Doc. 8202

21 September 1998

General policy: Council of Europe and OSCE

Opinion1

Committee on Legal Affairs and Human Rights

Rapporteur: Mrs Hanneke Gelderblom-Lankhout, Netherlands, Liberal, Democratic and Reformers' Group

A.        Introduction

1.        The Political Affairs Committee is laying before the Assembly a report on "General policy: Council of Europe and OSCE", which is to be discussed at the September 1998 part-session. As the subject matter under consideration concerns human rights to a large extent a written contribution of the Committee on Legal Affairs and Human Rights seems to be appropriate.

2.        The OSCE is a most useful organisation for Europe in the area for which it was conceived, namely disarmament, preventive diplomacy, conflict prevention and intervention in situations of violent conflicts.

B.        Human rights

3.        The protection of fundamental human rights and freedoms is certainly at the heart of both the Council of Europe and the OSCE and the main observations of the Assembly's Committee on Legal Affairs and Human Rights should therefore be made in relation to this subject.

4.        At its meeting in Strasbourg on 23 April 1998, the Committee had the privilege of hearing a most important statement by Mrs Gret Haller and having a very interesting exchange of views with her.

5.        Mrs Haller has now held for some three years the post of Human Rights Ombudsperson in Bosnia and Herzegovina and lives in Sarajevo. Although she was appointed by OSCE her terms of reference lie almost entirely within the Council of Europe's field of work. She therefore finds herself somewhere between the OSCE and the Council of Europe. She also had previous experience in both Organisations, first as a parliamentarian when she was a member of the Parliamentary Assembly and of our Committee, but also a member of the OSCE's Assembly. Later, before taking office in Sarajevo, she was the Permanent Representative of Switzerland to the Council of Europe. I am therefore quoting or using in the paragraphs below statements she made before the Committee on Legal Affairs and Human Rights at its meeting on 23 April 19982 to which I subscribe.

6.        The Council of Europe's member states are exclusively European, whereas OSCE member states include not only European states, but also central Asian countries, Canada and the United States.

7.        This difference in membership is of crucial importance in the area of human rights, because Europe and the United States have a very different human rights tradition.

8.        For the United States, there can be no question of placing its own actions in the area of human rights under international jurisdiction. The United States has not recognised any international legal protection machinery. It intends to keep human rights subject to political pressure. This is by no means a point of criticism, but simply a fact.

9.        As a sovereign state, the United States has the political and moral right to decide its own opinion in this regard.

10.        This is not the European position, however, because unlike the United States, Europe has placed legal limits on political room for manoeuvre - and hence on governments - and has created international monitoring machinery which has become vital to the European understanding of human rights.

11.        Europe has learned through painful experience that democracy alone does not guarantee human dignity. Even dictators sometimes come to power by perfectly democratic means before setting out to dismantle democracy. This is why in Europe human rights are closely associated with the rule of law and international obligations, from which the requirement of democracy emanates.

12.        In contrast, the United States proceeds from the notion that democracy in itself is the guarantee of human dignity. Thus, human rights are bound up above all with democracy, the safeguarding of which is regarded in American culture as primarily a question of political pressure.

13.        This transatlantic dissimilarity can be seen in the attitude towards the death penalty. If the American people, by entirely democratic means, calls for the death penalty, then the death penalty exists, and that's that. Not so in Europe: the ECHR contains the obligation to abolish the death penalty, where it still exists. If a Council of Europe member State wanted to reintroduce capital punishment, this would eventually raise the question of its exclusion from the Organisation.

14.        In the ideals to which they aspire, neither the Council of Europe nor the OSCE can go beyond the lowest common denominator of all their member states. For the Council of Europe, this is defined by the ECHR. In contrast, the OSCE, with its transatlantic ties, cannot defend the concept of an individual judicial petition, much less the notion of protection machinery leading to internationally binding court decisions. The fact of the matter is that in their human rights policies, the Council of Europe and the OSCE have a differing approach – which is inevitable, since they are not made up of the same countries.

15.        Another example is illustrated by the fact that in the terms of reference of the Commissioner for Media Freedom, the OSCE makes no mention of the ECHR.

16.        As regards the field of action of the two organisations, it is certain that there are overlaps, but the emphasis of the two organisations is different. Conflict situations are a matter for the OSCE, which, it goes without saying, also deals in such cases with human rights. In conflict situations – and here I have in mind violent conflicts and their prevention – the Council of Europe plays a completely different role as it maintains contacts with members of parliament – including the opposition – in the region.

