Council of Europe as an instrument for Human Rights

The Council of Europe may be sidelined in world politics and seldom seen in the media, but it has one significant strength: governments on the European continent really want to be a member of this particular club. It is widely understood that this organisation is based on positive, democratic values which give a level of prestige to its members.

Perhaps the greatest contribution by this body to the struggle for democracy and human rights has been given while applications from States for membership have been scrutinised. Though the process is less thorough than the one for European Union (EU) accession, there is also, for Council of Europe membership, a need demonstrate a clear commitment to basic human rights standards. One effect of this approach is that Belarus under President Lukashenko has not been welcomed into the community.

While the EU has had problems in finding methods of monitoring whether its members actually live up to the pledges given in the accession process, the Council of Europe has a battery of instruments with that purpose. The Parliamentary Assembly (PACE) has a special monitoring committee doing such follow up. The Committee of Ministers (CM) can initiate special procedures to review the situation on human rights and respect for human rights in particular countries. This has happened in Azerbaijan and Armenia and in Georgia and Russia after the 2008 war.

MONITORING

In fact, monitoring the democratic and human rights credentials of Member States is a major part of what the Council of Europe is all about. Apart from the special procedures directed towards particular countries, there are standard processes that apply to all Member States, or at least all of which that have ratified the relevant treaties (those that have not done so are instead encouraged to ratify).

The Council of Europe Commissioner can investigate and address basic and structural human rights problems in the Member States wherever and whenever he or she so choses. The Committee for the Prevention of Torture (CPT) monitors prison conditions on the basis of its own in situ inspections and the European Commission against Racism and Intolerance (ECRI) monitors and reports on progress and problems falling within its mandate. Other mechanisms are set up to review implementation of the various Council of Europe human rights treaties.

In other words, the Member States are made subject to a fairly systematic and multifaceted scrutiny in relation to their human rights performance. Indeed, some governments do complain that they have difficulties to cope with the many delegations from the Council of Europe.

Such monitoring and verification activities build one of the pillars in the Council of Europe human rights program. The two other pillars are standard setting and assistance.

STANDARD SETTING

Apart from the landmark European Convention on Human Rights (ECHR) with its additional protocols, there are a great number of other Council of Europe treaties dealing with human rights matters. The Social Charter, also in a revised version, spells out minimum standards on economic and social rights and allows Member States gradually to ratify more of the provisions spelled out in the treaty.

Minority rights are defined in two major conventions. One is about the rights of national minorities and the other about regional and minority languages. Also these should be ratified by Member States to enter into force and be binding on those who have so decided. Special committees are set up to monitor implementation. The same approach is applied on more recent treaties dealing with human trafficking, corruption and money laundering.

The actual drafting of the treaties is in the hands of the intergovernmental structures of the Council. When it is decided that a certain issue should be addressed in a draft convention for possible adoption, this matter is delegated to a subcommittee of the CM composed of governmental experts, which report to the CM (normally consisting of Ambassadors, the Permanent Representatives, of the Member States in Strasbourg).

The European Convention is also part of the national law of each Member State, which certainly increases its impact and importance. The decisions of the Court, the case law, are to be seen as authoritative interpretations of the Convention and thereby also standard setting.

The idea is that the other ratified treaties should also be seen by the Member States as guiding the lawmaking and judicial processes.

ASSISTANCE

Within the limits of its resources the Council of Europa has a fairly ambitious program seeking to assist Member States to build a culture of human rights. There are Council of Europe offices in several Member States, tasked with the promotion for implementation of agreed standards and programs.

The focus is largely on providing expertise as well as training for key office holders. There is an ambition to link the advisory services with conclusions and recommendations from the various treaty bodies and expert committees. There is certain cooperation with the EU in this field and some projects are partly funded by the EU.

An interesting addition to the assistance efforts are provided by the European Commission for Democracy through Law (Venice Commission) which is composed of legal and constitutional experts in the different countries (some non-European countries are also part of the Commission). One activity of the Commission is to review key law proposals and issue Opinions to guide national decision makers. No doubt, the Commission has largely, and positively, contributed to the development of Constitutions in a number of Member States, not least in the newer democracies.

