Using empirical examples and comparative cases, the text explores three levels of policy-making: within sub-state and national politics, and within international agreements, laws and policy blueprints. This enables the authors to establish how domestic policymakers negotiate various structural factors in order to interpret rights norms and implement them long enough to gain EU accession. Showing that it is necessary to focus upon the states of post-communist Europe as autonomous actors, and not as mere recipients of directives and initiatives from ‘the West’, the book shows how underlying structural conditions allow domestic policy actors to talk the talk of rights protection without walking the walk of implementing minority rights legislation on their territories.
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About the Author
Timofey Agarin is Lecturer in Comparative Politics and Ethnic Conflict at Queen’s University Belfast.
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Minority Rights and Minority Protection in Europe
By Timofey Agarin, Karl Cordell
Rowman & Littlefield International Ltd.Copyright © 2016 Timofey Agarin and Karl Cordell
All rights reserved.
The Workings of the International Regime
The big bang enlargement of 2004 saw ten post-communist states joining the EU, completing the accession process just ten years after having applied for membership. In these countries, EU accession has also marked the end of formal conditionality processes, assuaging concerns about post-communist states' ability to fully respect the corpus of EU legislation transposed into domestic law and implementation capacity. In attempting to explain political and social change in candidate and later, member-states, much of the literature, however, treats a range of actors operating in domestic politics as if they form an homogenous whole, who possess a shared set of goals and domestically promote agendas set in the international arena, in the absence of individual input, achieved through either participation or consultation. While such analyses help us understand the dynamic of the policymaking process domestically, assess the response rate of domestic policymakers to international incentives and ascribe certain decisions to individual actors in domestic politics, they emphasise change over stability in political processes. Our main concern in this book is with issues that have remained little changed over the past twenty-five years of transition in the post-communist political space. This is why in this chapter we introduce the theoretical framework that will allow us to identify the underlying fundamentals of the contemporary minority rights regime in Europe and in later chapters illustrate how — despite the changes — many contentious issues pertaining to the policies of minority rights protections remain unresolved.
A wide array of process tracing and descriptions of policies/situations/ outcomes of the Europeanisation process posit causal relations between and empirical evidence in support of the view of 'games political actors play' without taking into account the background conditions that lead up to and determine actor choices that are of crucial interest for political analyses. This chapter introduces the core argument of our book, that attention to opportunity structures is largely absent from (much of the) research on the impact of Europeanisation processes on domestic change. This view precludes a systematic assessment of reasons for which attention has been granted to polities, politics, and policies, which have changed over time, but it has not assessed what has not changed. In our view, in order to explain the deficits of minority protection mechanisms in Europe, the origins of institutional stasis warrant greater attention.
This is important for several reasons. First, if our analyses were to offer a systematic assessment of interactions between actors at different levels of policymaking (international actors versus domestic actors), these would point directly to perceptions of opportunity structures as experienced by political actors, rather than as identified by researchers. Secondly, institutional contexts, in which political actors perceive choices of policies as realistic and desirable, would facilitate analytic distinction between anticipated outcomes that are declared and those that are realistically expected, allowing more specific predictions about the maximally effective behaviours.
As has been suggested in much of the literature to date, the changes in domestic policy dynamics were rational and in keeping with structural opportunities offered by domestic institutions. However, when domestic political institutions did not allow domestic political elites to toe the line on offer from the international community, the rationale for spurious change in policies was indeed legitimised only to reap the short-term benefits of EU accession. This distinction allows us to identify the sources of (lack of) change in domestic policies as sitting with the institution of the state. This helps us consider the expressed versus the covert compliance of domestic actors with institutional rules of the international cooperation game, as during the accession process.
1. THE INTERNATIONAL REGIME AS THE BACKGROUND FOR POLICY CHANGE
Across Europe, issues pertaining to minority protection are regulated by member-states and require nation-states to identify groups that may be eligible for minority protection on their sovereign territories. As such, this chapter argues that we ought to pay greater attention to the dynamics of policy changes in national institutions, as these are the drivers of policy innovation domestically and as such also are able to input international organizations' attention to specific issues, identities and interests. However, one must be extremely cautious as to the origins of domestic policy changes in nation-states and focus on institutions of that state as socialising and determining permissible and desired patterns of action that domestic actors choose to follow. Domestic political institutions are therefore primary points of reference for domestic political actors when they decide on policies best suited for their domestic situations, as well as those on which they should lobby international organizations. As a result, despite the fact that international organizations (such as the EU, OSCE or Council of Europe) outwardly project a set of internally agreed-upon norms, such norms reflect closely the values and perceptions that domestic political actors see as desirable and possible. With regard to issues related to minority populations across European member-states, these sets of norms constitute what has become known as the European minority rights regime.
