Council of Europe (Institutional Aspects)
The Council of Europe (CoE), founded in 1949, is a regional international organization. Its headquarters are located in Strasbourg, France. It has to be distinguished from the European Council and the (EU) Council (Council and the European Council), both of which are mere organs, not corporate entities. Moreover, they pertain to an organization—the European Union—whose legal basis is completely independent and whose membership differs from that of the CoE. Yet, both have features in common which go beyond the common use of a (star-spangled) flag. Membership, for example, is reserved to European states and requires respect for the rule of law and basic human rights (Arts 3, 4 CoE Statute; Art 49 in conjunction with Art 2 TEU/Art 49 in conjunction with Art 6 EU) as well as democracy, even if the CoE Statute does not explicitly mention this last item as a prerequisite for membership.
Since 1993, the CoE and the European Commission have been setting up so-called Joint Programmes focusing on the promotion of democracy in the states of eastern and southeast Europe as well as their legal and political integration. As for individual rights, a functional link between both entities was set up by the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (human rights and fundamental rights (ChFR and ECHR)). Emanating from the CoE, which in 1950 had elaborated this human rights charter as a common standard for its members, the convention was explicitly referred to by Art 6(2) EU as a source of fundamental rights within EU. This referral has lost in importance to the extent that the EU succeeded in attaching binding force to its own human rights catalogue (see Art 6(1) TEU). By way of contrast, Art 6(2) TEU does now permit for the EU to become a party to the ECHR, which for formal reasons had previously been held to be impossible by the ECJ. As a consequence, it is likely that the European Court of Human Rights (ECtHR) will be empowered to directly review EU acts for possible human rights infractions, with the result being unpredictable implications for the distribution of judicial power between it and the European Court of Justice (ECJ).
The founding of the CoE can be directly attributed to the lessons learnt from World War II. According to Art 1(a) CoE Statute, its aim 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’. Yet, the CoE Statute fails to give a precise description of its tasks. Considering the broad range of topics the CoE may deal with pursuant to Art 1(b) CoE Statute, hardly any matter except for those relating to national defence, which are explicitly excluded (Art 1(d) CoE Statute), falls short of its competence.
The Committee of Ministers of the CoE may invite European states complying with the criteria set out in Art 3 to become members of the organization; hence strictu sensu there is no application for membership. In 2008, all sovereign European States except for Belarus and the Vatican State (and Kosovo) were members of the CoE. The same is true of Turkey and the three trans-caucasian states of Armenia, Azerbaijan and Georgia, which in geographical terms do not form part of Europe. Several non-European states, including overseas nations such as the United States or Japan, were granted observer status to the Parliamentary Assembly or the Committee of Ministers.
There are three central functions of the CoE, as described by Art 1(b) CoE Statute: discussion of questions of common concern; agreements on the matters enumerated therein; and common action in these fields (ie social, cultural, scientific, legal and administrative matters including the rule of law, human rights and fundamental freedoms). It is obvious that the last two functions largely overlap. The wording of Art 1(b) CoE Statute is misleading insofar as the CoE has no competence for concluding proper agreements as a party but may only work out draft treaties—just like the International Law Commission does—and submit them to its member states for ratification. Also, a number of legal instruments created upon the CoE’s initiative (such as the European Social Charter; see its Arts A.2., D.2., F.2., J.1.) extend the power of the CoE. As of now, it has initiated more than 200 treaties covering a vast range of subjects (Council of Europe (harmonization of private law)). These agreements are usually open for ratification to the Council’s member states only, although some of them also address non-members and sometimes even non-European states. Even member states are under no obligation to ratify, although ratification of the ECHR is a de facto prerequisite for becoming a CoE member.
There are only two organs mentioned in the CoE Statute: the Committee of Ministers and the Parliamentary Assembly (Art 10). The Secretariat ‘serving’ these two bodies does not formally count as an organ, although it might actually be considered as such. Other—merely consultative—institutions, such as the Congress of Local and Regional Authorities, have been created upon decisions of the Committee of Ministers (Arts 15(a), 16 CoE Statute). The European Court of Human Rights (ECtHR), whose task consists of watching over member states’ compliance with the ECHR, is closely attached to the CoE without, however, being a structural element of it. Unlike the EU, the CoE does not represent interests that may collide with those of its members; rather, it only represents interests common to all member states. This is why no clear distinction can be made between its organs as to whether they primarily stand for member states’ or common interests.
a) Statutory bodies
The three-tiered structure of the CoE follows a familiar pattern in international organizations: an organ representing member states’ governments (Committee of Ministers), one representing national parliaments (Advisory/Parliamentary Committee) and finally an executive body (Secretariat). The Committee of Ministers (Arts 10, 13 ff CoE Statute), where every member state has one representative, corresponds to its (literal) name only once a year (‘session’), when the ministers of foreign affairs or other members of the national cabinets gather. At other times Permanent Representatives, who meet once a week, are deputized by the ministers (‘Meetings of the Ministers’ Deputies’).
