By Nikos Vogiatzis, University of Essex
longer a member state of the Council of
Europe. On 16 March, the Committee of Ministers (CM) of the Council of Europe decided,
“in the context of the procedure launched under Article 8 of the Statute of the
Council of Europe, that the Russian Federation ceases to be a member of the
Council of Europe”. The decision was effective immediately. This came just a
day after the Parliamentary Assembly of the Council of Europe (PACE) unanimously
that ‘the Committee of Ministers should request the Russian Federation to
immediately withdraw from the Council of Europe’ and, if Russia does not
comply, ‘that the Committee of
Ministers determines the immediate possible date from which the Russian
Federation would cease to be a member of the Council of Europe’. At the same
time, shortly before PACE voted on this matter, the Russian Federation had
submitted a formal notification to the Secretary General indicating that it
would withdraw from the Council of Europe under Article 7 of the Statute, and
that it would denounce the European Convention on Human Rights. This post will
revisit some of the key decisions of the last three weeks, demonstrating how
these decisions could shed light on legal ambiguities surrounding withdrawal,
suspension and expulsion from the Council of Europe.
its invasion of Ukraine, an obvious and fundamental violation of international
law, the Council of Europe has clearly taken a firm stance against Russia. It
was understood that, after more than two decades of a turbulent
relationship, the war in Ukraine could
not warrant anything less than an immediate and clear reaction. Thus, the Secretary
General, the Committee
of Ministers, the President
of the Venice Commission – among others –
have all condemned on multiple occasions and in the strongest terms the
invasion. For the first
time, Article 8 of the Council of Europe
Statute was relied upon on 25 February to suspend Russia’s rights of
representation in the Council of Europe. The European Court of Human Rights
also granted urgent interim
asking Russia to refrain from military attacks against civilians and civilian
objects and abstain from blocking and terminating the activities of Novaya
Gazeta. On 15 March and 16 March the PACE
and CM adopted the aforementioned historic opinion and decision, respectively.
surrounding the withdrawal, suspension and expulsion from the Council of Europe
had not been the subject of extensive scholarly analysis, until the insightful
study by Dzehtsiarou
and Coffey of 2019. They key
provisions are indeed Articles 7 and 8 of the Council of Europe’s Statute –
but, as Milanovic
observed, the wording of these provisions is not ideal. These provisions should
be read alongside Article 3 of the Statute, which states the values of the
Council of Europe. Thus, the clear political determination of the Council of
Europe’s organs to request Russia to withdraw took place in the context of a
number of legal ambiguities surrounding the relationship between Articles 8 and
7, in particular. After all, this is the first time that Article 8 is enforced
against a member state. In that sense, the expulsion decision against Russia
has shed light on the applicable legal framework in a number of ways, as will
be shown below.
decisions since 24 February
exposition of key decisions of the CM and PACE is selective and focused on the
scope of the post; all decisions or further information is available here:
February: The CM decides to hold an extraordinary meeting on 25 February to
examine measures to be taken under Article 8.
February: The CM decides, under Article 8, to suspend Russia’s rights of
representation in the Council of Europe. The Resolution
CM/Res(2022)1 on 2 March clarifies
that the suspension concerns the CM, PACE, the Congress of Local and Regional Authorities
and committees set up under Articles 15.a, 16 and 17 of the Statute.
March: Russia announces (albeit not formally triggering Article 7) its
intention of not participating in the Council of Europe.
March: On the same day, the CM decides to consult PACE with a view to deciding
further measures against Russia under Article 8. PACE had already decided, on
25 February, to hold an extraordinary meeting on 14 and 15 March to discuss the
consequences of the Russian Federation’s aggression against Ukraine.
March: PACE begins the extraordinary meeting; the members show clear support
for the further use of Article 8. A draft report on the ‘Consequences of the
Russian Federation’s aggression against Ukraine’ is circulated among members.
