Painful Relations between the Council of Europe and Russia

Written by and

During the forthcoming October part-session of the Parliamentary Assembly of the Council of Europe (PACE), it will vote on amending its rules of procedure. Normally such technical changes do not attract much public interest but this vote certainly will. Due to inappropriate pressure, considered by many as blackmail, the Russian (parliamentary) authorities have suggested that the Assembly’s rules ought not to permit the exclusion of national delegations from the Assembly. In other words, the Assembly should take away from itself its ultimate sanction, namely excluding a parliamentary delegation of the state that refuses to comply with Council of Europe’s fundamental values: human rights, the rule of law and pluralistic democracy. This can only be done once attempts to admonish or reprimand a state which breaches the rules of the democratic club have failed.

That said, the Committee of Ministers, the other statutory body of the Council of Europe, can suspend or expel a state which seriously violates the club’s rules. Expulsion is however a politically complex exercise. Article 8 of the Organisation’s Statute specifies that if a member state seriously violates founding principles of the rule of law and human rights, the Committee of Ministers can so decide. This decision necessitates a two-thirds majority of representatives casting a vote and a majority of representatives entitled to sit on the Committee (see, on this subject, E.Klein “Membership and observer status” in The Council of Europe. Its Law and Policies (2017, OUP, edited by S.Schmahl and M.Breuer, esp. paras 3.54 – 3.77). In so far as the Assembly is concerned, suspension from the right of representation therein is governed by its Rules of Procedure, Rules 8 and 9, based on its capacity to “adopt its Rules of Procedure,” (Article 28 (a) of the Statute), the legal validity of which has not been opposed by any member state (except Russia, recently) nor the Committee of Minister; the application of these rules has become a recognised practice (Klein, para 3.72).

The most recent tension between Russia and PACE started when, as a reaction to the crisis in Ukraine, PACE suspended certain rights of the members of the Russian parliamentary delegation, including the right to vote in 2014 and 2015. The Russian delegation was not, however, expelled from the PACE. Its parliamentarians’ credentials were not revoked and members of the delegation could still participate in certain areas of the Assembly’s work.

Pursuant to its internal procedures, PACE must proceed to ratify credentials of delegations each January. Since Russia failed to comply with PACE resolutions, (1990 (2014), 2034 (2015) & 2063 (2015)) there was a strong probability PACE would not ratify the credentials of the Russian delegation in 2016. It is generally accepted that in order to avoid this potential humiliation, the Russian parliament decided not to submit credentials for ratification in 2016, ditto in 2017 and in 2018. Hence, Russian parliamentarians have not participated in PACE’s work since 2016 (they actually ‘walked out’ after sanctions were applied so, although formally accredited up to 2016, they didn’t ‘participate’ since an earlier date). 

In 2017 Russia failed to pay two-thirds of its contribution to the ordinary budget of the Council of Europe; the contribution of €33 million (€22 + € 11), due in February of this year was not paid. The Russian authorities have indicated that the full amount owed to the Organisation would be paid when the above-mentioned ‘demand’ is complied with. When making this ‘demand’ Russia conveniently forgets to mention the country’s non-compliance with commitments undertaken when joining the Council of Europe, as pointed out in the Assembly’s resolutions referred to above.

The Russian Foreign Minister, Lavrov, has suggested that as Russian parliamentarians have not participated in the election of many judges to the Strasbourg Court, the Court’s authority can be put into question. This argument has no legal basis under the ECHR. Also, surely it cannot be correct to argue that if an MP chooses not to vote, or is deprived of so doing, when the Assembly elects judges to the Strasbourg Court or elects a Secretary General, that that MP’s state would no longer be bound by the rulings of the Court or could question the legitimacy of the election of a Secretary General. Lavrov’s argument is both logically and legally flawed.

Finally, there looms the possibility of Russian withdrawal from the Organisation which would result in the country no longer being bound by the ECHR. Hundreds of thousands of individuals would be deprived of the possibility of bringing application before the Strasbourg Court. However, the Assembly, and indeed the Organisation itself, cannot simply comply with the (exaggerated) ‘demands’ of one member state. There are red lines that cannot be crossed.

The draft resolution adopted by the Assembly’s ‘Rules Committee’ on 20 September 2018 merits serious consideration in the light of what has been written above. It provides, without express mention of Russian so-called concerns, a substantial ‘accommodation’ to what the Russian side has sought to obtain. It is in effect a compromise being put forward in good faith to a member state whose parliamentarians have excluded themselves from ‘political dialogue’ offered to them (PACE Resolution 1990(2014), para 14) Although PACE would keep the ‘credentials procedure’ in place, the change of rules would make revocation of credentials very difficult, requiring one sixth of PACE members to initiate this procedure (effectively increasing the number from 30 to 54). Moreover, the qualified majority of two-thirds of the votes would be required in order to reject credentials. Also, if ever delegations were to be deprived of voting rights, their parliamentarians would still be able to take part in the election of judges onto the European Court of Human Rights, the Commissioner for Human Rights and the Secretary General of the Organisation. These are, arguably, the most significant decisions that PACE is empowered to make.

