Jusletter IT

According to mainstream socio-economic theories, HR treaties are empty promises,¹ as they finally apply to the citizen-government relationship,² where other states do not want to interfere,³ where the threat of retaliation by compliant states against deviants becomes meaningless, and where there are neither strong multinational enforcing mechanisms nor market forces that ensure compliance. This conclusion was also supported by statistical analysis of HR treaties, in particular time series analysis comparing HR fulfilment prior to and after treaty ratifications.⁴ Rich democratic countries without internal conflicts rather appear to comply, strong civil society organizations enhance respect for HR treaties,⁵ and also countries accepting enforcement mechanisms (optional protocols) in general have a better HR record.⁶ However, in autocratic societies the ratification of treaties may have negative impact on HR and, for instance, rewarding developing countries with more aid for accession to HR treaties has shown to be counterproductive.⁷ This suggestion that HR treaties may be futile stirred an academic debate that is still ongoing. Opponents proposed the thesis that on the contrary a process of acculturation may ensure growing respect of HR,⁸ considering that the legitimacy of governments increasingly hinges on their democratic conduct.⁹

This paper revisits this issue and develops the hypothesis that societal preferences of each country are root causes that determine both its pattern of treaty ratifications and its level of HR protection. For, on the one hand, states declare societal preferences by the accession to treaties.¹⁰ On the other, societal preferences may reinforce domestic authorities to act in a way that makes HR violations more or less likely. After all, HR violations are driven by societal problems, often related to specific vulnerable populations. However, such patterns may be difficult to discern, unless the considered countries are culturally similar. The paper therefore focuses on the 47 member states of CoE. These countries are basically democratic and normatively respect ECHR and judgments of ECtHR, even if they pertain to other states.¹¹ In order to identify societal preferences, the paper studies accession to twelve CoE conventions. In a complementary paper,¹² authors classified CoE countries by means of their ratification patterns into five classes A to E; this classification has shown prognostic value for explaining the HR situation of a certain vulnerable population, women in SW. This paper explains, how to arrive at the classes A to E and outlines the underlying societal preferences.

This paper is based on the empirical information of a complementary paper (FN 12), where authors studied the HR situation of persons in SW. Thereby, for this paper SW means sexual behaviour of consenting adults involving physical contacts in exchange for monetary gains. Women in SW are vulnerable to HR violations,¹³ whereby the reasons are similar across countries:¹⁴ There are issues of stigma and social injustice.¹⁵ For the assessment the authors defined an index SWDEF, at which SWDEF of a country is 1, if there are verified reports, published between 2007 and 2012, about deficiencies affecting SWs, and it is 0 otherwise (see Table 2). Some feminists consider SW per se as HR violation of the «prostituted women».¹⁶ This hypothesis is not accepted, as it would blur differences and as the focus of SWDEF is on serious violations, such as police brutality, and on discriminations against SWs by the law and by legal practices. For instance, coercive measures against SWs, such as compulsory or forced HIV tests, are counterproductive and discriminate against women.¹⁷ Where such measures are applied (e.g. Austria), SWDEF = 1. Authors linked SWDEF to population size,¹⁸ to the legal approaches towards SW (prohibitionist, abolitionist, neo-abolitionist, or regulationist),¹⁹ to their implementation (liberal or conservative),²⁰ and in the complementary paper also to reported levels of HR fulfilment according to the Cingranelli & Richards HR database,²¹ and to proven HR violations in terms of violation propensity (VP),²² an annual average of ECtHR judgments finding violations per million citizens.

Twelve CoE treaties were selected and split into two groups: Between two treaties of different groups there are no significant positive or negative correlations,²³ but there are significant positive correlations within each group. Thus, the groups seem to represent two dimensions of societal preferences, whereby the ratification counts in each group measure the strength of these preferences. As noted in the complementary paper (FN 12, see also section 4.2 below), for 92% of countries these counts allow reconstructing at least 75% of their ratifications. Thereby geometrically, the ratification behaviour of each country defines a point in 12-dimensional space (see FN 23) and the two groups define a two-dimensional subspace of maximal variability for this data set. The previously assessed HR deficits, expressed by the index SWDEF, were combined with this analysis to identify five classes A to E of ratification patterns. The extent of similarity of the value SWDEF between states in each class allows – argumentum e contrario – to derive the predictability of HR deficits in a particular field (here SW) according to the state’s ratification behaviour.

