CC BY
45
УДК 327.8
Вестник СПбГУ. Сер. 6. 2015. Вып. 1
P. Guasti, A. Niemann
LOST IN TRANSLATION: HUMAN AND MINORITY RIGHTS DISCOURSES OF THE EUROPEAN UNION AND RUSSIA
The legal documents drafted in April 2013 to enable EU's accession to the European Charter ofHuman Rights represented a further confirmation of the unprecedented victory of democracy and human rights in Europe. However, with the outbreak and evolution of the armed conflict in Eastern Ukraine in 2014, the victory of democracy and human rights in Europe is less straightforward. The conflict highlights the clash over the understanding of human rights between the two major political powers on the European continent — the EU and Russia. This article complements quantitative data on human rights violations with qualitative discourse analysis of human rights frames. The highly contentious case of the Russian speaking minority in Latvia is selected as a test case. Presented analysis shows that the Russian speaking minority in Latvia is lost in translation — caught between the Latvian notion of non-citizen as a legally justified statelessness and the Russian notion of compatriots, victims of aggressive Western expansion. Neither the Latvian nor the Russian official discourse recognized the Russian speaking minority as an autonomous entity; rather for both the minority issue is instrumentalized for domestic and foreign policy reasons — identity is instrumentalized and securitized. The EU whose hands are tied is largely absent. The relationship between the actors is polarized and antagonistic, and as the situation of Ukraine shows, with further potential for violence. Refs 35. Tables 3.
Keywords: human rights, minority rights, European Court of Human Rights, Russia, European Union, Latvia.
П. Гасти, А. Ниманн
ПОТЕРЯННЫЕ В ПЕРЕВОДЕ: ДИСКУРСЫ ПРАВ ЧЕЛОВЕКА И МЕНЬШИНСТВ В ЕС И РОССИИ
В апреле 2013 г. была создана правовая база, позволяющая ЕС присоединиться к Европейской хартии по правам человека, что стало очередным подтверждением беспрецедентной победы демократии и концепции прав человека в Европе. Однако конфликт в Восточной Украине в 2014 г. также продемонстрировал, что победа демократии и прав человека в Европе не так однозначна. Конфликт подчеркнул столкновение концепций прав человека, принадлежащих двум основным политическим силам в Европе — ЕС и России. Данная статья объединяет количественный подход к нарушению прав человека с дискурс-анализом концепции прав человека. Для иллюстрации выбран пример русскоязычного меньшинства в Латвии как один из наиболее спорных случаев. Анализ демонстрирует, что русскоязычное меньшинство в Латвии «потеряно в переводе»: оно оказалось заложником и латвийской концепции неграждан, оправдывающей отсутствие у группы жителей гражданских прав, и российской концепции соотечественников, жертв агрессивной западной экспансии. Ни латвийский, ни российский официальный дискурс не признает русскоязычное меньшинство в качестве особой категории. Обе стороны используют его в качестве инструмента внутренней и внешней политики. Таким образом, идентичность оказывается инструментализированной и секюритизированной. Компетенции Евросоюза в этой области ограничены. Отношения между соответствующими акторами поляризированы и антогоничны, и, как показывает и ситуация на Украине, это создает потенциал для насилия. Библиогр. 35 назв. Табл. 3.
Ключевые слова: права человека, права меньшинств, Россия, Евросоюз, Латвия, Европейский суд по правам человека.
