This essay examines the extent to which politics in the "new Europe" are actually characterised by human rights principles. Since the ideological and institutional basis has been laid in the "old Europe", I will briefly consider this period in a first chapter. The second chapter shall then explore the double challenge to politics brought about by the fall of the Berlin wall, and how this challenge has been met in the 1990s by political institutions. The EU can be seen as the main player in European politics today; I will therefore examine its external and internal human rights policies in two separate chapters (three and five). NATO's involvement in human rights affairs is intertwined with EU policies, but deserves a separate (the fourth) chapter. The problem of the universality of human rights in an Westerndominated and internationalised world will briefly be discussed in the concluding sixth chapter.

1. The rise of human rights in European politics after World War II

After the end of the Second World War, human rights issues became more central on the international political agenda. In 1945-6, the International Military Tribunal at Nuremberg tried German high officials for "crimes against peace", "war crimes", and "crimes against humanity", which was unprecedented in the history of law. ³ At the same time, the international community increasingly perceived the need to lay down certain principles that should be a guide-line for both states and individuals how to respect human dignity in law and practice, and on 10 December 1948 the UDHR was adopted by the United Nations (UN). Despite its non-binding character, the document had a deep impact on politics all over the world by drawing the attention to the idea of human rights as such.

In Europe, the UDHR fell on especially fertile ground. Earlier the same year, the so-called "Congress of Europe" with delegates from sixteen countries in its "Message to Europeans" had already called for "a Charter of Human Rights guaranteeing liberty of thought, assembly and expression as well as the right to form political opposition", and "a Court of Justice with adequate sanctions for the implementation of this Charter" (quoted in Fletcher 1980, p. 141). The latter "desire" of the delegates in The Hague clearly went beyond the scope of the UDHR. But as the Universal Declaration provided an internationally accepted basis, the idea of enforcement mechanisms could be put into effect, and already in 1949, the Council of Europe was established. Its own document, the European Convention on Human Rights (ECHR), directly relies on the UDHR, but being a legally binding document the keeping to its

³ Britannica 1997, p. 660.

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principles can be sued at the Commission of Ministers or the Strasbourg-based European Court of Human Rights (CHR) as the last instance by both the states that have signed the Convention and their citizens. Though its decisions have in some cases given rise to amendments of the existing legislation, ⁴ the Court cannot force changes in national laws upon states:

"[...] the extent to which, if at all, the Convention enters and is incorporated into the national

legal order is a matter determined exclusively by the constitutional provisions of the State in

question" (Fletcher 1980, p. 158).

And decision-making in the Commission itself is difficult, as the commissioners of different European states have to come to an unanimous decision. Furthermore, during the Cold War the Council of Europe had only limited impact as regards the whole of Europe: it remained a purely Western organisation. However, it laid down norms that not only superceded the national structure, but, if violated, could also be sued in an international court: the idea of universally applicable human rights was thus strengthened. 5

In fact, the European Convention probably has become more influential in a quite different institutional setting of growing importance. Seven years before the CHR could actually start its work, the European Court of Justice (ECJ) had been established to ensure that the law is observed in the treaty of the European Coal and Steel Community (ECSC). With the increasing integration of the Community on the one hand, and a lack of applicable laws on the other hand, the ECJ drew more and more often on the European Convention regarding it as a common European legal heritage. Thus, in addition to the economic and social rights of the ECSC treaty, human and civil rights were (unwillingly one could say) put on the Community's agenda. 6

The Conference on Security and Cooperation in Europe (CSCE) was the only political institution in Europe that brought together states of the Western and Eastern blocks. The Helsinki Final Act of 1975 can be regarded as a major break-through in the field of human rights:

⁴ Probably the latest example is Germany's change in the constitution to give women the right to be employed in

armed units of the Bundeswehr (Helm 2001).

⁵ On the Council of Europe, its history and influence in Cold War Europe compare Fletcher 1980.

⁶ On the European Court of Justice compare Fletcher 1980, p. 165-7.

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"The states were to respect human rights and fundamental freedoms 'including the freedom of

thought, conscience, religion or belief' and were to promote 'civil, political, economic, social,

cultural and other rights and freedoms' (Survival Nov/Dec 1975, p. 297). It was recognized

that the respect of human rights and fundamental freedoms was an essential factor to develop

friendly relations and cooperation among states" (Archer 1994, p. 71).

The third of the CSCE's "baskets" was especially designed to enhance cooperation in the field of human rights and humanitarian issues. Naturally, there was no enforcement mechanism; but very soon so-called Helsinki Committees organised nationally to put pressure on their respective states to obey to the standards set in the Final Act. 7

However, human rights considerations were far from influential in politics in Cold War Europe: violations of UDHR principles (e.g. Arts. 13.2, 18, 19) especially in the totalitarian regimes of Spain, Portugal and Greece and the communist countries could neither be sued by their own citizens, nor was there a possibility to put pressure on these states from the West as this could lead at best to further alienation. This situation should change completely with the fall of the Berlin wall.