The European minority rights regime provides a comprehensive agenda for identifying and recognising minority groups that find themselves in a situation requiring attention and perhaps in need of protection from the tutelage of the state where these groups reside. However, the European minority rights regime lacks autonomous capacity as it does not have the ability to engage with its constituent members (states) beyond the capacity to promote and leverage change with the reference to shared interests and rationale of its participating parties, and only as such legitimising its existence as a principle agent in resolving a collective action dilemma for participating countries. Thus, the European minority rights regime only has the capacity to act on the basis of the embedded reasoning and follow the rules agreed upon by its constituent parties. The regime exists as a complex actor established as a result of member-states' engagement in jointly solving collective action problems in pursuit of their collective interests.
Norms for and rules of minority protection as upheld and overseen by the European minority rights regime therefore rest on the rationale of cooperation between actors within member-states to establish an arbiter for regulating issues relevant to minorities. As a result of inter-state negotiation (and presumably agreement), the European minority rights regime plays a role of interest mediation between actors within and between its constituent states to avoid conflict and ensure peace and stability on their territories.
The focus of research on actors engaged with minority rights and their protection in new EU member-states prior to accession has led to considerable soul searching since EU accession: with the focus on domestic political actors responding to international pressures during the accession process, attention was steered away from domestic institutions facilitating the transposition and implementation of minority rights. As a result, many issues relating to the international regime/domestic actor interface are often seen as challenging the pre-existing structural conditions, allowing both sides to engage constructively with one another in order to implement change in practice. Our claim is that if scholars take a parsimonious approach to the issue of minority rights protection as practiced, one also needs to identify those preferences that shape institutional frameworks and opportunities of the agents promoting minority protection in its own right.
Conceptually, actor choices regarding the anticipated outcomes are embedded in an institutional framework within which principle actors operate, define and calculate long-term interests. It is therefore surprising that past research on interactions between the European minority rights regime and domestic actors emphasises actorness rather than institutional opportunity structures framing actor choices. Much of the research on this interface presumes that these actors are acting rationally while failing to determine the source of this rationality lacking the interest in institutions. Actor calculus follows prior experiences and is made in accordance with auxiliary interests that have been formed within the dominant institutional context or within the context into which the actor has been socialised previously. In a competitive game of interest entrenchment, our actors input into domestic political institutions in order to shape institutional design and increase returns for themselves.
With regard to agents active at supra-state (regime) and sub-state (political elites, minority actors) levels, we may note that agents' engagement and exchanges are different within respective contexts of interaction. At regime level, actors cooperate in order to ensure peace and stability across the set of member-state territories, while at the domestic level individual actors negotiate terms of access to resources in order to likewise maintain stability. At both levels of actor interactions, the origins of interests' formation and their dynamics take place within the extant framework of political institutional structure. Therefore, at both levels political institutions of a state precede actor choices in policy preferences and thus exercise the steering impact on international regime and domestic actor dynamics.
Thus, the European minority rights regime as an individual actor facing resilient state institutions would be just as likely to push for reform that benefits the regime as a whole as would domestic political actors involved in institutional redesign in order to enhance their interests. In both cases, those options on the menu of change that are likely to bring comparatively less advantage to principle agents at both levels of interaction are unlikely to be their preferred choices. In short, mapping agents' interaction requires analyses of institutional frameworks, which either are responsive to exogenous pressures for change from the regime down the scale or mitigate the impact of endogenous actors' pressures further up the scale.
