By Andrew Forde
Russia ceased to
be a Member State of the Council of Europe with
immediate effect on 16 March 2022 in the context of the procedure launched
under Article 8 of the Statute of
the Council of Europe (CoE). The Committee of Ministers demonstrated
uncharacteristic decisiveness – temerity, even – when faced with Russia’s
flagrant rejection of the rules based international order. Much has already
been written about the situation and it’s immediate implications, for example here, here
and here.
We are still in the eye of the storm, and there are still many unknowns as to
how this story will unfold. For now at least, Russia remains a member or
observer of ten CoE Partial Agreements, including the European Commission for
Democracy through Law (also known as the Venice Commission), but we await the
full analysis of the legal and financial implications of Russia’s expulsion
from the CoE.
At critical
junctures in the CoE’s history, such as during
the Yugoslav wars and following
the major expansion and integration
of former Eastern bloc countries, the Heads of State or Government of all Member
States have convened to agree on high-level strategic priorities for the
organisation. In Warsaw in 2005, during the third and most recent Summit, the
leaders adopted a political declaration and an Action Plan laying down the
principal tasks of the Council of Europe for the years to follow. This was
recognised as being necessary in order to reinforce the Statutory and
Treaty-based standards to which all CoE Member States were bound.
In this piece I
will discuss why a Fourth Summit of the Heads of State or Government is now
both necessary and urgent in order to prevent contagion, and to salvage, revitalise
and reinforce Europe’s human rights protection architecture.
A Cruel Irony
It is something
of a cruel irony that having invested 10 years into the so-called Interlaken
Process to make the ECHR System more effective, in particular the Court, it
was the brutal disregard for the ECHR during the war in Ukraine that will have
the greatest immediate numerical impact on the Court’s backlog. Nearly a
quarter of the 70,000-odd cases pending before the Court are lodged against
Russia and now find themselves frozen, albeit temporarily.
To add insult to
injury, as recently as 2020 in
Athens, Russia joined 42 other Member States, to note its concern over
confrontations and unresolved conflicts that affect certain parts of the continent,
and committed to working together for reconciliation and political solutions in
conformity with the norms and principles of international law. With the benefit
of hindsight, one wonders if the Athens Declaration was signed in good faith by
all who subscribed to it. Therein lies a significant problem for the Council of
Europe: the seriousness and sincerity with which it is treated by the
Governments of Member States.
The Politics
of Human Rights
Effectiveness
has been a watchword in the Council of Europe for decades, with successive
Secretaries General leading various reform processes focussed on structural,
administrative or budgetary reforms. However, achieving effectiveness is not
only an administrative process, it is in fact principally a political one.
One of the
principal functions of international human rights law is to ensure standards
are never diminished by political whims. Yet, as an intergovernmental
organisation, the Council of Europe and Europe’s human rights protection system
are constructed on the basis of a complementary legal and political system
which shapes and services the core standards-setting, monitoring and
cooperation functions of the organisation.
All parts of the
CoE system are bound by differing degrees of politics and law. One enables and delimits
the other. The Committee of Ministers, for instance, comprises political
mandate holders (i.e. Ministers of Foreign Affairs) with Statutory duties, and
their Deputies (i.e. Ambassadors in Strasbourg) execute a delegated function in
accordance with well-established rules of procedure. Similarly, the process of
supervising the execution of judgments of the European Court of Human Rights is
politico-legal in nature in accordance with Article 46 of the ECHR to the
extent that the members of the relevant Committee (the “CMDH”) enjoy an
extensive margin of appreciation in terms of the strength of their response to
any case of non-execution of a Court judgment. It is neither science nor law
that dictates outcomes, it is the art of diplomacy set against an often complex
and sensitive political context with numerous dependencies. The election of
senior mandate holders is also done in accordance with the law, but has
not-insignificant political characteristics. Finally, the unique added value of
the Parliamentary Assembly (PACE) is its political nature, and the freedom of
speech that such a political platform provides.
Of course, there
are many critical aspects of the work which require maximal depoliticization,
status neutrality and objectivity such as all adjudication and monitoring
functions. But even these processes are not entirely immune to politics.
Ultimately, politics
is not necessarily a bad thing for an organisation such as the CoE. In fact,
it can be a strength. One might even say that it is the political
characteristics of the organisation that enable it to be relevant, responsive
and agile. But if such an inherently political organisation lacks a high-level
political vision relevant to the changing circumstances in Europe and which
reinforces its legal mandate, then processes can stagnate, disharmony can grow
and effectiveness can diminish.
Aligning
Political Ambitions with Statutory Obligations
A high-level
vision, in the form of a Declaration by Heads of State and Government, would provide
the organisation a renewed political mandate which would serve to inform
programmatic priorities and resource allocation. Any such Declaration must
offer clarity of purpose and must be adopted unanimously at the highest
political level by all – not just those “present and voting”. Such a vision
would also be necessarily time bound and so would require periodic renewal.
To-date, the CoE
has convened Heads of State and Government for Summits on three occasions in
1993, 1997 and 2005. The first of
these Summits took place in Vienna in 1993 which confirmed the Council’s policy
of openness to enlargement and also launched a significant process to reform the
European Convention on Human Rights with a view to making it more effective. The
Second Summit was held in Strasbourg in 1997 to give new impetus to human
rights protection. At that summit, the premiers decided to establish a CoE
Human Rights Commissioner, to complement the existing statutory architecture, which
would be formalised
in 1999. The third, and most recent Summit was held in Warsaw in May 2005. Leaders
of the then 46 Member States redefined the Organisation’s priorities by
adopting a declaration and an action plan aimed to strengthen the Council’s key
mission to safeguard and promote human rights, democracy and the rule of law.
