Council of Europe (COE)
- Relationship between international and domestic law
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
A. Historical Background
1 The Council of Europe (COE) was the first European political organization founded with a view to achieving closer unity among its members (Regional Co-operation and Organization: European States). The idea of European unity had been propagated by philosophers and statesmen for several centuries. In the wake of World War I, various ideas about European integration had been put forward (History of International Law, World War I to World War II). In his book Pan-Europa published in 1923, Count Coudenhove-Kalergi called for a European federation and subsequently founded a movement for this purpose. In 1929, the French statesman Aristide Briand, in a ‘Memorandum on European Federal Union’, proposed to the League of Nations a ‘federal bond’ between the European peoples (Boyd 97).
2 However, only the catastrophe of the World War II, during which the peoples of Europe were victims of suffering and human rights violations on an unprecedented scale, prompted European politicians to act. As victorious powers, the United Kingdom (‘UK’) and France took the leadership. As early as 1930 and most prominently in a speech in Zurich in 1946 Winston Churchill used the term ‘United States of Europe’ (European Movement International 32). In a speech to the House of Commons on 22 January 1948, the British Foreign Secretary Ernest Bevin declared that British foreign policy now pursued the aim of creating a Western European ‘spiritual union’ based on respect for human rights (Padelford 114). This was also a reaction to the endeavour of the Union of Soviet Socialist Republics (‘USSR’) to force occupied Eastern and Central European countries into a military, economic and political alliance (alliances).
3 The movement in favour of European unity gathered momentum with the Congress of Europe at The Hague in May 1948 (‘Hague Congress’). The Congress was attended by some 660 delegates including 20 Prime Ministers and former Prime Ministers. It called for a United Europe permitting the free movement of persons, ideas, and goods, a Charter of Human Rights, a Court of Justice, and a European Assembly. These ideas were further developed in a political resolution proposing ‘einen wirtschaftlichen und politischen Bund’ (an economic and political union; translation by the editor) in which the nations of Europe ‘einen gewissen Teil ihrer Hoheitsrechte übertragen und untereinander verschmelzen’ (transfer and merge certain of their sovereign rights; translation by the editor) (Internationales Koordinationskomitee der Verbände für die Einigung Europas 7). The proposals were taken up by the foreign ministers of the five Brussels Treaty Powers, France, the UK, and the Benelux countries. Ireland, Italy, Denmark, Norway, and Sweden joined the negotiations, which resulted in the signature of the COE Statute in London on 5 May 1949.
4 The COE Statute foresees an organization firmly based on the principles of democracy, respect for human rights, and the rule of law. Its means, the conclusion of international treaties and the adoption of recommendations (Section C below), do not reflect even faintly the proposals of the Hague Congress for an economic and political union, and a merger of sovereign rights (Confederations of States). The most original feature was the establishment of a consultative assembly, consisting of members of the various national parliaments (Section D.2 below). The COE Statute thus introduced for the first time the principle of parliamentary participation in international affairs (Parliamentary Assemblies, International). This important innovation has since then been copied in various other international organizations and institutions, eg the European Communities, the Western European Union (WEU), the Nordic Council (Nordic Co-operation), and the Benelux Economic Union, and also, more informally, in the North Atlantic Treaty Organization (NATO), the European Free Trade Association (EFTA), and the Organization for Security and Co-operation in Europe (OSCE). The seat of the COE is in Strasbourg (Art. 11 COE Statute). It was fitting that the capital of a region which had long been a bone of contention between France and Germany should become the symbol of a new European unity.
5 In the early years of its existence, the COE and in particular the COE Assembly sought to give effect to the conclusions of the Hague Congress and a number of ambitious proposals of a federal or quasi-federal character were submitted for discussion. However, none of these proposals met with sufficient support from governments. It thus became rapidly clear that the COE was not the appropriate forum for building European unity in a federal or pre-federal sense. A smaller group of like-minded countries pursued this aim further within the framework of the European Communities. Having a wider membership and a potentially almost unlimited remit, the COE remained an important forum for practical pan-European co-operation in various fields, in particular human rights, legal co-operation, culture, education, public health, social cohesion, and youth.
6 With the accession of almost all countries of Central and Eastern Europe after 1989, the work of the COE gained fresh political impetus at the highest level through summit meetings of heads of State and government. At summits in 1993 (Vienna), 1997 (Strasbourg) and 2005 (Warsaw), Member States redefined the COE’s goals and priorities in a reunited Europe, focusing on its core values, namely human rights, democracy, and the rule of law. By ensuring respect for these shared values, the COE promotes democratic stability, security, and justice.
7 The membership of the COE today comprises practically all European countries, including those that had previously belonged to the bloc of so-called ‘socialist countries’ or had even been integral parts of the former USSR, eg Azerbaijan, Armenia, Georgia, Moldova, and the Russian Federation. The only European countries without membership remain Belarus, due to a lack of respect for human rights and democratic principles and Kosovo (Kosovo [Advisory Opinion]). Since 1970, the Holy See has been associated with many inter-governmental activities as an observer (International Organizations or Institutions, Observer Status). The United States of America (‘US’), Canada, Japan (all since 1996), and Mexico (1999) enjoy observer status on the basis of the Committee of Ministers’ Resolution (93) 26 of 14 May 1993.