The respective CoE treaties were chosen according to a set of criteria developed by the authors. Some criteria are motivated by the characteristics of the applied methods. Thus, no treaties were chosen which have been ratified by all or none of the states, since those would not allow distinguishing different patterns of ratification. Moreover the total number of treaties to be considered had to be limited in order to keep the parameters accessible for human understanding.

From a sociological perspective, HR are «socially constructed», as «they are created, further developed, institutionalized and effectuated by human actors in particular socio-historical settings and conditions»;²⁴ thus they allow to derive societal preferences. Regarding the substance, treaties were selected with respect to their reflection of a societal preference with relevance for the substantial HR deficits to be compared by this method, here particularly the topic of SW. This relevance could be direct (e.g. «Trafficking in Human Beings») or indirect (e.g. «Code of Social Security»), it could impact HR for SW rather in the core (e.g. «Data Protection») or in the periphery (e.g. «Firearms»). However, in the end the selection is based on pragmatic decisions with respect to the research purpose. Thus, it appears interesting for further research, if optimizing the selection regarding its substantial relevance would have a positive impact in the precision of the predictability for HR deficits – for instance by searching for «better» treaties in the periphery of relevance, or by exchanging the substantial «stage» of SW for a topic with a higher number of CoE treaties directly and in the core relevant for respective HR deficits. The explanation for the two different groups of treaties regarding their reflection of societal preferences is provided in the following sub-chapters.

The CoE Treaties selected for the first group deal with the protection of HR of the «first generation».²⁵ These are civil and political rights and have a (rather) high relevance for the topic of SW. The derived societal preferences of interest are linked with particular approaches of HR protection. The discussion of ECtHR judgments is cited from an ECtHR analysis.²⁶ Group 1 comprises the following conventions:

a. Convention on Action against Trafficking in Human Beings (CETS 197) has been considered by ECtHR in key judgments.

CETS 197 is directly related to SWDEF and reflects a societal preference for recognizing a state’s duty to actively protect HR positions and particularly violations of human dignity (explicitly Article 6 lit d and Article 16), even the threats caused by other private persons from abroad. Remarkably the treaty requires «preventive measures, including educational programmes for boys and girls during their schooling, which stress the unacceptable nature of discrimination based on sex, and its disastrous consequences, the importance of gender equality and the dignity and integrity of every human being.» The convention emphasizes the «HR-based approach» as well as the gender mainstreaming-principle (Article 5 § 3). Furthermore, the – here relevant – group of (mainly female) SW is recognized as particularly vulnerable, expressed by the Preambles» reference to Recommendation 1325 (1997) of the Parliamentary Assembly of the Council of Europe on Traffic in Women and Forced Prostitution in Council of Europe Member States and to Recommendation 1610 (2003) on Migration Connected with Trafficking in Women and Prostitution. Altogether the instrument shows a very modern approach of HR protection beyond the mere level of respecting them by state actors.

b. Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data (CETS 108) has been considered by ECtHR in landmark judgments on data protection.

This convention reflects a preference for enhanced privacy protection in respect of processing personal data by modern technical means. Thus, a ratification of this convention shows the willingness of a state to take active (legislative) measures not just for the vertical relation between state and citizens but also for the horizontal relation of citizens among each other. This shows an approach beyond the core of privacy protection as granted e.g. by Article 8 of ECHR recognizing the «informational self-determination» as a crucial issue in a democratic society.²⁷ Furthermore, with respect to the field of SW, CETS 108 recognizes the particular sensitivity of data (information) regarding a person’s sexual life by requiring a special level of protection for such data (see Article 6). Last but not least the convention sets out a special cooperative approach among the signing states particularly as they have to provide assistance to their citizens abroad in case of violations of the conventions rights.

c. Additional Protocol to the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data, Regarding Supervisory Authorities and Transborder Data Flows (CETS 181) had no independent importance in the case law of ECtHR.