OVERALL IMPACT

The three pillars, standard setting, assistance and monitoring, go hand in hand and inter-relate closely. The work on new standards is oft en the result of experiences from assistance and monitoring work. The purpose of assistance is largely to encourage the implementation of the standards and the program is, in reality, often based on recommendations from those who do the monitoring. In that sense, there is an inner logic in the overall human rights program of the Council of Europe.

My experience is that much has been achieved through this program. The systematic and comprehensive approach has caused sustained positive changes. Values have changed. Still, I have the feeling that the impact could have been even greater. The problem is that the potential of the Council of Europe is underrated, that the human rights mechanisms therefore tend to be under-utilised. Linked to this is the fact that the Council is under-resourced.

There is a need for a deeper discussion about the future of the Council of Europe and how its potential could be made to further promote human rights in a continent which continues to face serious human rights problems.

Let me mention some problems which ought to be addressed in such a discussion.

RELATIONS TO OTHER INTERNATIONAL
ORGANISATIONS…

The Council of Europe is of course not alone. Other international and intergovernmental bodies are involved in human rights issues in Europe. The most important ones are the Organization for Security and Cooperation in Europe (OSCE) and the various United Nations bodies with outreach in Europe, as well as the EU.

The basic idea behind the OSCE activities is conflict prevention rather than human rights – though the distinction is not always obvious. The mandate of its High Commissioner for National Minorities (HCNM) is to seek solutions to tensions in relation to the status of national minorities which tend to be about their rights.

The Office for Democratic Institutions and Human Rights (ODIHR) certainly deals with human rights problems – it has a program on election monitoring, does trial observations and promotes the rights of Roma people. Other relevant OSCE mechanisms are the special representatives on media freedom and on trafficking of human beings. The OSCE has members and programs also in Central Asia.

Also the UN has human rights-related programs. The United Nations Development Programme (UNDP) has a coordinating role in the UN “one house” approach and has offices in several European capitals. Among the special agencies the High Commissioner on Refugees (UNHCR) and UNICEF play a crucial role in setting standards and providing assistance. The High Commissioner for Human Rights is certainly highly relevant as are the treaty bodies monitoring the implementation of  the UN human rights treaties.

The standard setting, assistance and monitoring work of these structures plus the Council of Europe and the EU do complement one another. However, the coordination between them is a genuine problem. Attempts to prevent too much overlap and crossed wires have, thus far, not been sufficiently successful. There are in some cases tendencies of unproductive competition rather than mature coordination.

…AND IN PARTICULAR THE EUROPEAN UNION

The coordination on human rights between the Council of Europe and the EU has not worked well in spite of declarations on “European values” which have been strikingly similar.

Instead of basing its human rights work on the already agreed European Convention on Human Rights the EU drafted and adopted a separate charter which added very little to what was already in the ECHR (in particular read in the context of the case law of the Court). The new substance in the charter could have been included in the ECHR through an additional protocol, if the will had been there.

Furthermore, the authors of the charter created some confusion by using the term “fundamental rights” instead of human rights – while not clarifying the difference between the two concepts.

While the roots of the EU reach back to agreements on trade and economics, the Council of Europe’s history goes back to values relating to democracy and human rights. However, with the widening of the mandate of the organisation that we now know as the EU, concerns about human rights, including social rights, were put on the agenda, not least through initiatives of the European Parliament. This should have increased the interest in coordination on both sides.

The Council of Europe has Member States in Europe outside the EU bloc, among them Russia Georgia, Armenia, Azerbaijan, Moldavia and Turkey – countries which have been high on the EU foreign affairs agenda. It is my impression that the EU has only partially used its channels to the Council of Europe for learning from the
knowledge and experience of that body. However, I think a positive change came with Catherine Ashton and Stefan Fule in Brussels and Torbjorn Jagland in Strasbourg.