8 Respect for democracy, the rule of law as well as human rights and fundamental freedoms are prerequisites for membership (Art. 3 COE Statute). Compliance with these principles is the subject of strict scrutiny by the Parliamentary Assembly, which must adopt a positive opinion on each new candidate country before a final decision on accession is taken by the Committee of Ministers.
9 Member States which seriously violate these principles may be suspended or expelled (Art. 8 COE Statute). This provision was about to be applied to Greece in December 1969, when the Greek foreign minister announced the decision of his government to withdraw from the COE. Greece subsequently rejoined the organization in 1974, after democracy had been restored.
C. Aim, Remit and Instruments
10 The aim of the COE is ‘to achieve a greater unity between its Members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress’ (Art. 1 (a) COE Statute). The COE Statute hardly limits the remit for COE action, which can be explained by the fact that it was the first political organization in post-war Europe (History of International Law, since World War II). Only matters relating to ‘national defence’ are expressly excluded from the competence of the COE (Art. 1 (d) COE Statute; the North Atlantic Treaty had been signed in 1949 just a month before the COE’s Statute).
11 The two main results of the COE’s inter-governmental work are ‘conventions and agreements’ as well as ‘recommendations to the governments of members’ (until 1979 called ‘resolutions’, Art. 15 COE Statute). The ‘conventions and agreements’ are multilateral international treaties which derive their legal force from the consent of those Member States that wish to be bound by them. Their elaboration and adoption by the COE does not create an obligation for Member States to sign or ratify them. However, through the practice of the Parliamentary Assembly and the Committee of Ministers, ratification of a number of core conventions, mainly in the fields of human rights and legal co-operation, has become a condition for membership. Since 1949, more than 200 international treaties have been adopted by the COE, more than in any other international organization. A majority of COE treaties provide for the accession of non-Member States, usually requiring an invitation by the Committee of Ministers. As part of the reform process of the Council of Europe, in 2012 the Secretary General submitted a report on the review of Council of Europe conventions. It contained a critical review of their relevance and provided the basis for follow-up decisions, including measures to increase the visibility and the number of parties to relevant instruments.
12 Recommendations constitute an important reference source for national legislators and administrative authorities. They are regarded as an expression of the collective will of the community of European States represented in the COE. Recommendations are often precursors of legally binding agreements, testing the ground and helping to shape the consensus that may eventually lead to directly enforceable European standards. The procedure for their adoption grants them a particular authority, because it requires a unanimous vote in the Committee of Ministers (Art. 20 (a) COE Statute). Prompted by the COE’s enlargement, the Committee of Ministers decided in November 1994 to make this voting procedure more flexible. Under a ‘gentlemen’s agreement’ the unanimity rule is no longer applied to recommendations once the two-thirds majority foreseen in Art. 20 (d) COE Statute has been attained.
13 The COE also adopts other instruments which are not explicitly mentioned in the COE Statute, such as declarations, action plans or guidelines. The latter are similar to recommendations in the sense that they formulate rules and principles which should be respected by Member States. If they are drawn directly from internationally binding instruments, they may constitute evidence of the existence of hard obligations (eg the Guidelines of the Committee of Ministers on Human Rights and the Fight against Terrorism (2002); Terrorism).
14 In addition to its normative activities, the COE monitors the implementation of its standards and carries out targeted co-operation activities with Member States, both on a bilateral and multilateral basis. It also regularly organizes campaigns and conferences to raise awareness about its work (eg the two campaigns ‘all different—all equal’ in 1995 and 2006–2007 or the ‘No Hate Speech Movement’ youth campaign (2013–2018).
15 In 2011, the Committee of Ministers approved the Organization’s programme and budget for the biennium 2012–2013, completing the move to a biennial programme and budget cycle in order to allow better planning and resource management. The annual resources of the Council of Europe total some €446 million. The Member States contribute in accordance with a fixed scale roughly in proportion to their population and gross national product (see Committee of Ministers’ Resolution (94) 31E on the Method of Calculating the Scales of Member States’ Contributions to the COE Budgets of 4 November 1994). The COE’s resources have not kept pace with its rapid growth in membership (International Organizations or Institutions, Financing of).
D. Structure and Decision-Making
16 Today, the COE’s Statute only roughly reflects the reality of the organization’s rather complex institutional structure and decision-making (International Organizations or Institutions, Decision-Making Process). In addition to the two organs mentioned in Art. 10 COE Statute, the Committee of Ministers, and the Consultative-now Parliamentary-Assembly, several new bodies have been created and voting procedures have been adapted to new realities without using the cumbersome and lengthy procedure of amending the COE Statute (Art. 41 COE Statute). Instead, the Committee of Ministers has used since 1951 resolutions of a statutory character, eg on the admission of new members, partial and enlarged agreements (Section D.7 below), observer status, majorities required for decisions of the Committee of Ministers or relating to the Congress of Local and Regional Authorities of Europe (Section D.4 below). Their provisions supplement the COE Statute without affecting its existing provisions. Because of their flexibility, statutory resolutions remain an attractive instrument.