Basically the assessment to CETS 108 also applies to CETS 181. However, this protocol contains a crucial added value with the obligation to «provide for one or more authorities to be responsible for ensuring compliance with the measures in its domestic law giving effect to the principles stated in Chapters II and III of the Convention and in this Protocol» (Article 1 § 1). The supervisory authority shall be established with all powers for «giving effect to the principles mentioned in paragraph 1 of Article 1 of this Protocol» (Article 1 § 2), it shall be independent (§ 3) and remedies against the supervisory authority’s decisions shall be provided. Thus, the additional protocol shows a preference for not just only respecting the right to data protection but to fulfil it by providing an environment in which the rights can be actually realized.²⁸ Regarding the relevance for SWEDF; international information exchange is an important issue for trafficking of human beings, which frequently goes together with forced prostitution.

d. Convention on Cybercrime (CETS 185) reinforces data protection, as pointed out in a judgment by ECtHR²⁹. Thus, although just indirectly and not in the very core, the convention is of relevance for SW for which data protection is a highly important issue.

The convention reflects a preference for positive measures to combat threats of very modern kind by the means of youngest technological developments. Moreover, the Preamble stipulates the «need to ensure a proper balance between the interests of law enforcement and respect for fundamental HR» as enshrined in the ECHR, particularly mentioning the freedom of expression and information as well as the right to privacy. Remarkable is the requirement for states «to ensure that legal persons can be held liable for a criminal offence established in accordance with this Convention» (Article 12 –Corporate liability), which is a very modern approach reflecting a preference for accountability of legal persons under criminal law.

e. European Charter for Regional or Minority Languages (CETS 148) establishes protection of minorities as a legitimate aim, as pointed out by the former European Commission on HR.

Its ratification shows the willingness of a country to domestically recognize the importance of protecting vulnerable groups. It shows a societal preference that has also (indirect) relevance for the topic of SW, as multiple vulnerabilities may boost each other.³⁰ In the end, this affects also SWs» enjoyment of HR of the first generation.

f. Framework Convention for the Protection of National Minorities (CETS 157) is frequently and in different contexts cited by the ECtHR, as it demonstrates consensus about the need to protect the security, identity and the lifestyle of minorities.

Like CETS 148 this convention recognizes the importance of protecting vulnerable groups. Moreover, it is considering «that a pluralist and genuinely democratic society should not only respect the ethnic, cultural, linguistic and religious identity of each person belonging to a national minority, but also create appropriate conditions enabling them to express, preserve and develop this identity», as stipulated in the preamble. Thus, it reflects a preference not only to respect,³¹ but to protect and to fulfil the HR provisions for national minorities.

The CoE treaties selected for group 2 regard either HR of the second generation or deal with topics beyond classical HR protection. Some of them are not even relevant for the topic of SW. They are nevertheless of interest, as they reflect societal preferences not covered in the first group. Thus, group 2 comprises the following six conventions:

a. European Social Charter (CETS 035) is amongst CoE conventions that ECtHR cited most often, as it provides evidence for consensus about fair working conditions, including e.g. the right to form trade unions.

The Charter as «counterpart» to the ECHR provides HR of the second generation and comprises topics such as housing, health, education, employment, legal and social protection, migration as well as non-discrimination.³² Its ratification reflects clearly a societal preference for achieving social justice by granting litigable rights. In a historical view this approach even appeared as a fundamental cleavage between eastern and western countries during the cold war. It is indirectly but highly relevant for the topic of SW since a strong link between denial of SWs» rights and social injustice has been recognized.³³

b. European Code of Social Security (CETS 048) has been considered by ECtHR in the context of the protection of social security benefits as property rights.

Regarding the relevance for SW and the reflected societal preferences it shall be referred to the European Social Charter with similar arguments, but with a narrower scope.

c. European Convention on the Obtaining Abroad of Information and Evidence in Administrative Matters (CETS 100) had no independent importance in the case law of ECtHR, as it concerns mainly inter-governmental cooperation.