Гасти Петра — старший преподаватель и исследователь, Институт политологии Университета Майнца; Johannes Gutenberg University Mainz, D 55099 Mainz, Germany; guasti@uni-mainz.de
Ниманн Арне — профессор международной политики, Университет Майнца; Johannes Gutenberg University Mainz, D 55099 Mainz, Germany; arne.niemann@uni-mainz.de
Guasti P. — Senior Lecturer and Researcher at the Institute of Political Science, Johannes Gutenberg University Mainz, D 55099 Mainz, Germany; guasti@uni-mainz.de
Niemann A. — Professor of International Politics, Johannes Gutenberg University Mainz, D 55099 Mainz, Germany; arne.niemann@uni-mainz.de
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Introduction
In April 2013, legal documents were drafted and the EU's accession to the European Charter of Human Rights (ECHR) was official. It was a further confirmation of the unprecedented victory of democracy and human rights in the post WWI and WWII era in Europe. However, from February 2014 onwards with the outbreak and evolution of the armed conflict in Eastern Ukraine, the victory of democracy and human rights in Europe, as well as peaceful coexistence, cooperation and integration in post-war Europe is less straightforward. The conflict in Eastern Ukraine, in which both sides speak of violations of human rights and justify their action with the need to protect human rights and minorities, highlights the clash over understanding of human rights between the two major political powers on the European continent — the EU and Russia.
The current situation exemplifies an interesting paradox: although Europe overall became more democratic and friendlier towards human rights especially in the last two decades, the number of human rights violations has continued to grow significantly. This fact hints at the limits of quantitative approaches to the study of human rights. This article proposes to complement the data on human rights violations with qualitative discourse analysis of human rights frames. As a test case we choose the highly contentious case of the Russian speaking minority in Latvia.
The article proceeds as follows. First, we discuss the literature on international human rights regimes and their efficacy. Then we introduce the European Court of Human Rights (ECtHR) and the literature surrounding it. Next, we briefly present quantitative data of the human rights (HR) violations in 47 European countries between 1995 and 2012. Next we propose qualitative methodology to analyse existing HR frames. Finally, we conclude with the study's implications, and discuss avenues for future research.
Advancement of human rights
The advancement of human rights is still an on-going process, yet there are already discernable patterns that merit examination. The first generally recognized comprehensive charter of human rights was the Universal Declaration of Human Rights of 1948, which formed the basis of a principally uncontroversial overlapping consensus on international human rights [1]. Its proclamations were legislated in a number of codified agreements, such as the European Convention on Human Rights (drafted in 1950 and made effective in 1953), the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social and Cultural Rights (1966).
In the 1990s events such as the Rwandan Genocide (1994) and the Srebrenica Massacre (1995) fuelled not only academic and political debates, but also the introduction of new international norms, albeit at a slower rate. One of these norms was the Responsibility to Protect (established in 2005), which for the first time recognised the obligation of the international community to intervene if states and their rulers are unable or unwilling to protect citizens from human rights violations [2]. More recently, the EU Charter of Fundamental Rights (ratified in 2000, entered into force in 2009) has reinforced the importance of human rights in the international system [3].
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Human rights regimes
Human rights regimes are institutions that hold governments accountable for their domestic and internal activities. According to Moravcsik [4], human rights regimes are not enforced by interstate action, as governments rarely challenge one another, but exist (1) as a result of states' aims to enhance the credibility of their domestic policies by binding themselves to international institutions and (2) as a way of reinforcing domestic changes in recently democratized countries. According to Risse and Sikkink [5, 3] human rights define the category of liberal democratic states, and thus contribute to the identity formation of states. Belonging to a human rights regime is akin to belonging to a club of advanced states.
The Central and Eastern European countries were quick to accept the obligations of ECHR membership, including Protocol 11, which permits the ECtHR to require all new signatories to accept compulsory jurisdiction. In general, democratising states join international organisations more frequently than other countries, especially those where existing members are democratic. Joining such organisations reduces the prospect of reverting back to an authoritarian regime [4, 6].
As Hathaway [7] notes, international human rights treaties fulfil a dual role: their ratification enhances the credibility of a state and can also relieve external pressure for human rights' protection. However, because monitoring mechanisms are generally weak, there are few incentives for governments to implement policies stemming from these commitments, which can lead the ratifying country to change its practices less than expected. Liberal democracies have a normative commitment to the aspirations embedded in the treaties, but it is more difficult for less democratic countries to conceal the dissonance between expressive and actual behaviour. The ratification of an international human rights treaty creates an opportunity for a norm entrepreneur to provoke gradual internalization of the norms embodied in the treaty [7, p. 2016-2017; 8].