1. Committee of Ministers
17 The Committee of Ministers is the decision-making organ ‘which acts on behalf of the Council of Europe’ (Art. 13 COE Statute; International Organizations or Institutions, Decision-Making Bodies). It considers what action shall be taken to achieve the aim of the COE (Art. 15 COE Statute). The Committee of Ministers decides what the COE does. It adopts not only recommendations, conventions, and agreements, but also the organization’s budget and its staff regulations. It deals with current political questions, formulates the priorities of the organization, and supervises the inter-governmental work of numerous expert committees and the execution of the judgments of the European Court of Human Rights (ECtHR). Decisions regarding the suspension of rights of representation, withdrawal, or exclusion of a Member State from the organization are vested with the Committee of Ministers (Arts 8 and 9 COE Statute). Under Statutory Resolution Res (51) 30, the Committee of Ministers committed itself to consult the Parliamentary Assembly before inviting a Member State to withdraw.
18 According to the COE Statute, the representatives on the Committee of Ministers are the ministers for foreign affairs (Art. 14 COE Statute). In practice, the foreign ministers attend only once a year and are replaced by their permanent representatives, usually ambassadors resident in Strasbourg. As the Ministers’ Deputies, the latter meet almost on a weekly basis, exercising the functions and powers of the Committee of Ministers, thereby ensuring the continuity of inter-governmental work.
19 Each Member State has one representative on the Committee of Ministers and each representative has one vote. The COE Statute requires for most decisions, including the adoption of conventions and agreements, only a two-thirds majority of the representatives casting a vote and a majority of the representatives entitled to sit on the Committee of Ministers (Art. 20 (d) COE Statute). In practice, there is a policy of requiring consensus on major decisions, which inevitably favours the adoption of resolutions reflecting the lowest common denominator (International Organizations or Institutions, Voting Rules and Procedures).
20 In many cases decisions regarding new activities are taken on a proposal made by the Parliamentary Assembly in the form of a recommendation. While the Committee of Ministers may accept, reject or modify the Parliamentary Assembly’s proposals, it must explain its action and the reasons thereof in the report presented to the Parliamentary Assembly at each part-session by the chairperson of the Committee of Ministers. This is an occasion when parliamentary questions and debate have their influence. The Committee of Ministers also takes decisions ‘on its own initiative’, on the proposal of one or several governments or of one of the inter-governmental committees (Section D.6 below).
2. Parliamentary Assembly
21 The Parliamentary Assembly is the deliberative organ of the COE (Art. 22 COE Statute). In 1974, the term ‘Consultative Assembly’ was changed into ‘Parliamentary Assembly’, which better reflects its current status in the organization (COE Parliamentary Assembly ‘Recommendation 1763/2006: The Institutional Balance at the COE and the Reply from the Committee of Ministers’). It often acts as a political engine, discussing and making recommendations to the Committee of Ministers on any matter within the competence of the organization, either on its own initiative or when requested by the Committee of Ministers for its opinion. It also adopts resolutions on matters not requiring action by the Committee of Ministers. The Parliamentary Assembly elects the Secretary General, the Deputy Secretary General, its own Secretary General, the ECHR judges, and the COE Commissioner for Human Rights.
22 National delegations to the Parliamentary Assembly vary in numbers according to the size of the Member States, running from 18 for the major countries (France, Germany, Italy, the Russian Federation, Turkey, and the UK) to two for the smallest (Andorra, Liechtenstein, Monaco, and San Marino). In 2018, the Parliamentary Assembly counted 648 members (324 representatives and the same number of substitutes). Since April 2004, representatives of the Turkish Cypriot community participate in its work as members of the Cypriot delegation (COE Parliamentary Assembly Resolution 1376 (2004)). Their places had been left vacant since the political crisis in Cyprus (1963–64). The Parliamentary Assembly has its own system of European political groups: Socialists, Christian Democrats, Liberals, European Democrats, Unified Left, Free Democrats, and others—members belonging to no political group.
23 Representatives are elected by the parliaments of Member States. National delegations reflect in miniature the political spectrum of each Member State because they must include members of the different political parties, roughly in proportion to the strength of the parties in the national parliaments. Their composition must be gender-balanced (COE Parliamentary Assembly Resolution 1360 (2004)). Participation and voting rights may be suspended when a delegation’s composition does not meet these requirements or when the country in question does not comply with basic conditions for membership (respect for democracy, human rights, and the rule of law, see Art. 3 COE Statute). These provisions give the Parliamentary Assembly a tool to effectively sanction the behaviour of governments even in cases where the Committee of Ministers is not willing to take action. Between 1981 and 1984, the credentials of the Turkish delegation were not recognized following the military coup d’état in this country. From April 2000 to January 2001, the voting rights of the Russian delegation were suspended due to massive human rights violations during the armed conflict in Chechnya. In April 2014 and again in April 2015, the Assembly suspended the voting rights of the Russian delegation, as well as some rights of participation or representation, until the end of the 2014 session (Resolution 1990  and Resolution 2034 ). These decisions were motivated by alleged grave violations of international law in respect of Ukraine by the Russian Federation, including the COE Statute and Russia’s accession commitments. The sanction powers of the Assembly have been challenged on political and legal grounds. In June 2017, the Russian Federation suspended the payment of the remainder of its 2017 budgetary contribution until the full and unconditional restoration of its credentials. Pending the resolution of the question of legality as regards the measures taken and notwithstanding the fact that these decisions are no longer in force, the Russian Federation has continued to suspend payment of its contribution in 2018.
