1. Introduction
1.1. Procedure
1. On 3 October 2011, the Parliamentary Assembly decided
to refer to the Committee on Legal Affairs and Human Rights, for
report, the motion for a resolution “The accession of non-member
States to Council of Europe conventions”.
At its meeting on 16 November 2011,
the committee appointed me as rapporteur. On 11 December 2012, the
committee held a hearing in Paris with the following experts:
- Mr Guy De Vel, former Director
General of Legal Affairs, Council of Europe
- Mr Rolf Fife Einar, Director General of the Department
for Legal Affairs, Ministry of Foreign Affairs, Norway
1.2. Scope of the report
2. The purpose of this report is to examine the modalities
by which the Council of Europe opens its conventions to non-member
States. Opening more Council of Europe conventions to non-member
States could assist them in raising their human rights standards
and respect for the rule of law, but a balance should be struck
between this premise and ensuring that the Organisation’s standards
are not compromised by States which do not share its values.
3. The preparatory work on this report has demonstrated that
the participation of non-member States is seldom the subject of
comprehensive debate and analysis and that very few of these States
have acceded to Council of Europe conventions.
4. When the Council of Europe draws up and then adopts a convention,
it may decide to open it up to participation by States which are
not members of the Organisation. If non-member States have been
involved in negotiations on the instrument in question, they are
usually automatically entitled to ratify and become Party to it.
Other States which are not members of the Council of Europe and
have not participated in the negotiations may request to be invited
to accede to the convention if the instrument so provides. It would
appear that the existing title of the motion does not take this
difference into account. Hence why I proposed that the title of
the report be changed to: “The participation of non-member States
in Council of Europe conventions”. The committee accepted my proposal
on 11 December 2012.
5. I have not dealt with the accession of the European Union
to Council of Europe conventions as I consider this issue to be
beyond the scope of the present report because the matter of broadening
the conventions’ scope beyond the common European legal space should
be separate from that of European Union accession to these conventions.
The latter requires further reflection on the division of competences
between the European Union and its own member States and the legal
obligations based on treaties of the Council of Europe.
2. Overview
of the present situation
2.1. The level of accession
by non-member States to Council of Europe conventions
6. Only 41 of the 213 Council of Europe conventions
are effectively closed to non-member States, primarily due to the
fact that they deal with institutional questions which do not concern
them (for example the Statute of the Council of Europe (ETS No.
1) and the General Agreement on Privileges and Immunities of the
Council of Europe (ETS No. 2) and its six protocols). All other
conventions allow non-member States to participate either as of
right (this possibility is open to States with observer status with
the Council of Europe, those which took part in the drafting of
the conventions or States which are Party to related conventions)
or upon invitation by the Committee of Ministers, upon their request.
Virtually all substantive conventions, except the European Convention
on Human Rights (ETS No. 5) and the European Social Charter (revised)
(ETS No. 139) and their respective protocols are open to non-member
States. However, very few non-member States have in fact ratified
Council of Europe instruments
and the conventions they participated
in were mostly opened for signature before 1990, namely before the
Organisation opened up to central and eastern European countries.
7. The main reason why so few non-member States have acceded
to Council of Europe conventions could simply be that they are unaware
of their existence. That is why I concur with the Secretary General
of the Council of Europe when he states in his Report on the review
of Council of Europe conventions that: “A first necessary step would
be to improve the visibility and knowledge of Council of Europe
conventions which are … by their characteristics particularly suitable
for participation by non-member States”.
The specific measures which could
be taken to increase this visibility will be dealt with in more
depth below.
3. Issues which merit
consideration
3.1. Reasons for opening
certain conventions to non-member States
8. Globalisation has had an effect on the Council of
Europe’s normative work, as many of its conventions deal with issues
which concern not only the territory of its member States, but potentially
have a global reach. These issues include the fight against terrorism,
money laundering and the financing of terrorism, human trafficking,
the sexual exploitation of children, cybercrime, counterfeiting
medical products, the protection of personal data and the transfer
of sentenced persons. Furthermore, non-member States may have an
interest in acceding to Council of Europe conventions as some of
them replace numerous bilateral agreements, for example on judicial
and criminal co-operation. Moreover, some Council of Europe conventions
may enable emerging democracies to improve the rule of law in their
countries, for example in the areas of the fight against corruption
and human trafficking. At our hearing on 11 December 2011, one of
our experts, Mr Einar stated that when establishing the conditions
for non-member States to accede to Council of Europe conventions,
a thorough and credible vetting procedure is needed to ensure that
uniform and high standards are maintained in order to avoid compromising
the Council of Europe’s standards. I agree with him.