While the importance of human rights in the international arena has grown [9], the enforcement of such rights is still difficult and human rights regimes remain rather state centric and are often weak [10]. Still, human rights norms and treaties, while difficult to enforce, have had an influence on the behaviour of states. Intermediate positions include Hafner-Burton and Tsutsui who demonstrate that human rights treaties can only make a difference under certain conditions — the absence of severe repression, relative stability and an active civil society — and that the worst abusers of human rights fail to reform even upon accession to a human rights treaty [11, p. 422-423].
The scholarly literature also suggests that international courts (ICs) are an important part of international human rights regimes. For example, ICs are more independent than domestic courts because they allow access to private litigants and compulsory jurisdiction. Moreover, they can introduce additional checks to domestic jurisdiction by establishing international legal regimes [12]. Among all international courts, the ECtHR is the most powerful international enforcement mechanism; it is also the only court whose decisions are respected by its member states [13, p. 5]. In the next section we investigate the ECtHR.
The European Court of Human Rights
The European Court of Human Rights (ECtHR) is a supranational court headquartered in Strasbourg, France. It was first established under the auspices of the Council of Europe
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in 1959, and sprang from Article 19 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). Since the ECHR came into force in 1953, it has aimed to define and protect a clear set of civil and political rights for all persons within the Council of Europe member-states, regardless of whether those persons are refugees, immigrants, stateless persons, or citizens [4, p. 218]. The Court is responsible for monitoring compliance and respect for the human rights of 800 million Europeans across the 47 Council of Europe member-states that have ratified the Convention [14].
The ECtHR is highly respected by the member states of the Council of Europe, embedded in the legal framework of its member states, and gradually increasing in prominence. The judgments of the Court are binding in the states concerned and have been effective in causing governments to revise their legislation and administrative practices [15]. In the last two decades the number of cases has skyrocketed. The increased number of applications is also partially due to the 1990s expansion in the number of states acceding to the ECHR. Between 1959 and 1998, for instance, the ECtHR ruled on a total of 837 applications. However, the number increased to 177 judgments in 1999, 695 judgments in 2000, and 888 judgments in 2001. From 2005 to 2012 the number of judgments delivered by the ECtHR was consistently over 1,000 [14].
Looking at the ratio between applications and judgments, the actual number of judgments is very small. According to Janis et al. [16, p. 28], ECtHR received more than 261,000 applications between 1998 and 2005, of which 6,535 (2.5%) were admitted [cf. 17]. In the 83% of cases in which the court delivered a judgment, the ECtHR found at least one violation of the European Convention on Human Rights. With respect to the subject matter of these cases, nearly half of the judgments concerned violations of Article 6 on the right to a fair trial. In addition, 55% of violations infringed on the foregoing Article 6 or Article 1 of the protocol concerning the protection of property. About 13% of the violations tackled Article 2 on the right to life or Article 3 on the prohibition of torture and otherwise inhuman treatment [14].
The literature on the ECtHR generally casts it in a very positive light. State compliance with the Court's judgments is nearly as consistent as that of domestic courts. Numerous empirical examples substantiate this statement. For instance, Moravcsik [4, p. 256] shows that when the Court found the United Kingdom's exclusion of homosexuals in the armed forces a violation of the ECHR, the government complied with the verdict. Van der Vet [18] lists cases of the disappearances of Chechens presented to the ECtHR by human rights lawyers and NGOs to highlight how international organizations or groups can successfully litigate on behalf of individuals.
In short, the literature [19, 20] concurs that the Court has made significant contributions to the enhancement of human rights in Europe by changing democratic opportunities for individuals at both the domestic and supranational level. The comparison presented below between EU and non-EU countries shows that in terms of judgements as well as actual violations, this argument holds for the EU countries, which represent the majority of cases. Table 1 shows differences among the EU countries, which remain significant over time and even in the case when the population size is considered. Comparing the old and the new EU member states, considering the length of EU membership as an exposure to democratic values of human rights, also yields only limited results. Rather, as the recent analysis of Guasti et al. [21] indicates, the difference is best explained by the presence of economic capital and civil society. In this sense, the ECHR human rights regime represents an
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opportunity structure, which can be utilized when actors (such as civil society) are present and have resources to bring the case to the Court.
