incorporated into national
law–that is, with that super-legislative status–means that the convention functions as a kind of constitutional
bill of rights for all those states that didn’t have it before. [Wilkes] So your book shows that the convention system
is presently at a critical juncture. What are the major challenges facing the European
Court on Human Rights today? Well, in 1990 the convention system added 24 new states with 450 million people. This is called “eastern enlargement”. This happened
after the fall of the Berlin Wall and the end,
the disintegration of the Soviet bloc. All of those countries east of Western Europe,
east of the European community and European Union, drafted new constitutions,
were engaged in democratization efforts, and the Council of Europe, of which the convention is a part, decided–the political body, the states in the Council of Europe,
the Western European states–decided that it was important to bring Eastern Europe into the Western
European into the convention system in order to bolster democratization efforts, in order to
give them to provide a bulwark for these
new systems so that they wouldn’t slide back into authoritarianism and so on, and one of the problems has been that some
of these states were not really ready to be brought into this new system, and this is certainly this case of the Ukraine Georgia, Russia, Turkey, Romania, Bulgaria. Today, more than half of all the 50,000 petitions that come
in each year come from only four states: Romania, Ukraine, Russia, and Turkey. In these places, you have massive human rights
failures of a systemic kind. You have judges who are underpaid or corrupt. You have judges who are afraid of political reprisals if they do their
job correctly. You have governments who actually censor the mail and if they see mail– Uh, I should back up. Individuals can apply directly to
the conventions through a letter, basically. It’s incredibly simple and costless to register one of these complaints, and some governments, including Russia, have
actually stopped mail going out of Russia to the Strasbourg Court, to the European Court of
Human Rights, because they don’t want the European Court to handle some of these kinds of complaints. And a further problem is, as you know
if you’ve been watching the news, Russia, for instance, is engaged in in virtual civil war in Chechnya, and it’s been engaged in some military action in Georgia, all of those actions will generate many complaints and petitions that will all come
to the court and unlike the American Supreme Court which
has a political questions doctrine and has a set of other doctrines that says that
when we’re dealing with foreign policy and war issues, think of Guantanamo, we defer to our President. We don’t really want to apply the same standards that we might apply to government action within America to what the government does
outside of America. Well the European Court of Human Rights never does that. There
is no political question. Every question, according to the court, every
question needs to be examined and dealt with on its merits,
according to the law and according to the convention, and that means that no matter how political or how controversial a
question is that comes up in any of these 47
states, the court is almost certain to get it. At the same time, the court knows that when it’s dealing with some of these cases, some of these difficult cases of countries that are unable to protect human rights on their own through their own domestic processes, through their own domestic institutions, they know that that their capacity to actually impact
on them is quite low. So, the court can continually handle hundreds and hundreds, sometimes thousands of the same
kinds of complaints and give direction to the Russian authorities or to the
Ukrainian authorities on how the need to change their system in order to stop generating these kinds
of complaints, but they also can know that the Russians and the Ukrainians are unlikely to succeed at reforming their own institutions. [Wilkes] Thank you for sharing some of your work with
us today. For more information on Professor Stone Sweet, his research, and of course, his newest book, please visit our web site at www.yale.edu/macmillanreport Be sure to join us again for another episode
of the MacMillan Report, made possible through finding from the
Whitney and Betty MacMillan Center for International and Area Studies at Yale. Thank you very much.

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