Whereas pre-accession scholarship focussed on what is clearly an international structure of incentives for domestic policy change, post-accession scholarship has widely engaged country-specific analyses of the environment within which social and political actors find themselves, and how these actors interact with segmental institutions and translate institutional pressures into policies. This also explains why since the EU enlargement of 2007, there has been a perceptible decline in scholarship comprehensively analysing minority issues in post-communist states. Much greater focus has been placed on institutional adherence to and implementation of previously passed legislation, deepening policy integration and options for policy backsliding. Conceptually comparative analyses of state compliance prevail in analyses of dynamics in actor responses to policy suggestions by international monitors. Where generalisations were once common in pre-accession analyses of regional trends, we now see cases of comparative studies in the coordination of policy, legislative adjustments and, broader, institutional redesign. So the focus of analysis is placed squarely on the process of interactions and mutual updates between actors at two levels: international regimes as actors influencing domestic policy/law-making actors' choices, or the reversed impact of domestic political actors on dynamics of international regimes. In both cases, however, interactions between the two are mediated through the prism of domestic political institutions.
Domestic political institutions, therefore, cut both ways: first, in terms of the balanced impact domestic actors have on an overall regime dynamics in the long run, and, second, pressures exercised by the regime upon domestic political actors to comply as delayed investment into future gainsay. The relevant scholarship has dealt in some depth with how domestic actors impact on dynamics in state policies domestically and how this triggers other states to anticipate either cost or rewards accruing from membership. Much of the scholarship on accession conditionality, democracy promotion and impact of international organizations on domestic policies has investigated the top-down and bottom-up processes involving actors. However, how domestic political institutions, as lens-coordinating actors, prioritise each option has been insufficiently addressed. Interestingly, it seems that two assumptions underlie these broader strands in theory development here: First is that there can be no unexpected consequences of states' action post-accession because all options available to them would fall into either/or logic (compliance/backsliding), shutting down routes for policy development outside the framework of top-down cohesion. However, background expectations invested into rationalising policy choices to different audiences by principle agents of change are rarely appreciated for what they are: the negotiation of structural constraints by sentient agents.
Rewarding as these analyses are, it is our contention that such approaches mix up the levels of study considerably. While identifying actorness in processes, many such analyses forego identifying institutional context, which not only determines the dynamics and direction of possible changes but also socialises political actors (domestically and internationally) as to appropriate types of behaviour. Thus, and for good reason in the past, countries seeking EU accession were analysed en masse as their options were structurally (and similarly) constrained by an institutional framework from which the states as actors could pick options, and contemporary research focusses more often on differential political dynamics inside countries as a result of incurred institutional changes pre-accession.
Past research has conceptualised externally projected normative standards (such as, for example, minority protection norms) onto domestic political arenas by analysing the response of political actors domestically to conditionality pressures (i.e., as actors), but could hardly discern same-scale effects from regime level to old member-states. This is because the relationship between the international regime and states have been conceptualised as a structure-agent relationship, not as an interaction between two distinct agents capable of setting their own agendas and pursuing their individual and distinct goals. In the wake of EU enlargement, it is time to set these assumptions aside and view the international regime/domestic political actors' interface as following the shared underlying logic. Both the international regime and domestic actors operate in an environment following a normative assumption about the crucial role of institutions as structures reducing voluntaristic action by agents, and thus allowing actors to increase returns while embedded in the structure known to them.
2. AGENTS OF POLICY CHANGE
Though often perceived as operating independently of one another, following different (at times, conflicting) logics and submitting to exclusive reasons for maintaining existing interactions, the actors who populate the international and domestic policymaking communities continuously engage with one another. Actors who act seemingly independent of one another might appear to be undertaking independent decisions, but it is generally agreed that they find themselves locked into a field where they must play by the shared set of rules. Ultimately, decisions about political directions at the national level involve relational ties between competing groups of political actors for voters' attention, where competitors follow the same set of rules even if they disagree with one another about policy issues.
Similarly, decision making in an international arena is not so much a deliberate action of states' representatives involved in an international community's stabilisation. Rather, parties to international political decision making follow tested mechanisms designed to ensure domestic stability by means of reaching inter-state agreements and maintaining order the absence of destabilising political processes happening outside the domestic arena. In their interaction, the EU and domestic decision makers, much less concerned with the stability of other actors (international organizations or states in interstate relations, staffing of political parties and the role of personas in domestic politics) as opposed to the stability of institutional arrangements opening the proverbial window of opportunity for an individual person or a state, continue with practice as usual and thus avoid adjustments to changes in structures determining limits and options.
Excerpted from Minority Rights and Minority Protection in Europe by Timofey Agarin, Karl Cordell. Copyright © 2016 Timofey Agarin and Karl Cordell. Excerpted by permission of Rowman & Littlefield International Ltd..
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