Decision-making by the Committee of Ministers is governed by the principle ‘one state, one vote’ and, as typical for public international law, requires a unanimous vote where the matter is an ‘important’ one (for details, see Art 20(a) of the Statute). Decisions on other matters must be backed by a qualified majority of two-thirds of the representatives casting a vote and at the same time a majority of the representatives entitled to sit on the Committee (Art 20(d)). Exempted are questions relating to rules of procedure or financial and administrative regulations, where a simple majority is sufficient (Art 20(b) CoE Statute), and invitations to become a member or associate member of the Council, requiring a two-thirds majority of the representatives entitled to sit on the Committee (Arts 20(c), 4, 5 CoE Statute).
The rather high hurdle to be overcome for even addressing decisions to member states, qualified as important matters by Art 20(a) CoE Statute, is surprising, considering that they only have a non-binding, advisory effect (Art 15(b) CoE Statute). However, this rule is not without exceptions, the most prominent one being Art 8 CoE Statute, which upon serious violations of the principles enshrined in Art 3 confers the Committee of Ministers a right to terminate a state’s membership in the CoE. Likewise, decisions of the Committee on internal organization as well as (financial and administrative) arrangements including budgetary matters are also binding.
A focus of the Committee’s activities is the drafting of treaties, only vaguely mentioned in Art 15(a) CoE Statute (‘conclusion of conventions or agreements’) and accomplished with a qualified majority as defined in Art 20(d) CoE Statute. This is how the CoE contributes to the evolution and harmonization of the law in its manifold areas of competence. Most important are the completion and extension of the CoE’s human rights protection system, which embodies the submission of additional protocols to the ECHR for adoption by its member states.
Although the Consultative Assembly (Arts 22 ff CoE Statute) chose to dub itself Parliamentary Assembly in 1994 and is split into parties, it has little in common with its member states’ legislative bodies. It consists of nationals of the CoE’s member states elected or nominated by their respective parliaments pursuant to a (pondered) key as set out in Arts 25(a), 26 CoE Statute. The CoE Statute does not provide for details and largely leaves the proceedings to the discretion of the members. Article 32 CoE Statute only requires that the Parliamentary Assembly gather a minimum of one time a year for ordinary sessions (Arts 28(a), 32 CoE Statute), thereby reducing the likelihood of infringing upon the schedule of member states’ parliaments, which Assembly members also sit on. Nevertheless, extraordinary sessions may be convened if required. The Assembly, which is mainly a forum for discussion and a review body, also gives the Committee of Ministers impulses for future treaties; it thus initiated, inter alia, the European Human Rights Convention. It serves as a connecting link between the CoE and national parliaments but has in recent years also positioned itself as a platform for the political integration of the new member states from central and eastern Europe. The Assembly elects the Secretary General and the Deputy Secretary General, as is shown below.
The Secretariat (Art 36 CoE Statute) is composed of the General Secretary and a Deputy Secretary General, both appointed by the Parliamentary Assembly upon recommendation of the Committee of Ministers, as well as other staff to be appointed by the Secretary General. The Secretariat assumes its functions, for the most part coordination and executive tasks, under the supervision of the Committee of Ministers, to which it is responsible (Art 37(b) CoE Statute). It is charged with the external representation of the CoE. Article 36(e) CoE requires its staff to solemnly declare their fidelity to the organization and their resistance to any attempt (from national governments, in the first place) to give instructions or otherwise exert influence.
b) Other institutions
Several other institutions, many of which are without a clearly defined status, are attached to the CoE. The European Court of Human Rights, whose legal basis is the 1950 Human Rights Convention, is not an integral part of the CoE but has strong ties to it. Most of the other institutions are ‘secondary bodies’, as may be created by the Committee of Ministers pursuant to Arts 15(a), 16 CoE Statute. This is true, for instance, of the Congress of Local and Regional Authorities, established in 1994 as a successor to the Conference of Local Authorities of Europe (1957) as an all-European forum for municipal and regional self-government. The Congress coordinates municipal policies and gives advice to the Committee of Ministers and the Parliamentary Assembly. A Commissioner for Human Rights, who is endowed with procedural rights before the ECtHR (ECHR Additional Protocol no 14), has been active since 1997. In order to promote cooperation with international non-governmental organizations (referred to as INGOs in CoE parlance), an INGO Liaison Committee for these organizations, united within the Conference of INGOs of the Council of Europe, was established in 1976.
The European Movement (ed), European Movement and The Council of Europe (1949); AH Robertson, The Council of Europe—Its Structure, Functions and Achievements (2nd edn, 1961); AH Robertson, The Relations between the Council of Europe and the United Nations (1972); Koen Lenaerts, ‘Some Reflections on the Separation of Powers in the European Community’ (1991) CMLR; Koen Lenaerts, ‘Regulating the Regulatory Process: Delegation of Powers in the European Community’ (1993) E L Rev 23; Martin Westlake and David Galloway, The Council of the European Union (2004); Fiona Hayes-Renshaw and Helen Wallace, The Council of Ministers (2006); Heide Wedemeyer, Mehrheitsbeschlussfassung im Rat der Europäischen Union: rechtliche Grundlagen, praktische Umsetzung und ihre Folgen für die Vertretung nationaler Interessen (2008).