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Doc. 8017

12 February 1998

Modification of the procedure for adoption of Council of Europe conventions

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Walter Schwimmer, Austria, Group of the European People's Party

Summary

      The structural reforms which will be carried out to adapt the Council of Europe to the changes that have taken place in recent years, should be the occasion for the Assembly to have included in the Statute what it has been requesting for many years: to be associated with the adoption of conventions and other international agreements adopted within the Organisation.

I.       Draft recommendation

1.       The Statute of the Council of Europe entrusts the Committee of Ministers with the task of concluding conventions and agreements either on its own initiative or on the recommendation of the Assembly. There are no provisions to the effect that draft conventions or agreements shall be submitted to the Assembly for approval prior to adoption.

2.       In its Recommendation 721 (1973) on the reference of European draft conventions to the Assembly before they are opened for signature by the Committee of Ministers, the Assembly recommended that the Committee of Ministers should consult it on any legal instruments of the Council of Europe and in particular on new draft European conventions, before approving them and opening them for signature by member states.

3.       In 1993, in its Recommendation 1212 on the adoption of a revised Statute of the Council of Europe, the Assembly, after recalling that it had the right of initiative in matters concerning conventions, recommended that the Committee of Ministers should submit all draft conventions, agreements and protocols to the Assembly for approval prior to adoption.

4.       In practice, the Assembly is consulted only on an ad hoc basis and often has to ask the Committee of Ministers to consult it.

5.       The Assembly believes that this situation is prejudicial to the ratification of conventions in the national parliaments, as the latter can only ratify or reject the convention which is submitted to them.

6.       The Assembly considers its co-decision in adopting texts of conventions as a fundamental right of a parliamentary body.

7.        Prior consultation of the Assembly serves to involve parliamentarians in the drawing up of texts and facilitates subsequent ratification at national level.

8.       The Assembly, referring to the Final Declaration of the Second Summit, adopted on 11 October 1997, in which the Heads of State and Government instruct the Committee of Ministers to carry out the necessary structural reforms, particularly in order to improve its decision-making process, recommends that the Committee of Ministers:

i.       adopt a statutory resolution to systematically submit all draft conventions, agreements and protocols to the Assembly for approval, prior to their adoption;

ii.       discuss the draft conventions, agreements and protocols in a joint working group in case of dissension;

iii.       include in the Statute the principle of co-decision in adopting conventions, agreements and protocols, as part of the structural reforms which are to be carried out in co-operation with the Assembly.

II.       Explanatory memorandum by Mr Schwimmer

1.       The signatories of the motion for the recommendation on modification of the procedure for the adoption of Council of Europe conventions (Doc. 7825), whose rapporteur had taken the initiative, considered that as the Second Summit of the Heads of State and Government of the Member States of the Council of Europe was approaching, the time had come to propose to the Committee of Ministers that a co-decision procedure should be introduced for the adoption of conventions, agreements and protocols.

2.       This is not, in fact, the first time in the history of the Council of Europe that such a request has been made by the Assembly to the Committee of Ministers.

3.       Recommendation 721 (1973) on the reference of European draft conventions to the Assembly before they are opened for signature by the Committee of Ministers already recommended that the Committee of Ministers should "consult the Assembly on any legal instruments of the Council of Europe, and in particular on new draft European conventions, before finally approving them and opening them for signature by member states". That recommendation constitutes Appendix I to this document.

4.       In its reply to that recommendation (Appendix II), the Committee of Ministers felt that the Assembly's participation in the work of the CCJ (now the CDCJ) entitled it "to express its views at a more suitable stage in the preparation of such drafts than the system of referring to its texts which have already been finalised — in most cases after complex and lengthy deliberations".

5.       However, a year earlier, in its reply to Recommendation 654 (1972) on the role of the Council of Europe in the field of penal law, the Committee of Ministers agreed "that, in future, conventions or agreements concluded in the field of penal law shall be transmitted to the Consultative Assembly for opinion". However, there was no follow-up to that agreement.

6.       The argument set out in the reply to Recommendation 721 (1973) was put forward recently concerning the adoption of the draft convention for the protection of human rights and dignity of the human being with regard to the application of biology and medicine (Convention on Human Rights and Biomedicine). As the rapporteur of the Committee on Science and Technology, which had been requested to report, had actively participated in the work of the Committee of Experts (CDBI) responsible for preparing the draft convention, it was considered that consultation with the Assembly was superfluous and likely to delay the adoption of the convention. This argument, that consultation with the Assembly delays the adoption of a convention by the Committee of Ministers, is moreover often put forward.

7.       These arguments are not acceptable. It cannot be claimed that a single parliamentarian, however qualified, is in a position to express the opinion of the entire Assembly. A text as controversial and sensitive as the draft convention on human rights and biomedicine was the subject of no fewer than three plenary debates in the Parliamentary Assembly, in addition to the hearings and meetings of the committees concerned. The large number of speakers, the diversity of their contributions, and the negotiations which have preceded the adoption of texts by the Assembly perfectly illustrate the need to provide as many parliamentarians as possible with the opportunity of speaking on a draft convention before the Assembly formally adopts an opinion.

8.       A first debate on this draft convention, which ended with a reference to committee, took place in October 1994. A second debate was held in February 1995 and led to the adoption of Opinion No. 184 (1995) on the draft convention, recommending "that the Committee of Ministers review thoroughly the text of the draft bioethics convention ..." and setting out a list of amendments. The participation of representatives of the committees involved with the work of the CDBI provided fuel for debates, but it was only after these debates that the Assembly was able to make an informed request for changes to be made to the text.