24 The Parliamentary Assembly holds four part-sessions a year, usually of five days. It has set up committees, such as political affairs and democracy; legal affairs and human rights; social affairs, health and sustainable development; and culture, science, education and media, which prepare reports and draft texts for the plenary body. The committees hold frequent inter-sessional meetings—some of them in the capitals of the different Member States—thus ensuring continuity of the work. In addition, the Parliamentary Assembly organizes conferences and colloquies on topical subjects.
25 The COE’s political action manifests itself principally in the public debates of the Parliamentary Assembly, which considers itself the ‘democratic conscience of Europe’. Major issues of European integration and foreign policy are debated, often with the participation of heads of government or ministers from Member States and other countries. Among the topics of debate have been the role and preservation of parliamentary democracy, Europe’s responsibilities in the world, relations with Eastern European countries, the situation in the Middle East—debated on different occasions with the foreign ministers of Egypt, Israel, Jordan and Syria, Israel, and the Arab States—human rights in Latin America, the North-South dialogue, the Helsinki Conference and the Final Act on Security and Co-operation in Europe (Helsinki Final Act (1975)), the future of European integration. In 2007, the Parliamentary Assembly decided to hold biannually a regular debate on the state of human rights and democracy in Europe.
26 The Parliamentary Assembly also plays an important role in the development and co-ordination of European co-operation. Since the foundation of the COE in 1949, Europe has witnessed a proliferation of organizations: the Organization for European Economic Co-operation (‘OEEC’)—later the Organization for Economic Co-operation and Development (OECD)—, the European Coal and Steel Community (ECSC), the European (Economic) Community and Union, the European Atomic Energy Community (Euratom), the European Bank for Reconstruction and Development (‘EBRD’), and various technical organizations. A number of other inter-governmental organizations, including several of the United Nations Specialized Agencies (United Nations, Specialized Agencies), submit reports on their activities to the Parliamentary Assembly, thus enabling it to review, and make suggestions about the broad picture of international co-operation in Europe. The best example of this, which extends beyond the confines of Europe, is furnished by the annual debate on the work of the OECD, often attended by parliamentarians from Australia, Canada, Chile, Japan, Korea, Mexico, New Zealand, and the US.
3. European Court of Human Rights
27 Established in 1959 under the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘ECHR’) and enjoying all the prerogatives of an independent international tribunal, the ECtHR belongs to the institutional structure of the COE. Privileges and immunities of the ECtHR and the judges, as well as their conditions of service, are governed by the COE instruments (eg Sixth Protocol to the General Agreement on Privileges and Immunities of the Council of Europe (1996); Resolution CM/Res (2009) 5 on the Status and Conditions of Service of Judges of the European Court of Human Rights and of the Commissioner for Human Rights). Judges are elected by the Parliamentary Assembly. The ECtHR enjoys administrative autonomy in staff matters (see CM/Res (2011) 9 amending the Staff Regulations with regard to Delegation of Staff Management Powers to the Registrar of the European Court of Human Rights).
28 The ECHR allows States and individuals to have human rights violations examined and decided with binding force. Over the years, it has developed into the most successful regional human rights protection mechanism. All Member States are parties to the ECHR. Since 2006, the ECtHR has delivered some 1500 judgments annually. Its case-law exercises an important influence over the development of human rights law even beyond Europe. It has prompted numerous legislative and administrative reforms as well as changes in the case-law of domestic courts (International Law and Domestic (Municipal) Law, Law and Decisions of International Organizations and Courts).
4. Congress of Local and Regional Authorities of Europe
29 The Congress of Local and Regional Authorities of Europe (‘Congress’) was established in 1994 originally under the Committee of Ministers’ Resolution (94) 3, revised by Resolution (2000) 1. Unlike its predecessor, the Conference of Local Authorities, which had been created in 1957, the Congress is de facto an organ of the COE. Composed of local and regional elected representatives, the Congress consists of two chambers, the chamber of local authorities and the chamber of regions, representing over 200,000 European municipalities and regions. In 2007, the Committee of Ministers adopted a new Charter of the Congress (COE Committee of Ministers Resolution (2007) 6). It underlines the importance of close co-operation with the national associations which represent local and regional authorities, and with the other European partners, notably with the Committee of the Regions of the European Union (‘EU’).
30 The Congress is a forum for dialogue where representatives of local and regional authorities discuss common problems, share experiences and propose action to the national governments. It also prepares new legal instruments and monitors the effective implementation of the principles set forth in the European Charter of Local Self-Government of 15 October 1985. The Congress is also in charge of local and regional election monitoring and assists new Member States in legislative reform.