3.2. Conventions which
could be opened to non-member States
9. Regarding existing conventions, the majority are
in principle open for participation by non-member States. However,
some are open only to European States, but as all but one European
countries are members of the Council of Europe, this restriction
is almost obsolete. These conventions could be opened on a case-by-case
basis: 1) to non-European States which express a genuine interest;
2) if it becomes difficult to deal with a given problem in a strictly
European context; or 3) if the Council of Europe has an interest
of its own in extending the application of some norms beyond Europe.
This is, for example, the case with the European Convention on the
Suppression of Terrorism (ETS No. 90) which will be opened to non-member
States once its amending protocol enters into force.
10. As concerns future conventions, the same criteria should be
applied as with existing conventions, with the additional condition
that new conventions should be drafted bearing systematically in
mind their potential applicability to non-member States. In cases
where a convention would be open to non-member States, it would
be useful to define the procedure by which it would enter into force
(for example, automatic entry into force after a certain period
of time in the absence of any objections by the Parties).
3.3. The areas in which
Council of Europe conventions could be opened to non-member States
11. There are areas in which it is becoming increasingly
difficult to limit co-operation solely within Europe if they are
to be dealt with efficiently. These include the fight against organised
crime and judicial co-operation. Because of increasing globalisation,
it is likely that opening future Council of Europe conventions will
be more and more necessary. Moreover, one should not exclude opening
future conventions in areas of fundamental rights to non-member
States even if some should contain a reference to the European Convention
on Human Rights and/or the case law of the European Court of Human
Rights. There is already a precedent for this in that the European
Convention for the Prevention of Terrorism (CETS No. 196), which
is open to non-member States, contains two references
to
the European Convention on Human Rights. However, one should ensure that
the Council of Europe’s conventions which are open to non-member
States do not cover areas already covered by other treaties, such
as United Nations conventions, as it is likely that non-member States
will not feel the need to accede to them. For instance, Protocol
No. 1 to the European Convention for the Prevention of Torture and
Inhuman or Degrading Treatment (ETS No. 126) opened this convention
to non-member States, but so far none have acceded to it. This may
well be linked to the fact that they are already Party to the United Nations
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment.
By contrast, the Council of Europe’s
Convention on Preventing and Combating Violence against Women and
Domestic Violence (ETS No. 210) should generate considerable interest
from non-member States as this area is not yet covered by another
convention.
12. The Council of Europe could put a greater emphasis on observer
states, as this status has been conferred on States which respect
democracy, human rights and the rule of law. When a decision is
made to draft a convention that will be open to non-member States,
countries which have expressed a real interest should be involved
already at the drafting stage.
3.4. The manner in which
Council of Europe conventions could be opened to non-member States
13. Once again, a pragmatic approach should be taken
when deciding on the manner in which Council of Europe treaties
could be opened to non-member States. I agree with the Secretary
General’s proposal that “it should be borne in mind that an equilibrium
should be sought between the need to preserve, at least for some conventions,
a possibility for existing Parties to decide on the admission of
a non-member State, and the opportunity to ensure a wider diffusion
of some Council of Europe conventions”.
The Secretary General
has proposed different levels of scrutiny by the Committee of Ministers
in relation to a given convention. These are: i) opening a convention
for accession by any non-member State without any scrutiny; ii)
applying some degree of scrutiny once a State has requested to accede
to a convention, it being understood that the request would be granted
unless a State Party objects to the request within a certain period
of time; or iii) granting permission to the requesting State at
the end of a period of “observation” of its ability to participate
meaningfully in co-operation under the convention in question and
to fulfil the obligations set out therein. There may also be iv) cases
in which the Committee of Ministers wishes to ensure that only those
States which fully share the values of the Council of Europe accede
to a given convention.
The latter three options seem
to be the best suited in order to ensure that the Organisation stays
true to its values and standards and does not allow States which do
not share them to accede to its conventions.
14. There are also cases where invitations already extended to
non-member States to accede to a Council of Europe convention have
not been followed up. There could be several reasons for this, including
a change in government or in the parliamentary majority or delays
at the administrative level. In this regard, the Secretary General’s
proposal to envisage changes in the procedure before the Committee
of Ministers in order to ensure that requests for accession to Council
of Europe instruments are based on genuine interest, by strengthening the
preparatory dialogue with the State in question or by requesting
that it commits to acceding to the convention within a limited time
(for example, five years), after which the invitation would no longer
be valid, is worthy of consideration.