9.       The opinion ended with the Assembly recommending that the Committee of Ministers transmit the final revised text of the draft convention to the Parliamentary Assembly for its final opinion. This was done and the Assembly devoted a third debate to the draft convention in September 1996. Two years therefore passed between the first debate and the adoption of a definitive opinion by the Assembly. The Committee of Ministers did not, however, accept all the amendments proposed by the Assembly.

10.       Who today would dream of protesting that too much time was spent in drawing up a text which was acceptable to as many member states as possible, and which hurt as few feelings as possible? By 1 September 1997, that is less than six months after it had been opened for signature, there had been 22 signatures to the convention, which seems to confirm the usefulness of consultation.

11.       It is especially when a text is controversial and deals with sensitive issues that the Assembly must be consulted. What is the use of adopting international conventions which do not subsequently enter into force because they have not received a sufficient number of ratifications? Consultation with the Assembly therefore guarantees that a text will be accepted more readily by national parliaments because the parliamentarians will have been associated with it before it is adopted. Consultation of the Assembly must, therefore, rather be considered as preliminary step to ratification by national parliaments since, as stated in Recommendation 721 (1973):

      "National parliaments, which must approve a European convention before its ratification may take place, can only approve or reject the convention and have no power to amend it".

12.       Regardless of the contents of the convention, the political aspect must also be taken into account. Of course, consultation in itself is not sufficient if the Assembly's proposals are not taken into consideration. This is why the motion for a recommendation refers to a "co-decision process".

13.       Twenty years after the adoption of Recommendation 721 (1973), the Parliamentary Assembly once again took a stand on this issue in its Recommendation 1212 (1993) on the adoption of a revised statute of the Council of Europe:

      "The Parliamentary Assembly has a right of initiative in respect of conventions. The Committee of Ministers shall submit to it all draft conventions, agreements and protocols for approval prior to adoption. If necessary, the Secretary General shall report on the implementation of these treaties to the Assembly which, in the event of non-compliance, shall address recommendations to governments to the Committee of Ministers for the purpose of remedying this. If the Assembly's recommendations are not accepted, the Committee of Ministers shall give a reasoned reply".

14.       The Committee of Ministers has not yet stated its position on the subject. This is why the Assembly is devoting a new report to this issue.

15.       The Assembly may not wish to give an opinion on all conventions before they are adopted, but it must be free to choose whether to do so or not.

16.       The fact that in many cases the Assembly takes the initiative of recommending that the Committee of Ministers adopt a convention or an additional protocol works in favour of consultation, as it shows that the Assembly is aware of the problems facing European societies.

17.       But as we have already pointed out, the motion for a recommendation requests that the Assembly be both more than merely consulted, as called for in Recommendation 1212, since it requests a co-decision process, and less, since it does not envisage any control over implementation. The form of this co-decision process has yet to be defined.

18.       The process of co-decision means that the Assembly and the Committee of Ministers must agree on the substance of a text and, consequently, that the Committee of Ministers must fully accept the Assembly's opinion. In the context of the structural reforms which will be carried out in order to accommodate the Council of Europe's new responsibilities and the tasks entrusted to it by the Second Summit of Heads and State and Government, the Assembly must ensure that the principle of co-decision is included in the Statute of the Organisation.

19.       Accordingly, for all the reasons given above, the Assembly should recommend that the Committee of Ministers:

i.       in the immediate future, submit all draft conventions, agreements or protocols to the Assembly for opinion and undertake not to adopt them without having first received the opinion of the Assembly;

ii.       in the context of the structural reforms to be carried out in co-operation with the Parliamentary Assembly, include in the Statute the principle of co-decision in adopting conventions, agreements and protocols.

Appendix I

Appendix II

Reporting committee: Committee on Legal Affairs and Human Rights

Budgetary implications for the Assembly: none

Reference to committee: Doc 7825, Reference No 2191 of 28 May 1997

Draft recommendation adopted unanimously by the committee on 29 January 1998

Members of the committee: MM Hagård (Chairperson), Schwimmer, Bindig, Jansson (Vice-Chairpersons), Mrs Aguiar, MM Ahlmann-Ohlsen, Akçali, Arzilli, Bartumeu Cassany, Besostri, Bulic, Clerfayt, Columberg, Contestabile, Dees, Demetriou, Mrs Dumont, Mr Enright, Mrs Err, MM Fogaš, Forni, Mrs Frimansdóttir, MM Frunda, Fuhrmann, Fyodorov, Mrs Gelderblom-Lankhout, Ms Jäätteenmäki, MM Jaskiernia, Jeambrun, Kelam, Lord Kirkhill (alternate: Ms Cryer), MM Kostytsky, Krzyzanowska, Loutfi, Magnusson, de Marco, Martins, Marty, McNamara, Mészáros, Micheloyiannis, Mozetic, Nastase, Németh, Pantelejevs, Pavlov, Mrs Plechatá, Mrs Pobedinskaya, MM Pollo, Polydoras, Poppe, Robles Fraga (alternate: Lopez Henares), Rodeghiero, Simonsen, Solé Tura, Staciokas, Lord Steel, MM Sungur, Symonenko, Tahiri, Vishnyakov, Vyvadil, Weyts, Wittmann, Mrs Wohlwend.

N.B. The names of those members who took part in the vote are printed in italics.

Secretaries to the committee: Mr Plate, Ms Coin and Ms Kleinsorge