Table 1. The number of judgements at the European Court of Human Rights in EU 28 (without Cyprus)
1995 2000 2005 2010 2012
Austria 14 21 22 19 29
Belgium 1 2 14 4 6
Bulgaria 0 3 23 81 64
Croatia 0 0 26 21 29
Czech Republic 0 4 33 11 15
Denmark 0 6 3 0 1
Estonia 0 1 4 2 4
Finland 3 8 13 17 5
France 12 73 60 42 29
Germany 1 3 16 36 23
Greece 3 19 105 56 56
Hungary 0 1 17 21 26
Ireland 1 3 3 2 2
Italy 29 396 79 98 63
Latvia 0 0 1 4 14
Lithuania 0 5 2 8 12
Luxembourg 1 1 1 7 2
Malta 0 1 2 4 3
Netherlands 5 6 10 4 7
Poland 0 19 49 107 74
Portugal 1 20 10 19 23
Romania 0 3 33 143 79
Slovakia 0 6 29 39 23
Slovenia 0 2 1 6 22
Spain 2 3 0 13 10
Sweden 0 1 7 6 15
United Kingdom 8 27 18 21 24
Total EU 81 634 581 791 660
Total ECtHR 84 683 1103 1495 1108
Percentage 96,4 92,8 52,7 52,9 59,6
Source: ECtHR, authors' calculations.
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Table 2 below shows that in particular Russia, Turkey, Ukraine and Moldova face numerous judgements regarding violation of human rights. However, unlike in the EU 28 countries, the civil society and resources for human rights promotion and protection mostly stem from international sources. The domestic resources for human rights protection in all four countries are utilized rather selectively (protection of children rights) and in some cases rights of selected social groups are questioned and undermined by discriminatory legislation.
Table 2. The number of judgements at the European Court of Human Rights — non-EU countries
1995 2000 2005 2010 2012
Albania 0 0 1 7 7
Andorra 0 0 0 0 2
Armenia 0 0 0 5 16
Azerbaijan 0 0 0 16 17
Georgia 0 0 3 4 12
Iceland 0 2 0 1 2
Lichtenstein 0 0 1 1 0
Moldova 0 0 14 28 27
Monaco 0 0 0 0 0
Montenegro 0 0 0 2 6
Norway 0 1 0 1 3
Russia 0 0 83 217 134
San Marino 0 2 1 0 1
Serbia 0 0 0 9 12
Switzerland 0 5 5 11 8
FRY Republic of Macedonia 0 0 4 15 7
Turkey 3 39 290 278 123
Ukraine 0 0 120 109 71
Total non-EU 3 49 522 704 448
Total ECtHR 84 683 1103 1495 1108
Percentage 3,6 7,2 47,3 47,1 40,4
Source: ECtHR, authors' calculations.
The results of quantitative analysis presented here thus yield limited findings — the EU, sees itself as a long term promoter of human rights [22], on the whole however, the direct role of the EU in minority rights protection and human rights is limited, as these are not part of the acquis communautaire, and the protection of national minorities has not yet become a binding rule of the EU. Yet, with the Lisbon Treaty the protection of minorities became an explicit founding principle of the EU. In particular in the areas of external relations, neighbourhood policy and enlargement is protection of national minorities one of the main criteria for cooperation with the EU and for potential accession.
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Within Eastern Enlargement the success of the EU in the field of human rights also varied: in her study of EU conditionality and minority rights, Sasse [23, p. 18] showed that the biggest issue in translating the Copenhagen criterion into policy was the vagueness with which the EU norm of minority rights was defined, as well as the limited formal leverage. This led domestic elites in accession countries to a strategic game of limited compliance in order to limit the costs. The degree of compliance with the EU norm was directly related to the degree with which the political elites were able to mobilize ethnic majorities in the name of national interests.