3.5. The promotion of
conventions which are open to non-member States
15. As previously indicated, the participation of non-member
States in Council of Europe conventions is rather low and is concentrated
almost exclusively on instruments which were opened for signature
before 1990, that is before the Organisation opened up to central
and eastern European countries. This is mainly due to the fact that
after the fall of the Berlin Wall, the Council of Europe concentrated
on inciting new member and candidate States to accede to a number
of conventions to enable them to become member States or to fulfil commitments
made when they joined the Organisation.
16. At our hearing on 11 December 2011, one of our experts, Mr
de Vel, stated that accession to treaties which are particularly
adapted, in view of their characteristics and content, to participation
by non-member States should be promoted more actively, and I agree.
This promotion could take the form of conferences, seminars and
training workshops on one or more major themes (such as the protection
of children) covered by a number of Council of Europe instruments.
In order to give more visibility to accessions, treaty ceremonies such
as those organised by the United Nations could also be held at the
Council of Europe. In the United Nations, every year the Secretary
General invites Heads of State and Government to participate in
a ceremony organised by the Treaty Section at which treaties are
signed or ratified, in order to encourage both wider participation
in the multilateral treaties of which he is the depositary and more
rapid entry into force of those treaties. The proposal of the Secretary
General of the Council of Europe to organise events of this kind
in the context of ministerial sessions or specialised conferences
of Ministers of Justice
is worth considering.
17. The Parliamentary Assembly could also play a role, as it did
on 15 June 2011
when its representatives and those
of the United Nations jointly called on the 27 European Union member
States and the European Union itself to accede to the new Council
of Europe Convention on Violence against Women and Domestic Violence.
18. Other measures which could be taken to promote Council of
Europe conventions include using visits by high-ranking politicians
or Council of Europe staff members to non-member States, for example
to discuss accession to certain conventions to which they have been
invited to accede without giving any follow-up or those which they
have signed, but not yet ratified. Furthermore, meetings with the
various bodies involved with the accession to Council of Europe
instruments could be organised, starting with States which have
observer status with the Council of Europe and those whose parliaments
have observer or partner for democracy status with the Assembly,
in order to examine the possibility of accession and to solve any
problems in this regard. One argument which could be used to promote
Council of Europe conventions is that they replace a great number
of bilateral treaties, for instance in areas such as judicial co-operation
and the fight against crime.
19. The Council of Europe’s offices, especially those in charge
of liaising with international organisations, could also promote
Council of Europe conventions, as the office in Geneva did when
it held meetings on open conventions, namely the Convention on Cybercrime
(ETS No. 185), the Council of Europe Convention on the Counterfeiting
of Medical Products and Similar Crimes involving Threats to the
Public (CETS No. 211) and the Convention for the Protection of Individuals
with regard to Automatic Processing of Personal Data (ETS No. 108).
20. Other avenues for promoting Council of Europe conventions
which are open to non-member States include using contacts both
at the political and technical levels within the framework of the
Neighbourhood Policy and the new Council of Europe co-operation
programmes with countries in the Mediterranean region and Central
Asia.
The Forum for Democracy could also
be another platform where Council of Europe instruments could be
promoted. The Secretary General’s proposal to make accession to
Council of Europe conventions more interesting for non-member States
by facilitating their participation in the “life” of the convention
by limiting as much as possible differences in the status between
Parties which are members of the Council of Europe and Parties which
are not
is of particular
relevance. I shall examine below the manner in which this could
be done.
3.6. The promotion of
future conventions
21. Non-member States which are genuinely interested
in a future convention should be encouraged to participate more
regularly in the negotiation and drafting. That is why I agree with
the Secretary General’s proposal to “introduce some sort of ‘early
warning’ procedure to inform relevant international organisations
and non-member States about the opening of negotiations of new Council
of Europe conventions providing for non-member States’ accession”.
Again,
Council of Europe offices in charge of liaison with the United Nations
and other international organisations based in Vienna and Geneva,
as well as with the OSCE, could play an important role in this respect.
3.7. Making conventions
which are open to non-member States work within the Council of Europe’s
institutional framework (monitoring, amendments, etc.)