17.        The Council of Europe must take action in all cases concerning the development of state institutions and the spreading of the idea of human rights, and it must do so without OSCE involvement. In view of its transatlantic ties, the OSCE is not in a position to represent the European approach, which invariably gives precedence to human rights over democracy and calls for internationally binding judicial protection. The OSCE should not attempt to intervene in this area: given its structure, it simply cannot represent European standards.

18.        If the Council of Europe and the OSCE join forces in the area of human rights, the European approach will sooner or later fall by the wayside. The reason for this is quite simple: the lowest common denominator between the Council of Europe and the OSCE in the area of human rights is the level of the OSCE. If such co-operation takes place, human rights will never be given precedence over democracy, nor will the two organisations uncompromisingly defend internationally binding judicial protection. In such a situation, the representatives of the Council of Europe will be forced to help promote a purely political implementation of human rights which, strictly speaking, would betray the position which the Council of Europe has championed for nearly 50 years.

19.        This is neither a pro-American nor an anti-American position. It has nothing to do with it. As far as Bosnia and Herzegovina is concerned, I have great admiration for the United States. Without America's large-scale and no doubt selfless intervention, it would not have been possible to put an end to the terrible war going on at the time.

20.        Many argue today that the Council of Europe must become more political. That is absolutely right, but cannot mean that it should cast the legal framework of human rights protection overboard and just promote the purely political implementation of human rights. For the Council of Europe, becoming more political means standing up politically for human rights protection by giving it precedence over democracy and safeguarding it through internationally binding machinery.

21.        Needless to say, the Council of Europe can also take direct political action in favour of human rights, but in doing so it must always make it clear that this is only a first step towards legal protection.

22.        Monitoring has an important role to play in this context.

C.        The Council of Europe's mission

23.        It may be recalled that, in accordance with Article 1 of the Statute of the Council of Europe, the aim of our Organisation 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. This aim shall be pursued through the organs of the Council by discussion of questions of common concern and by agreements and common action in economic, social, cultural, scientific, legal and administrative matters and in the maintenance and further realisation of human rights and fundamental freedoms.

24.        Nowadays the protection of fundamental rights and freedoms is certainly the hard core of the Organisation and forms the major part of its mission, especially after the new single Court of Human Rights enters into force.

25.        Human Rights are certainly also one of the main assignments of OSCE but the way and means given to each of the organisations are different.

26.        The approach of OSCE must be considered as mainly political and governmental, whereas the structures of the Council of Europe are both legal and political. In addition, through its Convention on Human Rights and its Protocols, but also through other conventions, such as the European Social Charter and the Anti-Torture Convention, the Council of Europe has created an effective legal framework for the protection of human rights at European level.

27.        For the Council of Europe, the European Convention on Human Rights, with its solid body of case-law, forms an extremely solid point of reference.

28.        The OSCE, when looking for reference in the human rights field, must look to the Universal Declaration of Human Rights or to the two United Nations covenants on human rights, which, however, have not been ratified by the USA. Yet the OSCE is strongly influenced by the American concept of human rights, which tends to be subordinated to the democratic will of the people – as was clearly shown with the reintroduction of the death penalty in the USA.

D.        Further differences between the Council of Europe and OSCE and cooperation between the two organisations

29.        An important difference is the structure of the two organisations. The Council of Europe has a single secretariat of 1200 international civil servants, the large majority of whom have a permanent contract with the organisation.

30.        The OSCE has some staff of its own but the majority of its personnel come from national diplomatic and civil services and has been seconded for a few years by national governments and is still on their pay roll.

31.        The OSCE may be considered as a prolongation of the governments. It speaks the voice of its ministers of foreign affairs. So not surprisingly, but logically, it is for this reason that governments tend to rely more and more on the OSCE. As a result, it is often easier for the OSCE to obtain publicity and seemingly more tangible results than it is for the Council of Europe.

32.        Another difference is the political nature of the organisations. The two organs of the Council of Europe, the Committee of Ministers and the Parliamentary Assembly, are both clearly political, but the Committee of Ministers of the Council of Europe has often been timid in exercising its political role and functions.

33.        Frequent ministerial contacts as established in the 15 countries of the EU no longer exist in the Committee of Ministers of the 40 countries of the Council of Europe.

34.        Our Parliamentary Assembly, which consists not only of parliamentarians of the parties in government but also of the opposition, makes freer use of the political possibilities available to it, yet seems to be less courageous in its resolutions and recommendations than it was in the past.

