Monday 21 March 2022

Political Salvation of Europe’s Human Rights System? The Case for a Fourth Council of Europe Summit

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).
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.