Russian speaking minorities in the Baltics
In the EU accession process and thereafter, this was the case in Hungary, Slovakia and Latvia. The case of Latvia is especially interesting as the Latvian Russian-speaking ethnic minority represents almost 30% of the population and simultaneously most members of this minority do not hold citizen status [24, p. 86-88]. This represents a significant disadvantage for minority rights promotion as political mobilization as a tool can only have limited results. Furthermore, the majority identities in Latvia as well as the identity of Russian minorities are both in flux — over the course of two decades these shifted significantly and became more polarized [25, 26].
Over time the discrepancy in interpretation and evaluation of the USSR past between the majority Latvian population and the Russian speaking minority grew and resulted in the inability of the large portion of Russian speakers to form substantial bonds with their country of residence. The disillusion with their own fragile situation and social standing led to a considerable decrease of sense of belonging to Latvia among the Russian-speaking majority and to a significant increase in identification with Russia as external homeland [25, p. 418-422].
Furthermore, the situation of Russian speakers in Latvia (and similarly so in the other two Baltic countries) is considered perilous by international human rights organisations. In 2011 the Field Report of the Refugees International identified that the Latvian political elites and majority society consider the issues of statelessness in Latvia as resolved by giving the Russian speakers the (second rate) official status of non-citizens lacking political power — banned from voting in both parliamentary and municipal elections [27]. The only option for the 360 000 non-citizens is to undergo the process of naturalization. At the core of this process is the knowledge of the Latvian language. The process itself was regarded as extremely difficult, but according to the Latvian state it meets the EU standard. Between 1995 and 2011 more than 130 000 members of the Russian-speaking minority naturalized. International organizations such as UN and OSCE have social integration of minorities in the Baltic countries on their agendas. Still more than 340 000 Latvian Russian speakers remain caught in the legal trap of statelessness.
Given the historical ties and geographical proximity of Russia, the issue of the Russian minority in the Baltic countries is highly contentious and possibly explosive both within domestic and international politics [28]. So much so, that in the late summer of 2014 US President Barack Obama felt the need to visit both Estonia and Latvia and guarantee that in case of attack the Baltic countries will receive support from fellow NATO members. The fear in the Baltic countries is that minority issues will be instrumentalized by Russia to provide justification for intervention (on humanitarian grounds). This fear is closely tied
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to the view of the Russian speakers as internal enemies and allies of Russia. This is further strengthened by the dominant discourse of romantic nationalism emphasizing the values of nationhood and internal consolidation, as well as securitization of contemporary Russian foreign policy [28, p. 425-426].
In his 2012 speech Vladimir Putin strongly criticized the issues of statelessness in both Latvia and Estonia and hinted towards strong Russian resolve at changing the status quo by saying: 'We are determined to ensure that Latvian and Estonian authorities follow the numerous recommendations of reputable international organizations on observing generally accepted rights of ethnic minorities' [29]. Furthermore, Putin framed the issue a failure of Western dominated human rights agenda, which he framed as highly politicized, biased, and instrumentalized: 'Russia has been the target of biased and aggressive criticism that, at times, exceeds all limits. When we are given constructive criticism, we welcome it and are ready to learn from it. But when we are subjected, again and again, to blanket criticisms in a persistent effort to influence our citizens, their attitudes, and our domestic affairs, it becomes clear that these attacks are not rooted in moral and democratic values' [29].
This calls for more research focusing on the interaction between the EU and Russia, and their mutual perceptions vis-à-vis human rights and minority protection issues. Both the EU and Russia are committed to minority rights protection and bound by international law in the framework of the United Nations, the Council of Europe (ECHR) and the Organization for Security and Co-operation in Europe. However as the statements of Vladimir Putin above demonstrate there is a strong mismatch in the framing of human rights and minority protection between Russia and the EU. In order to address this issue, in the next part we develop an analytical framework for the study of human rights and minority protection discourses.