2. The double challenge of the "new Europe" and political responses

Gorbachev's new political course eventually led to the end of the Cold War period that officially was declared in 1990 by the CSCE in its "Charter of Paris for a New Europe". European international politics from now on should be based on cooperation and mutual assistance. There was a lot of optimism for the new era as the post-communist leaders all seemed to be committed to democracy and officially acknowledged the importance of human rights principles. Post-communism was often regarded as just another transition to democracy, but on a wider scale than the one that already had successfully taken place in southern Europe. Furthermore, Western politicians were now in the position to put pressure on other states and influence the political sphere: standards were set up for the central and east-European countries (CEECs) that pushed to join NATO and EU, and since the threat of a Third World War had disappeared - along with the opposing state model and military power -, Western diplomacy could become more demanding, especially in the field of human rights, and could openly play the card of unchallenged military supremacy. In the West, the defence of human rights was actually increasingly perceived as a mere duty of those who had the means for it at hand.

⁷ On the CSCE compare Archer 1994, pp. 265-76.

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The political possibilities of the "new Europe" for human rights, however, were soon overshadowed by the fact that the human rights situation had far from improved. First of all, the newly established states often were (and still are) based on a radical notion of nationhood that threatens minority rights; ⁸ second, the possibility of a Third World War has been replaced by the reality of "low-scale" ("new") wars within and outside Europe that has culminated in cases of ethnic cleansing (Balkan wars, Rwanda); ⁹ third, these two factors have led to increased migration to and within Europe so that especially the West was confronted with the problem of how to secure the rights of an ever increasing number of refugees and asylum seekers (discussed in more detail below).

To deal with this double challenge of new possibilities and new needs in the field of human rights, the "new Europe" has not developed new political institutions, but has at best reformed the existing ones and widened the range of their activity. ¹⁰ The Council of Europe has established a special commission for the promotion of democracy through law and developed the Demosthenes programme to pass the existing knowledge on the organisation and functioning of democratic states to the post-communist countries. Furthermore, the Council has been the first Western institution to offer full membership to CEECs, ¹¹ and by 1992, Hungary, CSFR, Poland and Bulgaria had signed the ECHR, whereas others were granted observer status. Thus, politics in these CEECs have to be made with increased consideration of human rights principles in order not to be outruled later by Strasbourg. The Court's immediate impact, however, has certainly been diminished by the fact that there was a sixyear delay in rulings as early as 1993. 12

The CSCE (later Organisation for Security and Cooperation in Europe OSCE) has been reformed and has tried to play a more important role in a "new Europe" that - as far as the OSCE is concerned - includes all states of the former Soviet Union (FSU). The right of the individual is increasingly stressed, as by Ambassador Stefan-Bastl at the Implementation Meeting of Human Rights Issues in October 2000:

⁸ Compare Pogany 1999, who additionally points to a related problem: "The persistent tendency in Central and

Eastern Europe to seek to realise the aspirations of each nation through a separate state represents one of the

most potent threats to legitimate minority rights in the region" (p. 158f.).

⁹ The concept of "new wars" has been introduced and discussed by Kaldor 1999.

¹⁰ Compare Winn 2000: "[...] any idea of creating 'new' security organizations for Europe had given way to a

system based almost entirely on structures that had evolved during the Cold War" (p. 80).

¹¹ Ham 1994, p. 197.

¹² On the Council of Europe in the "new Europe" compare Archer 1994, pp. 57-72.

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"During the last years, unsolved minority questions and a virulent nationalism in a number of

OSCE countries led to the emergence of conflicts where civilians have increasingly become

victims. [...] The security of the individual will have to become a more visible part of the

OSCE's comprehensive concept of security" (quoted in ODIHR Meeting Report 2000, II.).

Human rights issues are dealt with by the Office of Democratic Institutions and Human Rights (ODIHR) and the High Commissioner of National Minorities (HCNM): the ODIHR monitors the members' implementation of democratic principles and the respect for human rights, whereas the HCNM is intended to provide early warnings so that clashes and civil war between different nationalities can be prevented. As a first measure, the OSCE can initiate missions into member states to examine the human rights situation there, but the 1992 Helsinki document names also peacekeeping missions as a possible task of CSCE/OSCE. Although such mesures under Basket III do not need the consent of the state concerned, they are still taken by a "consensus minus one" rule, ¹³ which obviously hampers the decisionmaking process and leaves only those topics on the agenda that enjoy wide support. One can therefore suppose that "non-decisions" - as we shall see later for EU's common foreign and security policy (CFSP) also - are likely to be the most influential form of agenda-setting.

In the "new Europe", the link between respect for human (and especially minority) rights and security and peace has become obvious: the case of Yugoslavia (1991-9) may suffice as example. The two European institutions discussed so far have therefore turned to an enhanced promotion of human rights principles particularly in the post-communist world, and the OSCE has set up mechanisms to make out emerging conflicts as early as possible. The rights of the individual in the "new Europe" are no longer the business of the individual state only: international organisations can interfere to a certain degree into the internal affairs of a member state to secure them.

However, no inclusive European security structure has been developed to prevent "new wars" or to end them by military means: an appropriate Russian proposal for a restructuring of OSCE has been turned down in 1994. ¹⁴ The reason for this lies probably with the outright dominance of the West: CEECs see the only long-lasting guarantee of their internal and external security in the membership of NATO and EU, ¹⁵ and the West itself is far from giving up structures that have so far proved effective in securing its peace and prosperity. Moreover,

¹³ On CSCE and OSCE in the "new Europe" compare Archer 1994, pp. 270-6.

¹⁴ Winn 2000, p. 89.

¹⁵ Hopkinson 1995, p. 38.

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