Also, under the little known Article 29 of the Statute of the Council of Europe, the proposal to increase a simple majority decision-making to a qualified majority one would itself require a qualified majority. In other words, provided the proposal to increase the voting majority remains in the draft resolution, a two-thirds majority of PACE members should vote in favour of it at the Assembly’s October part-session. If such a proposal is adopted it will signify that the vast majority of PACE members are willing to find a compromise with the Russian authorities.

For PACE to remove the possibility, in its rules, of the exclusion from its ranks of a parliamentary delegation of a state which refuses to comply with the Organisation’s fundamental values would be suicidal.  This would undermine not only the Assembly’s reputation and credibility, but that of the Council of Europe as a whole. Fortunately, nobody, despite the Russian request (and barring any amendment passed in PACE plenary in October), is proposing to totally remove the possibility of exclusion. Hence the logic in supporting, by all concerned, the proffered compromise of the Assembly’s ‘Rules Committee.’

Print Friendly, PDF & Email

Categories

  • Council of Europe
  • EJIL Analysis
  • European Court of Human Rights

    • Tags

  • Council of Europe
  • Russia

    • Leave a Comment

    Comments for this post are closed

    Comments

    Kanstantsin Dzehtsiarou says

    September 29, 2018

    Lize Glas has written a very helpful blog post on the same issue in StrasbourgObservers. See, https://strasbourgobservers.com/2018/09/27/the-assemblys-appeasement-towards-russia/

    KD

    André de Hoogh says

    October 1, 2018

    Having read with interest your contribution, I nevertheless have some hesitations about the alleged power to suspend Russia from participation in the activities of PACE. In your contribution you refer to rules 8 and 9 as the legal basis for suspension from the right of representation by the Assembly, which in turn is based on “its capacity to ‘adopt its Rules of Procedure,’ (Article 28(a) Statute), the legal validity of which has not been opposed by any member state (except Russia, recently) nor the Committee of Minister [sic]; the application of these rules has become a recognised practice (Klein, para. 3.72).” The particular sanction of suspension appears to be laid down in rule 10.1.c. Rules of Procedure of the Assembly. Of course, from your contribution it is not exactly clear what this ‘recognised practice’ entails. In particular, have other member States been deprived on substantive grounds of their right to participate in the activities of PACE, or is the established practice simply the existence of the relevant provisions in the Rules of Procedure?

    Irrespective, one would assume that the Rules of Procedure of the Assembly must be consistent with the Statute of the Council of Europe, which is not all that obvious. You refer to article 8 of the Statute, but do not appear to fully consider its implications. Article 8 specifies that “[a]ny member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw under Article 7. If such member does not comply with this request, the Committee may decide that it has ceased to be a member of the Council as from such date as the Committee may determine.” Although, technically, it is possible to separate the first part of the first sentence (“[a]ny member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation”) from the second part (“[a]ny member of the Council of Europe … may be … requested by the Committee of Ministers to withdraw under Article 7”), the fact that only the Committee of Ministers is mentioned in article 8 does suggest that the power to suspend lies with that body. The alternative interpretation, that any organ of the Council of Europe may decide this freely for itself, leads to fragmentation of the decision-making process. A certain ambiguity of formulation in article 8 may be asserted, and perhaps one ought to consult the preparatory works of the Statute (article 32 VCLT).

    The use of credentials procedures for the purpose of suspending rights of membership (which include the right of representation) has been controversial also within the United Nations. This has been the case especially with respect to the attempt to have South Africa suspended in the 1970s, which failed due to opposition in the Security Council, and which was then followed by a rejection of the credentials of the South African delegation coupled to a refusal to allow that delegation to participate in the work of the General Assembly. In an opinion of the Legal Counsel (A/8160), delivered already in 1970, it was pointed out that a rejection of credentials followed by exclusion from participation in meetings of the General Assembly would amount to a suspension of rights and privileges of membership not envisaged by the Charter itself and would be contrary to it due to the non-use of the procedure for suspension provided (article 5 Charter). In this case, the question of interpretation is whether the Statute envisages a suspension of the right of representation also by the Assembly, notwithstanding that the provision concerned only mentions the Committee of Ministers. If that question were to be answered in the negative, an appeal to the capacity to adopt Rules of Procedure and to the credential procedure, recognised practice or not, would be in vain.

    Andrew Drzemczewski says

    October 2, 2018

    Reply to Professor de Hoogh.

    Our position is that the Parliamentary Assembly, a Statutory Body of the Council of Europe, has a long-standing and well-established procedure in questioning credentials, recourse to which has been made for nearly 50 years. Hence reference in our blog to an unopposed (except by Russia, recently) practice accepted by all member states and the Committee of Ministers. This should be understood, in effect, as acquiescence to what has clearly cristalised into a well-established, non-controversial parliamentary practice with respect to which, additionally, the rule of estoppel could probably be invoked, were this to be questioned.