The ratification of this convention may indicate the willingness of a country for transparent information sharing and international cooperation at all levels, similarly to CETS 181 above.

d. European Convention on the Control of the Acquisition and Possession of Firearms by Individuals (CETS 101) had no independent importance in the case law of ECtHR.

The relevance for the topic of SW is just indirect and on the very periphery. Non-ratification might indicate a preference against precautionary measures (here: crime prevention by arms restrictions), affecting also other administrative and legal approaches.

e. European Agreement on the Restriction of the Use of certain Detergents in Washing and Cleaning Products (CETS 064) had no independent importance in the case law of ECtHR.

The convention is not relevant for the topic of SW. However, it is selected due to the reflected societal preference: Ratification informs about the willingness to extend the scope of classical HR protection with a focus on cultural and social issues.

f. European Convention for the Protection of Pet Animals (CETS 125) had no independent importance in the case law of ECtHR.

Like the previous one, the ratification of this convention informs about the willingness to extend classical HR protection with a focus on environmental protection.

This section relates the above identified preferences to empirical data on SWDEF. Countries were classified in order to predict SEWDEF from their ratification behaviour.

In a complementary paper (FN 12) authors defined ad hoc five types A to E of ratification patterns. This paper explains these patterns.

• Eight countries (152 million citizens) are of type A; they did not ratify all three of the conventions 1b (CETS 108), 1c (CETS 181), 1d (CETS 185) and they did not ratify 2d (CETS 101), 2e (CETS 125), or 2f (CETS 064).
• Five countries (160 million citizens) are of type B; they ratified 2a (CETS 035), 2d (CETS 101), 2e (CETS 125) and at least one of 2c (CETS 100) or 2f (CETS 064).
• Fifteen countries (115 million citizens) are of type C; they ratified all three conventions 1b (CETS 108), 1c (CETS 181), 1d (CETS 185) plus 1f (CETS 157), but did not ratify 2b (CETS 048), 2c (CETS 100), 2d (CETS 101), or 2f (CETS 064).
• Four countries (33 million citizens) are of type D; they ratified 2b (CETS 048), but not 2a (CETS 035).
• All other 15 countries (360 million citizens) are of type E (other combinations).

Now each Group of CoE Treaties represents one dimension of societal preferences. If countries with the same number of treaty ratifications in each dimension are compared, then they display remarkable similarities with respect to SWDEF. Figure 1 displays the 25 observed positions of countries (in terms of the number of ratifications in each dimension). It thereby determines SWDEF by applicable laws, their implementation, and by the number of ratifications in the two dimensions (groups), as explained by the colour code (figure caption).

Figure 1. SWDEF in relation to the number of ratifications

Explanation: Graphic with MS Office.

Colours code positions; red: SWDEF = 1 for all countries at that position (15 positions, 27 countries); green: SWDEF = 0 for all countries at that position (5 positions, 8 countries), yellow: SWDEF = 1, if implementation of prostitution laws is conservative, and SWDEF = 0 for the other countries in that position (3 positions, 7 countries); grey: SWDEF = 0, if countries are liberal and not abolitionist, and SWDEF = 1 for the other countries in that position (2 positions, 5 countries).

Boldface lines separate activity levels: Countries are passive in a group or in the set of all twelve ratifications, if they are amongst the 50% countries with least ratifications (up to four ratifications in group 1, no or one ratification in group 2, or up to six ratifications overall). They are active, if they are in the upper third of countries in ratifications (six or more ratifications in group 1, four or more in group 2, or nine or more overall). Countries are intermediate, if the number of ratifications is in between.

A closer look at Figure 1 reveals a geometric pattern that separates regions with rather more green positions (SWDEF = 0: A = lower left, B = upper right, but not rightmost) from regions with more red positions (SWDEF = 1: remainder); the boldface lines delimit activity levels of ratifications (explained in Figure 1): These activity levels, applied to the regions identified in Figure 1, motivated the definition of types A and B.