5. Council of Europe Commissioner for Human Rights
31 The Council of Europe Commissioner for Human Rights (‘Commissioner’) is a ‘non- judicial institution which promotes the education, awareness and respect for human rights, as embodied in human rights instruments of the Council of Europe’ (Art. 1 Committee of Ministers’ Resolution (99) 50 of 7 May 1999, which established the Commissioner’s office). Visits to Member States and dialogue with governments are essential in carrying out the Commissioner’s mandate, which focuses on the effective implementation of human rights standards and protection of human rights defenders (Mandates). The Commissioner co-operates closely with ombudspersons (Ombudsperson), national human rights institutions, and non-governmental organizations. The Protocol No. 14 to the ECHR granted the Commissioner the right to intervene as a third party in cases pending before the ECtHR.
6. Expert Committees
32 Art. 17 COE Statute empowers the Committee of Ministers to set up ‘advisory and technical committees or commissions for such specific purposes as it may deem desirable’. In 2018, there were more some 20 ‘steering committees’ or other bodies implementing the COE’s programme of activities (Section E.6 below). Apart from governmental experts, representatives of international non-governmental organizations may participate as observers. Indeed, some 300 non-governmental organizations enjoy participatory status with the COE (on the basis of Resolution CM/Res (2016) 3 on Participatory Status for International Non-Governmental Organisations with the Council of Europe).
33 Intergovernmental work receives an important impetus from the conferences of specialized ministers. The Committee of Ministers being confined to the ministers for foreign or European affairs (or their ambassadors), it was judged important to organize at regular intervals separate conferences of other ministers (eg justice, education, labour, family affairs, sports, or culture).
7. Partial Agreements
34 These agreements allow a limited number of Member States to carry out a certain activity within the institutional framework of the COE in spite of the abstention of other Member States. A partial agreement remains an activity of the whole organization, albeit with a separate budget and working methods determined solely by its Member States. After being authorized by the Committee of Ministers to do so, the interested Member States adopt a resolution setting up the partial agreement which contains the agreement’s statute. In the event of non-Member States participating, one speaks of an ‘enlarged partial agreement’ or, in the case of all Member States having joined, of an ‘enlarged agreement’ (Statutory Resolution (93) 28 on Partial and Enlarged Agreements, which replaced Resolution (51) 62E, adopted by the Committee of Ministers at its 9th Session on 2 August 1951).
35 Due to their flexibility and capacity to mobilize additional resources, partial agreements have become an important feature within the COE’s institutional framework. Starting in 1956 with the COE Resettlement Fund—now the COE Development Bank—, 15 partial agreements have so far been concluded (eg the European Support Fund for the co-production, distribution and exhibition of European cinematographic works ‘Eurimages’, the European Centre for Global Interdependence and Solidarity (North-South Centre), the Co-operation Group to Combat Drug Abuse and Illicit Trafficking in Drugs [Pompidou Group], the European Commission for Democracy through Law (Venice Commission) or the Agreement establishing the Group of States against Corruption (GRECO)).
36 All organs and bodies of the COE are served by a single Secretariat whose composition respects the principles of independence and equitable geographical distribution (International Organizations or Institutions, Secretariats). The Secretary General, the Deputy Secretary General, and the Secretary General of the Parliamentary Assembly are elected by the Assembly on the proposal of the Committee of Ministers. The strength of the Secretariat in 2012 was about 2000 (see Civil Service, International). Disputes between staff members and the Secretary General are adjudicated upon by the Administrative Tribunal of the COE, which in 1994 replaced the formerly existing Appeals Board (Administrative Boards, Commissions and Tribunals in International Organizations).
E. Main Achievements and Activities
1. Human Rights
37 The COE is best known for its work for the protection of human rights, based on the ECHR and its Protocols. They set out inalienable rights and freedoms and established an international enforcement machinery built around the ECtHR. Over the years, the protection of human rights has been extended by numerous other legal instruments, some of which have set up independent human rights monitoring mechanisms:
38 The European Social Charter (1961) protects fundamental social rights. Its monitoring procedure is based on national reports submitted by States Parties and a collective complaints procedure. The developments in labour law (Labour Law, International) and social policies prompted the adoption of a Revised European Social Charter which entered into force in 1999. The instrument, which is progressively replacing the original charter, was drafted in such a way as to be autonomous from the original charter, but with the same supervisory mechanism (Part IV, Art. C).
39 The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (1981) and its Additional Protocol (2001). Both were revised and merged into a single treaty (Convention 108+) through an amending protocol which was opened for signature on 10 October 2018 (Data, Transboundary Flow, International Protection; Privacy, Right to, International Protection).
40 The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987) (Torture, Prohibition of). It set up a preventive mechanism to protect persons deprived of their liberty (Liberty, Right to, International Protection), based on a system of visits by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (‘CPT’).
41 The European Charter for Regional or Minority Languages (1992) (Minorities, European Protection). Although its primary purpose is the protection of regional or minority languages as part of Europe’s cultural wealth, the charter also offers protection to linguistic rights and the committee of independent experts pursues a human rights approach in its monitoring activity.