    As to the rationale of this well-established procedure, see §§. 11 & 12 of the explanatory memorandum of the ‘Rules Committee’ report of 20 September 2018: Rule 6 on credentials is based on Articles 25 and 26 of the Statute; the procedure for challenge credentials refers to the Preamble and Article 3 of the Statute and the Assembly’s duty to contribute, as a Statutory Body, to the promotion of Council of Europe values [http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=25052&lang=en]]

    For examples of this long-standing and well-established practice put into place in 1964, i.e., the possibility, by the Assembly, of contesting credentials of parliamentarians, which has nothing to do with suspending or expelling of states from the Organisation - we refer you to the portal of the Assembly's 'Rules Committee,' document AS/Pro (2014) 10 def) [http://website-pace.net/documents/19895/4613413/AS-PRO-2014-10-EN.pdf]
    and the book edited by Paul Evans and Paul Silk "The Parliamentary Assembly Practice and Procedure" (2012, 11th edition), pp. 112- 115.

    Simon Palmer says

    October 2, 2018

    I would like to point out to Professor de Hoogh, regarding his argument in the second paragraph of his post, that there is no ambiguity about the provisions of the Statute setting out the powers of the two Organs: action under Article 8 can only be taken by the Committee of Ministers. The Parliamentary Assembly is free to recommend, of course.

    André de Hoogh says

    October 8, 2018

    Dear Simon Palmer: the point I raised in respect of article 8 of the Statute of the Council of Europe is that the first part of the first sentence could be read as stand-alone and separate from the second part allowing the Committee of Ministers to request a member to withdraw. Although I tend to share your view that suspension from rights of representation can only be activated by the Committee, linguistically this is not fully evident; that is why I said that a ‘certain’ ambiguity could be asserted.

    Dear Professor Drzemczewski and Professor Dzehtsiarou: I much appreciate the internet links that you have included in your response, and I note that indeed there is a certain practice of the Assembly depriving delegations of members of certain rights or suspending these.

    What I am concerned with is the lack of a clear legal basis for the relevant rules of procedure and this practice in the Statute. The Explanatory Memorandum of rapporteur De Sutter argues that the Rules of Procedures of the Assembly cannot be contrary to the Statute (para. 10), but otherwise declares that “[t]he fact that the Statute requires certain elements of procedure to be included in the Rules of Procedure cannot limit the competences of the Assembly to adopt rules that it considers necessary for its proper functioning” (para. 11). Moreover, while accepting that the Committee has the competence to suspend the representation of a member, the memorandum then proclaims that the Assembly is “sovereign as to the conditions of representation of national parliaments within it” (ibid.).

    The Memorandum bases the rules regarding credentials on articles 25, 26 and 28 of the Statute (ibid.), but these provisions do not contain language suggesting a power of the Assembly to suspend rights of membership, representation or participation. Most illuminating in this respect is paragraph 15, which concerns Rule 10.1.c., where the Memorandum specifies that in such a case “the parliamentary delegation of the member State concerned sits in the Assembly but is deprived of some of its rights of representation and/or participation. These rights are not listed in the Rules of Procedure. It is up to the Assembly to determine the extent of the ‘sanction’ when it is called upon to decide, by resolution, on a challenge of the credentials (however, the Rules Committee, at the request of the Bureau of the Assembly, has drawn up a list of rights of participation or representation of which members may be deprived in the context of a challenge or reconsideration of credentials – document AS/Pro (2014) 10 def)”.

    All this suggests that an express power to suspend rights of representation (and/or participation) by the Assembly is absent in the Statute. To introduce such a power in the Rules of Procedure could only be done through invocation of an implied power – one may note the rather openly teleological language to this effect in paragraph 13 of the Memorandum –, which is also problematic considering that an express power has been granted to the Committee in article 8 Statute. The existence of an express power granted is generally seen as a limit to a claim of implied power, and in this case this is compounded by the fact that the express power concerned is granted to another organ and hence an implied power would disturb the distribution of functions within the Council of Europe (see Campbell, ICLQ 1983, 524-532; Blokker, International Organizations or Institutions, Implied Powers, MPEPIL, paras. 18 and 20).

    In passing you mention that the possibility of contesting credentials “has nothing to do with suspending or expelling of states from the Organisation”. To me it seems to follow, and rather clearly at that, from the language used in the Memorandum that contesting credentials is precisely about suspending rights of representation (and also participation) of a member in the Assembly. Indeed, article 8 Statute does not speaking of suspending a member, but of suspending its rights of representation.

    Whether it might be possible to argue the existence of a customary power, based on an unopposed practice accompanied by acquiescence of the members and the Committee, is another matter that I will not address at this time.