March: Shortly before the vote, the Russian Federation submits its letter under
Article 7 and also notifies the Secretary General of its intention to denounce
the European Convention on Human Rights (ECHR) under Article 58 ECHR. The
President of the Assembly (rightly, as will be shown below) informs the members
that the Article 7 letter will in no way impact the discussions and the vote on
the further use of Article 8.
March: PACE votes unanimously in favour of the CM requesting Russia to withdraw
from the Council of Europe ‘immediately’.
March: After the vote, the Secretary General, the Chair of the CM and PACE’s
President make a joint
statement on the ‘exclusion’ of Russia,
indicating that it can no longer be a member of the organisation.
March: The CM decides to end Russia’s membership with immediate effect, namely
from 16 March 2022.
two-step process against Russia and the role of the Assembly
first point to be noted is that, on this occasion, Article 8 was used as a
two-step process. The first step was the suspension decision on 25 February. The
second step was that of ‘expulsion’. Thus, the further use of Article 8
referred to in the decision of 10 March concerned the second step, which is that
of ‘expulsion’. Nevertheless, Article 8 is not ideally worded as it refers to
Article 7. This matter is returned to below. The question as to why the
Parliamentary Assembly was not consulted more extensively (see below) prior to
the suspension decision of 25 February could be answered with reference to Statutory Resolution (51) 30, Admission of new
members (annexed to the Statute), which also refers to withdrawal:
Committee of Ministers, before inviting a State to become a Member or Associate
Member of the Council of Europe, in accordance with Articles 4 and 5 of the
Statute, or inviting a Member of the Council of Europe to withdraw, in
accordance with Article 8, shall first consult the Consultative (Parliamentary)
Assembly in accordance with existing practice.
above provision indicates that the Parliamentary Assembly should be consulted
prior to the request to withdraw under Article 8 – but not necessarily in the
case of suspension. It was possibly felt that it was of the utmost importance
to activate immediately Article 8 and proceed with the suspension decision that
it entailed on 25 February. However, the Decision of 25 February was adopted ‘[f]ollowing
an exchange of views with the Parliamentary Assembly in the Joint Committee’,
so clearly the Parliamentary Assembly was involved.
it is worth noting that Article 8 of the Statute is not the only provision
which could have been drafted in a clearer way. Indeed, the above provision in Statutory
Resolution (51) 30 is not ideally worded, too. In particular, it refers to an
‘invitation to withdraw’, while Article 8 indicates that this is not an invitation
but rather a request.
expulsion and the full separation of Articles 7 and 8
the Assembly prepared and circulated the draft
report on the further use of Article 8, it
was not known, it appears, that Russia would submit the Article 7 letter
shortly afterwards. When that was announced, the Parliamentary Assembly rightly
continued with the consideration of the use of Article 8 despite the activation
of Article 7. As von
Gall argued, even if Article 7 would be
triggered by Russia, the organs of the Council of Europe would still need to proceed
with the request to leave under Article 8. As she explained, ambiguities
surrounding membership of the Council of Europe should not be used to undermine
the mandate of the organization. Nothing in the text of the Statute appears to
suggest that such a move is not legally permissible.
is now known that Article 7 was triggered by Russia on 15 March. The above
sequence of decisions indicates that the Council of Europe organs were
determined to force Russia to withdraw – in effect, to expel it from the organization.
The Article 7 letter was an attempt by Russia to avoid that. It is important to
recall that, under the text of Article 7, the withdrawal takes effect at the
end of the financial year. Simultaneously, one of the amendments that were
adopted in the report of the Assembly concerned precisely the addition of the word
‘immediately’ – which brings to the fore the question of the timing
of withdrawal and the possibility of immediate expulsion (which, as we know
now, is exactly what has happened). Leaving aside the timing of withdrawal, and
contrary to Article 8, Article 7 provides
for a ‘voluntary withdrawal’ (p. 65) - which
clearly is not the case here as we are before the most serious violation of
Article 3 of the Statute.