It has been
almost 17 years since the last Summit. In that time, Europe has experienced
armed conflicts, migration crises, an attempted coup d’état, political
upheaval, numerous serious terrorist incidents, democratic regression and more
and more open challenges to the international rule of law and fundamental
principles enshrined in the European Convention on Human Rights. A Summit has not
taken place not because there has not been the need for one, it has not
happened precisely because there are so many complex and competing needs,
against a backdrop of a shrinking space for consensus.
A Fourth
Summit focussed Unity and Good Faith
If the war in
Ukraine has shown anything it is the unity of purpose of CoE Member States when
faced with a flagrant violation of the Statute. This unity is the essential
criterion required for the establishment of a new political vision for the
Council of Europe. The timing is therefore right to consider convening a new
Summit of Heads of State and Government as a matter of urgency.
Such a Summit
would, first and foremost, be an opportunity for Member States to express
absolute solidarity with Ukraine and all Europeans experiencing conflict,
repression and displacement.
It would be a
point of inflection which would need to be based on the unity of Member States
and the primordial nature of the Statute of the Council of Europe. It should
emphasise Member States commitment to engage with the organisation and one
another in good faith, and would provide a platform for Member States to
reiterate their support for the rights enshrined in the European Convention on
Human Rights and its enforcement system including the execution of judgments
process. It would be difficult to countenance any State refusing to participate
in a Summit concerned with such fundamental matters of principle, but any
reluctance would deserve scrutiny.
It would also be
a correct moment to underscore the importance of the financial stability, and
ultimately the sustainability, of the organisation. A Summit would
also provide an opportunity for the Council of Europe to articulate its unique
place and complementary purpose amongst other international organisations. The
ensuing Declaration should copperfasten its approach to the often misunderstood
concept of Democratic Security, clarifying definitively that whilst the
organisation does not have a security or defence mandate, it has a legitimate,
statutory mandate to maximise the protection of human rights throughout
Europe, including in contested territories or grey
zones.
To this end, Member
States could be invited to commit to a new presumption of access
principle first
mooted by the Parliamentary Assembly, when it comes to human rights
monitoring, whereby monitoring mechanisms can only be denied access to a
certain territory based on well-founded and transparent justifications. Together
with the Commissioner
for Human Rights, CoE Monitoring Mechanisms such as the Committee for the Prevention of Torture
(CPT) and others dealing with trafficking,
violence
against women, racism
and intolerance and social
rights, are the vanguard of the broader ECHR System and must not be hindered
in any way.
The inglorious
ejection of Russia from the CoE begs the question as to whether the ECHR itself
is sufficiently clear or if it requires updating to avoid, inter-alia, the situation
of a human rights grey zone turning into a human rights cliff-edge.
Finally, a
Summit Declaration should open up the potential for a new kinds of cooperation within
the Council of Europe which demonstrates openness to those European states not
yet members: this would effectively be recognising a potential candidate status.
Such a category would sit alongside the three current tiers of member,
non-member and neighbourhood state. Any state that is willing to commit to
European human rights and rule of law standards, and progressively pursue a path
towards membership, would assume this status. It would provide a basis on which
confidence could be built and cooperation programmes developed with those
jurisdictions (as well as civil society and parliaments) not currently members
of the organisation, such as potentially Belarus, the Russian Federation, the
Holy See, and others. The status of Kosovo, which has deeply embedded the ECHR
and other CoE standards such as the Istanbul Convention into its domestic legal
order, must be finally reconciled through a decision of the Member States at
the highest level.
More broadly,
the organisation should keep an open mind as to how it could deploy its assets
and expertise in a meaningful way in any region which finds itself beyond the
scope of the ECHR system, which might include supporting the establishment of
ad-hoc mechanisms such as judicial or quasi-judicial human rights institutions to
investigate and to consider alleged
or apparent violations of human rights as provided in the European Convention
for the Protection of Human Rights (as it previously did with Human Rights
Chamber for Bosnia and Herzegovina) or Human Rights Ombudsman institutions (as
it did in Kosovo).
Conclusion
The consistent
political messaging from the CM over the past ten years has been on ensuring
the effectiveness and shared responsibility of the Member States. Statutory and
treaty-based commitments are unconditional obligations which have been
voluntarily subscribed to by States. Any attempt by a Contracting Party to pick
and choose which standards they implement or rulings of the Court they execute seriously
undermines the unique human rights protection system established by the
European Convention on Human Rights. Yet, maintaining these standards in
practice is not achievable through international law alone, but requires the
enthusiastic political support of the Member States at the highest level.
The Council of
Europe is an organisation with unique expertise and experience that has served
as a catalyst for transformational change in Europe over the past 72 years. The
departure of the Russian Federation is a dark moment which must serve as a
point of inflection for the organisation, and in particular for the Member
States that determine the future course of the CoE.
The CoE is not a
fair-weather vessel, designed only for calm waters. It is the bastion of human
rights in Europe, whose raison d’etre is to deal with the critical human
rights challenges facing European society. If it cannot articulate a confident,
constructive identity for itself when it comes to such situations, it risks
failing on its central purpose. Now is the time to take stock of the profoundly
changed reality in Europe and, through a Fourth Council of Europe Summit,
articulate a new, realistic and ambitious vision for the future.
Dr Andrew Forde is a Visiting Fellow at the Irish Centre for Human Rights. He thanks Prof. Kanstantsin Dzehtsiarou for his comments on an early version of this blog post.