42 The Framework Convention for the Protection of National Minorities (1995). Its monitoring mechanism involves country visits and country-specific opinions by an advisory committee of independent experts, which form the basis for the Committee of Ministers’ targeted conclusions and recommendations.
44 The Convention on Action against Trafficking in Human Beings (2005) (Human Trafficking) established a monitoring mechanism consisting of the Group of Experts on Action against Trafficking in Human Beings (‘GRETA’), a multidisciplinary panel of 15 independent experts, and the Committee of the Parties to the Convention. GRETA draws up country evaluation reports containing an analysis of the implementation of the Convention by each party and proposals for further action. On the basis of GRETA’s reports, the Committee of the Parties may adopt recommendations concerning the measures to be taken to implement GRETA’s conclusions.
45 Another independent human rights monitoring mechanism is the European Commission against Racism and Intolerance (‘ECRI’) which was established by the first summit of heads of State and government in Vienna 1993 (Racial and Religious Discrimination). The ECRI’s task is to combat racism, xenophobia, anti-Semitism, and intolerance from the perspective of the protection of human rights. It regularly monitors the situation in all Member States and adopts general policy recommendations.
46 The ECtHR increasingly uses conclusions and recommendations of the independent human rights monitoring mechanisms. Through their integration into the Court’s case-law, they acquire added legitimacy and above all legally binding force. This approach, which is consistent with the idea of the ECHR as a living instrument, allows the ECtHR to develop its jurisprudence in line with commonly accepted standards.
47 The COE is constantly seeking to strengthen and develop human rights protection in Europe through new legal and political instruments which are adopted in the various fields of inter-governmental co-operation. Besides the Steering Committee for Human Rights (‘CDDH’), whose remit covers human rights generally, including gender equality (Equality of Individuals; Women, Rights of, International Protection), there are other specific activities concerning the information society and media (see in particular the Internet Governance Strategy 2016–2019; European Convention on Transfrontier Television (1989); Information and Communication, Freedom of; Opinion and Expression, Freedom of, International Protection; Telecommunications, International Regulation). The action plan adopted at the Third Summit of Heads of State and Government in Warsaw 2005 reaffirmed the COE’s role as ‘the primary forum for the protection and promotion of human rights in Europe’. The Council of Europe’s transversal programme ‘Building a Europe for and with Children’ was launched in 2006. The Strategy on the Rights of the Child 2016–2021 proposes action on the following strategic objectives: promoting child-friendly services and systems; eliminating all forms of violence against children; guaranteeing the rights of children in vulnerable situations; promoting child participation.
2. Legal Co-operation
48 Legal co-operation constitutes the most important standard-setting activity of the COE, after its work for human rights. It relates to various topics of international law, the harmonization of national legislation and practice in certain sectors (Unification and Harmonization of Laws), the prevention of crime and terrorism and the treatment of offenders. It has led to the conclusion of more than 60 conventions, agreements, and protocols. Some of the more important ones are:
49 International law: European Convention for the Peaceful Settlement of Disputes (1957); European Convention on State Immunity (1972); conventions on multiple nationality (1963), on nationality (1997), and on avoidance of statelessness (2006). (See also Peaceful Settlement of International Disputes; State Immunity.) The Committee of Legal Advisers on Public International Law (CAHDI) brings together the legal advisers of the ministries of foreign affairs of the Member States as well as of a significant number of observer States and international organizations.
50 Criminal law: conventions on extradition (European Convention on Extradition (1957); Additional Protocol (1975); Second Additional Protocol (1978); Third Additional Protocol (2010); Fourth Additional Protocol (2012)); mutual assistance in criminal matters (1959); transfer of sentenced persons (1983 and protocols of 1997 and 2017); money laundering (1990); money laundering and financing terrorism (2005); corruption (1999); the suppression (2003) and prevention (2005) of terrorism; foreign fighters (2015); sexual exploitation of children (2007) (Children, International Protection; Mutual Legal Assistance in Criminal Matters). The Budapest Convention on Cybercrime (2001) has become a worldwide standard.
51 Civil law: conventions on adoption (1967 and 2008), the status of children born out of wedlock (1975), and on recognition and enforcement of decisions concerning custody of children (1980). (See also Mutual Legal Assistance in Civil and Commercial Matters).
52 In addition, a European Commission for the Efficiency of Justice (‘CEPEJ’) prepares benchmarks, collects and analyses data on the efficiency of justice in the Member States, and defines instruments and means of evaluation.
3. Social Cohesion
53 Most important among the various conventions and agreements concluded in the social field are the European Social Charter of 1961 (Section E.1 above) and the European Code of Social Security (1964)—its revised version of 1990 did not enter into force—which guarantee minimum levels of protection, including medical care, sickness benefit, employment injury compensation, maternity, unemployment, invalidity and survivors’ benefits, family allowances, and pensions (Health, Right to, International Protection; Social Security, Right to, International Protection). Apart from social protection and social security issues, activities have focused on people with disabilities, children and family issues, migration, and Roma and Traveller communities-creation of the ‘European Roma and Travellers Forum’ in 2004 to give a voice to those populations throughout Europe and adoption of the ‘Strasbourg Declaration on Roma’ (2010).