Conceptualizing and operationalizing political discourse of human rights and minority protection
We understand discourse as a "cognitive world constructed by actors", and as a "discursive process" [30]. Furthermore, discourses are not only constructed by actors in a discursive process, but discourse also defines the discursive context of an actor [31, p. 603], and as such represents a constraint on actors' agency. Therefore, discourses are created and shaped by actors, but also structure and define actors [see also 32].
In this sense, discourse analysis of key EU, Latvian and Russian documents regarding human rights issues related to the Russian-speaking minority in Latvia will reveal the explicit and implicit ontological entities of the human rights discourse in Europe today. Crucial for this analysis is not only the defining and enabling power of a discourse, but also its power to exclude and dominate actors, categories, and justifications by withholding recognition and endorsement of them [33, p. 229]. The analysis will attempt to identify the political categories forming the basis of the European human rights order.
Following Dryzek and Berejikian [34], discourse is seen as "representing a coherent point of view", and analysing political discourses thus requires de-construction of analysed texts into components of the discourse and its re-construction into a coherent image utilising the following elements of discourse: ontology, agency, motives, and relations. Based on Dryzek and Berejikan [34], in table 3 we propose deconstructing the four vital elements of
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public discourse of human rights and minority protection. First, ontology will deconstruct the basic categories of self- and the other, and its discursive and historical fundament. Second, the issue of agency will ascertain the degree to which members of the minority in question are recognized as autonomous subjects, or as objects that are acted upon. Third, the motives for the position of all three actors are to be identified and categorised (along the lines of material self-interests, identities and civic virtues). Fourth, relationships among actors ought to be scrutinized to identify the forms of their interaction.
Table 3. Construction of minority protection and human rights
Category Explanation [34, 35, 21] Latvia Russia EU
1. Ontology — construction of entities that are recognized as existing — identity constitutive discourses, discursive strategies; — representations of social actors in discourse; — personifications How does Latvia discursively constitute itself and others vis-à-vis protection of minorities and human rights? How does Russia discursively constitute itself and others vis-à-vis protection of minorities and human rights? How does EU discursively constitute itself and others vis-à-vis protection of minorities and human rights?
2. Agency the degrees of agency assigned to these entities How autonomous does Latvia see itself vis-à-vis minorities? How autonomous does Russia see itself vis-à-vis minorities? EU's degree of autonomy
3. Motives material self-interests identities; civic virtues Why is the issue of minority protection and human rights salient? Why is the issue of minority protection and human rights salient? Why is the issue of minority protection and human rights salient?
4. Relationships relations between self and other; implicit and explicit forms of interaction What types of interaction are envisaged and with whom? What types of interaction are envisaged and with whom? What types of interaction are envisaged and with whom?
Source: Adapted from Liebert 2006, Dryzek/Berejikian 1993, Guasti 2014.
Preliminary conclusions
This study opens up a new chapter in the literature on the study of human rights and minority protection. Our preliminary analysis shows that in terms of ontology and agency the Russian-speaking minority in Latvia is lost in translation — caught between the Latvian notion of non-citizen as a legally justified statelessness and the Russian notion of compatriots, i.e. victims of aggressive Western expansion (a ticking bomb ready to be instrumentalized by Moscow). The key identity constitutive discourse is the interpretation of a joint past — exclusion from the shared national suffering by Latvia during the Soviet era and incorporation in the glorified Soviet past by Russia.
In terms of agency however, neither the Latvian nor the Russian official discourse recognized the Russian-speaking minority as an autonomous entity. Rather for both the minority issue is instrumentalized for domestic and foreign policy reasons: as mobilization
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of ethnic majority for the national interest by part of the Latvian political elite and as an indicator of failure of the Western human rights agenda by Russia.
The motives of both Latvian and Russian political elites are similar — identity is instrumentalized and securitized. The EU whose hands are tied vis-à-vis human rights and minority issues in the member states is largely absent. While Latvian elites claim compliance with EU law and are willing to adapt (simplifying naturalization procedures), Russia does not recognize the EU as a relevant actor. The relationship between the actors is polarized and antagonistic, and as the case of Ukraine shows, with further potential for violence.
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Статья поступила в редакцию 21 октября 2014 г.
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