22. Measures should be taken to ensure that all Parties
to a convention are, as much as possible, included in the main decisions
concerning the instrument. This could be done, for example, by granting
observer or participant status to Parties which are non-member States
in the intergovernmental committees which are responsible for the
implementation of an instrument (when there is not an ad hoc convention-based
body which includes all the Parties). Such participation may even
imply, in appropriate circumstances where the agreement of all Parties
to the convention is required, granting a right to vote to non-member
States when decisions are taken in these intergovernmental bodies.
23. The full participation of non-member States becomes particularly
important when financial issues and amendments to a convention are
discussed.
The question of participation
of non-member States in the Committee of Ministers’ decisions is
more delicate, notably as regards financial questions, amendments
to a convention and the monitoring of its implementation by Parties
to it. With regard to financial questions, for the moment, non-member
States are not obliged, in accordance with the conventions, to provide
any financial contribution although they benefit from the Council
of Europe’s work (including, in some cases, reimbursement of their
experts’ participation in meetings). For existing conventions to
which a non-member State is a Party, it will be difficult to require
ex post facto that it agree to contribute
financially to the implementation of a convention when the text
of the instrument does not contain provisions to that effect, even
where a follow-up mechanism entailing financial implications is
set up.
24. For new conventions whose implementation has financial implications
for the Council of Europe clauses ensuring the financial contribution
of non-member States which are Parties to the instruments could
be added. Specific conditions requiring a financial contribution
when inviting non-member States to become Parties to existing conventions
could also be envisaged.
It
may be necessary to find, according to the specific conventions
and the States concerned, specific modalities to ensure some degree
of participation in the decision-making process – notably on financial
issues – while not necessarily requiring their systematic participation
with the right to vote in the Committee of Ministers. The Secretary
General in this regard proposes the signing of bilateral agreements
or memoranda of understanding with the States concerned which set
out a sort of a regular voluntary contribution to the financing
of activities related to the implementation of the convention.
However,
in order not to deter some non-member States from acceding to open
conventions for financial reasons, a reasonable system taking into
account a country’s resources could be envisaged.
25. On the issue of the financial contribution of non-member States,
the Committee of Ministers has decided that they shall be invited
to make a minimum of €10 000 financial contribution when they participate
as of right in the follow-up mechanism of a convention to which
they are a Party.
26. Amendments of a convention raise the question of whether the
Statute and practice of the Council of Europe relating to treaty
law should apply (adoption by a majority of the Committee of Ministers
as provided by Article 20.
d of
the Organisation’s Statute) or whether it is Article 39 of the Vienna
Convention on the Law of Treaties which provides that “a treaty
may be amended by agreement between the parties” which prevails.
In practice, the extent to which
Parties which are not member States of the Council of Europe are
involved in the proposal, discussion and adoption of amendments
to a convention varies significantly. In most cases, they are consulted
either by the Committee of Ministers or in the context of a consultation
by the Parties, but their agreement is not formally required for
the adoption of amendments by the Committee of Ministers.
The Committee
of Ministers may wish in this regard to examine the possibility
of allowing the participation and agreement of all the Parties to
a convention at the level of the intergovernmental committee responsible
for the formulation of proposed amendments.
4. Conclusions
27. Capitalising on the Council of Europe’s acquis of conventions and promoting
them to non-member States has the potential of boosting the profile
of the Organisation, its political dimension and its ability to secure
its place as guardian of human rights and democracy, not only in
Europe, but also in the new sphere of freedoms currently expanding
around its borders. Furthermore, in an increasingly globalised world,
a number of societal problems can no longer be dealt with in a strictly
European context. The Council of Europe has already taken this fact
into consideration, for instance as concerns its Convention on Cybercrime
and its Convention on the Counterfeiting of Medical Products and
Similar Crimes involving Threats to the Public Health.
28. Bearing this in mind, it is important that the Council of
Europe maintains its high standards and that these are not compromised
by States which do not share them, both as concerns existing conventions
which are open or to be opened to accession by non-member States
and with regard to future conventions.
29. In the draft resolution, I propose to sum up the manner in
which conventions which are open to non-member States can be better
promoted in view of the fact that very few of these States have
so far acceded to these instruments. I further suggest indicating
how future conventions can be made more attractive to non-member
States.
30. In the draft recommendation, I suggest that the Assembly invite
the Committee of Ministers to take specific measures to include
non-member States in the life of the conventions they have acceded
to, notably with regard to financial matters, amendments and taking
part in implementation decisions.