54 The COE Development Bank provides financial assistance to Member States. Its action now extends beyond its initial priority, the resettlement of refugees, displaced persons, and victims of natural or ecological disasters, and comprises new social and economic goals, such as social cohesion or support for judicial reform. The COE Development Bank’s annual lending volume amounts to more than €2 billion.
4. Culture, Education, Heritage, Sport and Youth
55 The European Cultural Convention of 1955 provides the framework for the COE’s work on education, culture, heritage, youth and sport in which all Member States, Belarus and the Holy See participate. Accession to the European Cultural Convention has traditionally been a first step for membership in the COE. Work has focused on the protection of cultural heritage, the promotion of European cinema, European art exhibitions, inter-cultural dialogue and national cultural policy reviews. The ‘Compendium of Cultural Policies and Trends in Europe’ is a Europe-wide information system on cultural policy measures, instruments, debates, and trends providing statistical data, indicators, cross-country comparisons, and good practices.
56 Education-related activities have included consultations about and planning of projects in school and out-of-school education (policies, curricula, and methods), education for democratic citizenship, inter-cultural education, training for education professionals, equivalence of diplomas, and revision of history textbooks (Education, Right to, International Protection). Jointly with the United Nations Educational, Scientific and Cultural Organization (UNESCO), the Convention on the Recognition of Qualifications concerning Higher Education in the European Region was opened for signature in 1997. The Council also actively contributes to the ‘Bologna Process’, which aims at establishing a European higher education area.
57 The COE has also been active in the field of regional planning, natural heritage, landscape protection, and sustainable development, including through the drafting of the Convention on the Conservation of European Wildlife of 1979 in Berne (Conservation of Natural Resources; Environment, International Protection).
58 Intergovernmental co-operation in the area of sport has produced conventions combating spectator violence, such as the European Convention on Spectator Violence and Misbehaviour at Sports Events of 1985, prohibiting doping, such as the Anti-Doping Convention of 1989 (International Sports Law), and combating the manipulation of sports competitions (such as the Macolin Convention, 2014). The COE helped set up the World Anti-Doping Agency (‘WADA’) and actively contributes to its policy. As from 2007, the intergovernmental work in the field of sport has been continued in the form of the Enlarged Partial Agreement on Sport (‘EPAS’) (Section D.7 above).
59 The COE’s work for youth is carried out through the European Youth Centres in Strasbourg and Budapest and the European Youth Foundation. The former are international residential training and meeting centres while the latter finances various activities of national and international youth organizations.
5. Public Health
60 A dozen conventions and agreements have been concluded in the field of public health, the most important being that on the elaboration of a European Pharmacopoeia of 1964 and on human rights and biomedicine of 1997, which is being progressively complemented by additional protocols (Public Health, International Co-operation). The European Pharmacopoeia sets out common compulsory standards (monographs) to guarantee the quality of medicines. With a view to developing an ethical European health policy, current activities cover the quality of health care services, blood transfusion, organ transplants, and health education for young people.
6. Co-operation Activities
61 Standard-setting programmes and monitoring activities are complemented by targeted assistance activities consisting of policy advice, capacity building, and awareness-raising. In 2018, the overall volume of co-operation projects reached nearly €200 million. Country-specific action plans and co-operation documents set strategic priorities with beneficiary countries and the resources required to achieve them. Extra-budgetary resources provide the main source of funding for COE co-operation programmes. Such resources include voluntary contributions from Member States, the European Union (EU), and other sources, including observer States, non-Member States, and non-governmental or private sector sources.
F. The Current Role of the COE in European Integration
62 Today’s architecture of European organizations and institutions is considerably more complex than in 1949, when the COE was founded. The COE’s remit and activities are influenced by the activities of other organizations and institutions, in particular the EU and the OSCE. The COE co-operates closely with both.
63 Co-operation between the COE and the OSCE received a new impetus through the Joint Declaration endorsed by the Third Summit of Heads of State and Government of the COE in Warsaw 2005. It focuses on the fight against terrorism, the protection of the rights of persons belonging to national minorities, action to combat human trafficking, and the promotion of tolerance and non-discrimination. Compared to the OSCE, which relies on diplomatic means and large field operations, the COE distinguishes itself through its acquis of legal norms and monitoring activities. The effectiveness of both organizations’ action can be enhanced by pooling their respective resources. One example is the OSCE’s High Commissioner on National Minorities who, in his work with individual governments, relies on the standards and results of monitoring activities carried out under the Framework Convention for the Protection of National Minorities of 1995 and the European Charter for Regional or Minority Languages of 1992.
64 Both the COE and the EU are seeking to achieve greater unity between the States of Europe through respect for the shared values of pluralist democracy, the rule of law, and human rights (European Union, Historical Evolution). Numerous COE conventions are part of the EU’s acquis, on the basis of which closer co-operation within the EU has been developed. The COE has been, and continues to be, instrumental in preparing applicant countries for the EU accession, in particular through its assistance in the fields of institution building, human rights, and justice.