the draft, and then the adopted Opinion, confirm, the Assembly was of the view
that no discretion should be left to the Committee, and it thought so even
before the submission of the Article 7 letter. This is legally significant
because Article 8 provides that if the state does not comply, the Committee
‘may decide’ that the state is not a member after a specific date. Of course,
the Opinion of the Assembly is not binding as the Committee makes the decision
– but, as already noted, it proved very influential.
this context, the activation of Article 7 by the Russian Federation on 15 March
(and the withdrawal at the end of the financial year that it implied) inevitably
brought to the fore the interplay between Articles 8 and 7 of the Statute.
Article 8 provides that the Committee of Ministers can request a state ‘to
withdraw under Article 7’. Simultaneously, it has already been mentioned that
Article 7 provides for a voluntary withdrawal and also that the use of Article
8 is autonomous from Article 7: a state cannot use Article 7 at will to evade
the consequences of the use of Article 8 by the Council of Europe.
decision to expel immediately was made by the Committee, taking into account
the Opinion of the Assembly. After this sequence of decisions, Article 8 could
have been interpreted by the CM in at least two ways. First, as implying a connection
with Article 7 in the following way: that the request to withdraw if the
state complies would take place under the terms of Article 7, namely by the
end of the financial year. Differently put, that an ‘expulsion’ on a specific
date (including with immediate effect) could only take place once it was
established that the member state in question is unwilling to cooperate. This
situation could be viewed as a de facto expulsion, even if legally
Russia would remain a member state until the end of the financial year. By
analogy, the example that Klein
provides (p. 66) of the Greek military junta would be of relevance (Greece,
having declared its withdrawal under Article 7, was de facto suspended
from December 1969 until the end of the next financial year).
Article 8 could be (and indeed was) interpreted as enshrining a right to
terminate the state’s membership immediately, regardless of whether or not the
state cooperates. This position strengthens the connection between Articles 3
and 8, thereby providing for the possibility of immediate expulsion regardless
of the willingness of the state. As Dzehtsiarou
observed, ‘Russia was suspended as a result of aggression and gross violations
of the values and principles of the organisation’ and therefore ‘the
termination of membership should be imminent’.
considerations were certainly taken into account in the Opinion of the
Assembly. Arguably, the Committee went even further than the Opinion by ceasing
Russia’s membership with immediate effect (ie without a ‘request’). Thus,
Article 8 was fully dissociated from Article 7 and provided for the immediate
expulsion from the organization. In doing so, the Council of Europe organs and
the CM in particular emphasised that (i) this was clearly not a voluntary
withdrawal but an expulsion (ii) the terms and timeframe of expulsion would be
determined by the Council of Europe and not Russia.
clear separation of Article 8 from Article 7 could also have
implications for the difficult question of whether Russia is bound by the ECHR
for the next six months (see Article 58 ECHR). Plausible arguments have been
provided in both
directions, and clearly this matter
will be the subject of much discussion. Until
a decision is made, one would be inclined to think that precisely because
Article 8 was interpreted and applied in this way (i.e. immediate expulsion),
the starting point would be that the ECHR ceased to apply on 16 March as well.
Russia’s exit from the Council of Europe (and from the European Convention on Human Rights, on which more generally see here and here) was an inevitable and necessary decision which has of course consequences, especially because, as the Council of Europe leaders acknowledged, it deprives the Russian people of access to the European Court of Human Rights (for a broader discussion see the aforementioned article, p. 467 et seq). But ultimately, in every step of this process, and in light of the seriousness of the violations of Article 3, it was the Council of Europe suspending, requesting to leave, and eventually expelling Russia. In this context, the full separation of Articles 7 and 8 is legally and politically significant.
* The author would like to thank (with the usual disclaimer) Kanstantsin Dzehtsiarou and Kushtrim Istrefi for very helpful comments on earlier versions.