It seems that coordination between the structures depends largely on the interest and goodwill of individual office-holders. The absence of effective coordination structures is surprising in view of the fact that all EU members are also members of the Council of Europe.

A discussion is ongoing about the possibility of the EU to ratify the ECHR. Of course, all EU Member States are parties to that treaty – what is under negotiation is whether the union structures should also be brought under the jurisdiction of the Strasbourg Court. This makes sense in view of the fact that that decisions are taken by the EU Council, Commission and also the Luxembourg Court which affect the human rights situation in the Member States. However, the negotiations are complicated and now seem to move slowly. One reason appears to be the position of the United Kingdom.

REACTION AGAINST INTERNATIONAL JUSTICE

Representatives of the UK have taken the lead in the criticism against the Strasbourg Court. The issue which appears to have initiated the negative position was a ruling by the Court against the blanket policy in the UK of depriving every prisoner of the right to vote in national and local elections. The UK government has argued that the Strasbourg Court should not meddle into such issues. Furthermore, the competence of the judges in Strasbourg was questioned in the UK debate and it was even proposed
that the State should declare itself no longer a party to the ECHR.

Though these positions appear to be part of an “anti-Europe trend” in the country, they should be taken seriously. The Court itself should of course be open to improve its conduct on aspects raised in well-based criticism. However, the main problem is the generalised nature of the UK points with its undercurrent of rejecting the need for UK citizens to have the possibility, as a last resort, to appeal to Strasbourg.

It would not be surprising if some other Council of Europe Member States would draw the conclusion that they also want to opt out of the Strasbourg system. If so, the most advanced international judicial institution for human rights would start unravelling.

If you study the extent of implementation of Court rulings you will see that the UK is not the only State Party who delay or ignore acting upon the decisions. Other Member States are less noisy but one could detect an increasing resistance in other countries as well against the Court.

My view is that the Strasbourg Court has given an enormous contribution to the protection of human rights in Europe. It has made the ECHR a living instrument of great importance for the interpretation of norms which are part of the national legislation in all Member States.

It has reformed itself and increased its “productivity” without falling into the trap of superficial decisions. The time between submission and decision is still too long, though even here we notice progress.

Other human rights mechanisms of the Council have on occasion been criticised – by governments who have objected to reports. One target has been the European Commission of Racism and intolerance, which was attacked by the then Danish government after a critical report. Myself, I was – when still Commissioner – called an “idiot” by a Minister of the same government.

However, such responses have been very rare. One reason might be that the Council of Europe actors have generally been cautious and competent. This, however, does not necessarily mean that their recommendations have been acted upon.

CONCLUSIONS

I stated that the Council of Europe’s contribution to human rights protection is underrated. Though there are quite a number of human rights defenders as well as officials in the government administrations who genuinely appreciate the Council’s efforts, these are seldom reflected in the media or in political debates. This is partly due to the methodology of the Council: while reports sometimes create news, neither standard-setting nor assistance is seen as particularly interesting. My opinion, however, is that much of the activities for human rights are full of human drama which deserves a higher level of public interest.

I also said that the mechanisms of the Council are under-utilised. This may not be the case of the Strasbourg Court which in fact has been flooded with submissions. What I had in mind was the knowledge and experience which have developed in the various bodies in the Council. Governments and other organisations, including the EU, could benefit from a much more active consultation with these available resources.

Finally, I also took the liberty to stress that the Council is under-resourced financially. In fact, it is amazing that so much has been achieved in relation to the finances made available. The Council of Europe has had a zero-increase-budget for a decade now, which in reality means a gradual decrease of budgetary resources year-by-year.

This has led to a mismatch between the enormous task with which it is faced and the limited possibilities to meet the challenge. More could be done.That is why I hope there will be a more informed discussion on the Council of Europe and its work for Human Rights.

(The text is from a lecture at the Utrecht University in March which will soon be published by the Netherlands Institute of Human Rights (SIM) in its quarterly journal).