35.        When talking about cooperation our Assembly should in the first place think of its cooperation with the OSCE Parliamentary Assembly. At its last plenary session in Copenhagen on 6-8 July 1998, the OSCE Parliamentary Assembly treated many of the same topics that are being discussed by our own Assembly. There is therefore much overlap. On the other hand, there are many members of parliament who are members of both assemblies. Mrs Dehn, who is the Chairperson of the Committee on Economic Affairs and Development, was even elected as President of the OSCE Assembly. This would mean that this kind of cooperation would be desirable without being too difficult. A suggestion which I would like to make in this respect is that our Assembly, at its annual June part-session, systematically deals with all items to be discussed at the OSCE session which is likely to take place one or two weeks later in order to coordinate the work of both Assemblies.

E.        Election observation

36.        As a general rule, the Parliamentary Assembly of the Council of Europe observes parliamentary and presidential elections in applicant States and in member States that are being monitored. The Council of Europe's Congress of Local and Regional Authorities may observe local elections. When the Parliamentary Assembly observes elections it normally sends a delegation of no more than twenty members of the Assembly who stay in the country concerned for about four days, whereas the OSCE, for example in the case of the elections in Montenegro on 30 May 1998, sent 21 core-staff and long-term observers from its Office for Democratic Institutions and Human Rights (ODIHR) and 117 short-term observers, including 28 members from the OSCE Parliamentary Assembly.

37.        There was a similar situation during the elections in Bosnia and Herzegovina on 12 and 13 September 1998 where I participated as the Rapporteur of the Committee on Legal Affairs and Human Rights and one of the observers of our Assembly. It is clear that our observers had a role which was completely different from those of the many observers from OSCE.

38.        In this respect I should add that OSCE, also through its ODIHR Office, is involved in the organisation of the elections.

39.        It becomes more and more clear that it is difficult to be the organiser and the controller at the same time.

40.        My impression is that OSCE is concentrating on the technical aspects of the election, such as possibilities for fraud, correct counting, etc., whereas for the observers of our Assembly the objective is wider in that they also look at those aspects which are of importance for a country's accession to the Council of Europe or to monitor the obligations which the country freely accepted upon accession. We therefore spend much time looking into such questions as the freedom of the media and the rights of the opposition and should not be prevented from doing so.

F.        Conclusions

41.        On concluding this paper I would like to make a few general remarks and suggestions.

42.        Firstly there should not be a strict delineation or division of labour – this would in any case be contrary to the Statute of the Council of Europe and possibly also at variance with the basic texts of the OSCE. Both organisations will therefore continue to deal with the situation of human rights and fundamental freedoms in their member and applicant States and there is a danger of overlap or competition. This is, however, something one should avoid as much as possible because any overlap and competition will be at the expense of our taxpayers and in the end be counterproductive to the cause of the protection of human rights.

43.        There should be as much cooperation as possible, but it should be on an ad hoc basis and on the basis of equality and recognition of the difference between the two organisations. Neither of the two organisations should consider itself superior or better qualified for whatever reason it might invoke.

44.        I do not believe there should be detailed agreements on the manner of cooperation. There could be some guidelines, but that should be all. One should never forget that the Council of Europe is not a monolithic organisation. Its pluralism is one of its great assets. No agreement should therefore limit the autonomy of the Committee of Ministers, of the Secretary General, of the Court of Human Rights, of the Congress of Regional and Local Authorities, of our Assembly or, indeed, of its committees, which also have a certain autonomy and independence within the limits of their competence and the Assembly's Rules of Procedure. Every committee must decide for itself what appropriate action it might take and the Assembly's Bureau should of course play its role of coordination.

45.        As far as the Committee on Legal Affairs and Human Rights is concerned, one might envisage holding a meeting of the Sub-Committee on Human Rights in Warsaw to establish contacts with the OSCE Office for Democratic Institutions and Human Rights (ODIHR), which has its seat there. With a Polish Chairperson of the Sub-Committee on Human Rights and the 1998 ticket for a sub-committee meeting abroad still unused, this may not pose too great a problem. However, one might start by inviting Mr Gérard Stoudmann, Director of ODIHR, to a forthcoming meeting of the Committee on Legal Affairs and Human Rights or of the Sub-Committee on Human Rights.