• With the exception of Ireland, type A countries are passive in both groups. With the exception of Estonia (type D), this «reluctance» correctly identifies type A membership.
• Countries of type B are active in overall ratifications, but not active in group 1. With the exception of Sweden (type E), this correctly identifies type B countries.

In view of Figure 1 it follows that ratifications relate to legal approaches towards SW, their implementation, and respect for HR of SWs, and thus to societal preferences that determine these societal choices.

Figure 2 compares countries by their similarities in terms of ratifications: Countries are strongly linked, if their ratification status is equal for ten or more of the twelve considered treaties. With the exception of Georgia (type A), a country is of type C, if and only if it is strongly linked to ten or more countries. Type C illustrates a «dependence network»,³⁴ where common rules and practices of countries reinforce each other. There are four type-C countries with identical ratifications and three pairs of type-C countries with identical ratifications (overlapping nodes in Figure 2). Type C countries perform identical with respect to SWDEF, confirming again the relevance for ratifications in explaining societal choices.

Figure 2. Comparing countries by their similar positions towards treaties

Explanation: nodes = countries; links = ratification status equal for at least 10 conventions; overlapping nodes: equal ratification status for all 12 conventions; node size by degree (number of links to other nodes); colour code: blue = type A, green = type B, red = type C, yellow = type D; grey = type E; shape code: circle = SWDEF = 0, squares = SWDEF = 1 (graphic: -UCINET 6 software, using computations with XL-Stat software).

Finally, type D was introduced, as the defining ratification pattern appeared peculiar: Type-D countries ratified the Social Security Code, but not the Social Charta.

An alternative route to these classifications uses principal component analysis (PCA), a classical method of descriptive statistics.³⁵ It defines characterizations of classes A to E that improves the above characterizations (see the corresponding paper, FN 12), as there are fewer errors for A to C, as they relate the ratification classes to intrinsic parameters (components) of the ratification data and as the negatively defined class E (a «remainder») is defined positively. Further, the complementary paper (FN 12) confirms that the two distinguished groups of CoE indeed define two dimensions in the mathematical sense, as they (approximately) define the two principal components of the data cluster defined in 12-dimensional space by the ratification data of CoE countries. Other authors used PCA for indicator development (a principal component defines an indicator as a weighted average of data).³⁶ However, for details to this promising alternative see the complementary paper (Fn. 12).

SWs suffer from HR violations in 34 of 47 (72%) countries in Europe, representing 95% of the European population. The reasons for this societal failure are complex, as HR of SWs relate to a variety of other HR topics.³⁷ The above figures demonstrate that, at least in the case of SWs in Europe, the HR situation of this small population is correctly mapped by ratification patterns. In particular, contrary to conclusions from other empirical studies with a focus on single treaties³⁸, treaty ratifications matter, if one considers multiple treaties together, rather than single treaties in isolation. Thus, this approach is promising for applications in a wider context. It may be used for other regions with comparable HR instruments, e.g. Inter-American system, as well as for other social problems. Examples closely related to this SW topic are the situation of illegal immigrants,³⁹ poverty driven migration of SWs,⁴⁰ trafficking,⁴¹ public health & HIV,⁴² or discrimination against HIV-positive people.⁴³

Table 1. Correlation coefficients for treaty ratification

Explanation: Pearson correlation coefficients between ratifications of the treaties listed in Table 2. T-test was used to identify the 95% significant coefficients; they are in boldface.

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Norbert Brunner

Centre for Environmental Management and Decision Support (C-EMDS) and Mathematics, DIBB, University of Natural Resources and Life Sciences (BOKU)

Gregor Mendel Strasse 33, 1180 Wien, AT

norbert.brunner@boku.ac.at

 

Christof Tschohl

Wissenschaftlicher Leiter, Research Institute AG & Co KG – Zentrum für digitale Menschenrechte

Amundsenstraße 9, 1170 Wien, AT

christof.tschohl@researchinstitute.at; http://researchinstitute.at

 

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