65 Co-operation has continuously intensified, in particular following the extension of the EU competencies to areas hitherto reserved to intergovernmental co-operation within the COE (eg justice and home affairs). Following the 1987 Arrangement between the COE and the European Community and the 2001 Joint Declaration on Co-operation and Partnership, the COE, and the EU concluded in May 2007 a Memorandum of Understanding. Acknowledging that the COE will remain the benchmark for human rights, the rule of law and democracy in Europe, the memorandum contains guidelines and practical arrangements for increased co-operation in many areas.
66 Participation of a steadily increasing number of COE Member States in a more closely integrated EU has had important repercussions on the work of the organization, in particular in the field of standard-setting (see the Report by Jean-Claude Juncker, Prime Minister of Luxembourg, ‘Council of Europe - European Union: “A Sole Ambition for the European Continent”’ (2006)). In recent years, there has been a tendency to align new COE instruments with EU legislation (eg on data protection, money laundering, and human trafficking). The new quality of community and union law may even result in the adoption of legal instruments that replace COE conventions, at least as far as relations between EU Member States are concerned (eg the Framework Decision on the European Arrest Warrant superseded COE extradition treaties as between EU Member States).
67 The requirements of deepening EU integration are also invoked to justify the use of so-called ‘disconnection clauses’ in COE conventions, such as Art. 27 (1) European Convention on Transfrontier Television and Art. 40 (3) COE Convention on Action against Trafficking in Human Beings of 2005. Their declared purpose is to safeguard the application of EU law between the Member States against potentially diverging provisions of an international treaty. Applying one of these clauses, the Court of Justice of the European Communities confirmed that the EU Member States are not entitled to invoke treaty obligations in order to justify non-compliance with conflicting standards contained in an EU directive (Commission v United Kingdom (1996) para. 53). While the need for special relations clauses may be understandable in treaties aiming at regulating primarily bilateral relations between States (eg on judicial co-operation), their use in treaties guaranteeing human rights (minimum) standards is questionable. Such standards are not applied between EU Member States and do not prevent the EU from applying ‘higher’ standards. Since 2007 the clause has no longer been used.
68 The necessarily joint action of EU Member States within the COE must not lead to a marginalization of non-EU Member States. Where EU Member States act collectively, be it in treaty negotiations or within monitoring mechanisms, individual EU Member States’ capacity to contribute to the discussions is significantly reduced to merely supporting or explaining the EU position. Instead of being truly multilateral, negotiations become progressively bilateral, between the EU and its Member States on the one hand and the rest of the COE Member States on the other (eg negotiations regarding the Riga Protocol to the Convention on the Prevention of Terrorism on foreign fighters or the revision of Data Protection Convention 108 [Section E.2 above]). There is a need to achieve more clarity in regard to the competence framework of the EU’s external relations and rules relating to their exercise in so far as they directly affect COE mechanisms and procedures. Whatever form the participation of the EU in the COE may take in the future, it will be important to preserve the essential role of national experts who contribute with their knowledge and expertise. The participation of all Member States on an equal footing is an important element for establishing genuine ownership, which in turn facilitates actual compliance with COE standards.
69 In 2019, the COE celebrates its 70th anniversary. Since its creation in 1949, the COE has been a force for peace, co-operation, and democratic reform. It abolished the death penalty among its Member States and introduced the principle of parliamentary participation in the structure and work of international organizations, a precedent followed in many other international institutions. The Parliamentary Assembly acts as ‘the voice of democratic Europe’, debating and expressing its views on major international problems of our times. The Congress fulfils a similar role, focusing on questions of local and regional democracy.
70 With the fall of the Berlin Wall in 1989 and the spread of democratic values throughout Europe, the organization gained a new political dimension. It has played an essential role in supporting the transition to and the consolidation of democracy from the mid-seventies through the early nineties. Today, the COE embodies the shared commitment of more than 800 million Europeans to human rights, democracy, and the rule of law. Giving all European States an opportunity of discussing their mutual relations and acting jointly, the COE actively contributes to the creation of a Europe without dividing lines, a function of particular importance to those States which are not members of the EU.
71 The COE has established the most effective regional system for the protection of human rights in the world. Its programme of intergovernmental and co-operation activities has brought about a large measure of practical, if unspectacular, co-operation between the countries of democratic Europe. More than 200 COE treaties, building blocks of a European legal space, are the concrete result of this work. Over the years, there has been a shift from treaty-making to monitoring of compliance and assistance. Soft law instruments, such as recommendations and guidelines, have gained in importance. The COE has often played a pioneering role, preparing the ground for codification at universal level in areas such as the fight against corruption or the prevention of torture (Corruption, Fight against).
72 At summits in 1993, 1997, and 2005, the heads of State and government of the COE Member States have cast the organization as the guardian of human rights and democracy in Europe. As the council of the whole of Europe, it will have to focus on its core activities and demonstrate its capacity to uphold its standards while further defining its role vis-à-vis the other main actors on the European continent, in particular the EU and the OSCE.
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