46.        The next suggestion I would make is the following. I mentioned already that the Council of Europe's human rights standards are solidly anchored in the Human Rights Convention. However, in some cases this may not be enough and one may wish to consider what further standards and values may be considered as those of the Council of Europe as a whole and of the Parliamentary Assembly of the Council of Europe in particular. I would therefore be in favour of a publication in which a selection of the main reference texts in the field of human rights and fundamental freedoms would be published. Such a publication would include, of course, the Council of Europe's main Conventions in the field, in particular the Human Rights Convention and its protocols and the Social Charter, in addition to the most important recommendations and resolutions of the Committee of Ministers and the most important texts of the Assembly. Among the Assembly's texts one could think of Resolution 337 (1967) on the right to conscientious objection, Resolution 690 (1979) on a declaration on the police and Recommendation 1201 (1993) containing a draft protocol on the rights of minorities to the European Convention on Human Rights. Such a publication would make the values of the Council of Europe more tangible and more accessible to the public at large.

47.        The Council of Europe has grown rapidly in the last decade, not only in membership but also in staff. However, standard-setting activities in the Council of Europe have become less numerous. There may be two main reasons for this, the first one being that, in the field of standard setting, the Council of Europe may have reached most of its aims and possibilities, beyond which it is much more difficult, if not impossible, to act. The second reason could be that it is much more difficult to find consensus among 40 member States than it is among a handful of like-minded States and that many of the new member States will first want to adapt to the present situation and ratify the existing Council of Europe Conventions before going ahead with new activities.

48.        The promotion of democracy, human rights and the rule of law is a never-ending process! Many of the staff in the operational directorates (human rights, legal affairs, political affairs, culture, education, etc.) are now active in a great number of different kinds of assistance programmes.

49.        The monitoring of the new and old member States of the Council of Europe has become one of the main activities of the Assembly and, indeed, of the whole of the Organisation. Yet in our Assembly those committees which are dealing with the monitoring, such as the Political Affairs Committee, the Committee on Legal Affairs and Human Rights, the Committee on Migration, Refugees and Demography and, of course, the Monitoring Committee itself, are badly in need of more staff to accomplish their ever-growing work and it would be necessary for them to get this reinforcement as soon as possible. In a situation of 0% growth, in which the Council of Europe now finds itself, this might mean a certain reallocation of staff from some of the directorates of the Council of Europe to the Office of the Clerk.

50.        Structural changes and improvements are certainly necessary in the Council of Europe in the near future and one may hope that the Committee of Wise Persons will provide some concrete solutions in this respect. It would be useful if the Council of Europe were to update and distribute an organisational charge such as the one in respect of OSCE which Mr Schieder has appended to his report. For the Council of Europe the improvement of its own structures and working methods may perhaps be more important than making special structures for cooperation with OSCE, which – as this paper maintains – should mainly be on a ad hoc basis.

51.        Finally, I would stress that cooperation with OSCE is most important, but that, at the same time, our Assembly should not forget to investigate possibilities of cooperation with the European Parliament which is increasingly active in the fields which are at present covered by the Council of Europe and OSCE.

52.        Therefore, this report is proposing a few amendments to the draft recommendation submitted by the Political Affairs Committee in Doc 8187, as well as a draft order, which would enable the competent committees to continue their work on relations with OSCE.

Amendments tabled to the draft recommendation included in Doc 8187

Amendment a)

In paragraph 2, delete the words "to this close functional and geographical proximity and shared objectives".

Amendment b)

In paragraph 3, replace the words "in achieving their shared", by "although sharing many of their".

Amendment c)

Add, at the end of paragraph 8, the following words: "with due reference to the work done by our organisation".

Amendment d)

Add, at the beginning of paragraph 13, a new sub-paragraph worded as follows:

Amendment e)

In paragraph 13.ii.c, delete the words "in particular through greater participation of Council of Europe experts in OSCE field missions".

APPENDIX

Letter dated 17 July 1998 from the President of the Assembly

to the Chairpersons of National Delegations

I would like to inform you that on 1 July the Committee of Ministers fixed the Council of Europe budgetary ceiling for 1999 at 1,034.4 million FF, i.e. far below the Secretary General’s proposal (1,062 million FF). The sum decided upon represents the current budget of the Organisation plus 11 million FF for inflation and 9 million FF for the new Court of Human Rights.

Reporting committee: Political Affairs Committee

Committee for opinion: Committee on Legal Affairs and Human Rights

Reference to committee: general policy report (Rule 16, paragraph 3 of the Rules of Procedure of the Assembly)

Opinion approved by the committee on 21 September 1998

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


1 See Doc. 8187.

2 See also the working document she submitted to the Committee, dated 8 July 1998 (AS/Jur (1998) 32 rev 2).