Summit of Fire and Ice 4th: Council of Europe Summit, Reykjavík

Iceland is known as “the land of fire and ice.”  Its dramatic volcanoes are constantly and rapidly shaping a new complexion in the north-west European island state, whilst its seemingly unchanging glaciers slowly and stubbornly carve through the landscape. Fire and ice are words that also come to mind when one reflects on the historic Summit of Council of Europe Heads of State and Government held on 16 – 17 May 2023 to conclude Iceland’s Presidency of the Committee of Ministers (CM) because of the profound evolution of the organisations focus on the one hand, and the near absence of progress on the other.

The Summit focussed principally on four overarching issues: 1) ensuring accountability for Russia’s crimes in Ukraine, 2) reviving commitment to the ECHR control system, 3) reiterating fundamental principles of democracy, and 4) advancing the agenda of human rights and the environment.

Clearly, the Reykjavík Declaration and its five substantive appendices have the potential to significantly strengthen the Council of Europe (CoE) and the European Court of Human Rights, and to make them more effective in responding to future challenges even if some of the language used seems ritualistically familiar, vacuous and vague. The bringing together of so many Heads of State and Government (HoSG) at such a critical moment in European history is a major success in its own right, but real success will be measured by any follow-up action. It is therefore essential for Member States, elected reps, National Human Rights Institutions, and wider civil society to see this not as a product of change, but as the beginning of a new process of revival. In this post, I offer some reflections on the Summit, as well as a few words of caution.

But first, some background.

How the Summit came about?

It’s striking to note that this was only the fourth ever Summit in the history of Europe’s oldest intergovernmental organisation, the previous summit having taken place eighteen years earlier in Warsaw. This is in sharp contrast with, say, the European Council which meets quarterly. Each CoE Summit has had a major outcome: Vienna (1993) was about enlargement and working towards a permanent European Court of Human Rights, Strasbourg (1997) paved the way for the establishment of the CoE Commissioner for Human Rights and Warsaw (2005) bedded in the key mission to safeguard and promote human rights, democracy and the rule of law, and reinforced relationships with EU and OSCE in particular. The passage of time is just one indicator of the enormous challenge associated with gathering HoSG to discuss matters related to human rights, democracy and the rule of law. Yet, the Icelandic CM Presidency, building on momentum generated under the Irish Presidency before it, secured the participation of more than 80% of European HoSG, which is an enormous diplomatic and symbolic achievement in itself and so deserves huge credit.

The theme of the Summit was Unity around Values, in particular uniting against Russia’s war of aggression on Ukraine which was cited as “an attack on European democracies.” As Europe is witnessing an aggressive war based on openly genocidal and eliminationist rhetoric which has cost the lives of hundreds of thousands of people, displaced millions, and caused catastrophic social and economic damage, it is right and proper that Ukraine took centre stage. Since February 2022, the CoE has mobilised rapidly and effectively to support Ukraine, starting with the unprecedented decision to expel Russia from the organisation in March 2022. The Summit creates the necessary political framework for the long-term support of Ukraine.

A word of caution is required though.

The focus on Ukraine must not dilute the focus on standards and practice of other Member States. The Summit had the broader objective of seeking to strengthen the CoE’s work on human rights, democracy and the rule of law by recommitting states to the European Convention on Human Rights. This was necessary, as the problems of democratic backsliding, bad faith, non-execution, deliberate political attacks on the ECHR and resource-deprivation did not begin in 2022, nor are they exclusively a product of Russia’s actions. If anything, the CoE was becoming complacent with the emergence of casual authoritarianism, normative belligerence and creeping repression of civil society for far too long. Many countries are demonstrating waning interest in CoE standards, whilst others are actively legislating in a manner that risks undermining their international obligations. Others still are openly flouting judgments of the Court. All CoE Member States share responsibility for these challenges.

The CoE was ailing and in need of urgent, high-level political attention long before Russia slammed the door on democracy and nailed it shut. 

Back to Basics

Previously, I argued that a Summit was essential to salvage, revitalise and reinforce Europe’s human rights protection architecture, but there had been calls to convene a 4^th Summit since at least 2017. There had been hopes that France might host the Fourth Summit in 2019 to coincide with the 70^th anniversary of the organisation, but that failed due to the still fraught political atmosphere amongst Member States since Russia’s illegal annexation of Crimea in 2014. France focussed instead on cohesion within the Organisation, in particular between the two principal statutory organs, the Parliamentary Assembly and the CM, which had been embroiled in a politico-constitutional crisis following the sanctioning of Russia in 2014 and its withholding of unconditional financial contributions. However, Russia’s full-scale invasion in 2022 focussed the minds and finally generated the critical mass necessary for the Summit to materialise. The Parliamentary Assembly, under Rapporteur Fiona O’Loughlin, played a decisive role in shaping the Summit priorities building on the work of the High-Level Reflection Group.

Since the Summit was confirmed at the end of Ireland’s CM Presidency, expectations have run high, with many views being shared about what it should focus on (e.g. here). The European Court of Human Rights itself submitted a hard-hitting Memo calling for more resources, more accountability and more execution, whilst the European Network of NHRIs outlined Four key priorities, and civil society presented a comprehensive Declaration on Council of Europe Reform.

The Summit was never going to fulfil all expectations, and the Programme let alone the Reykjavík Declaration was necessarily a product of gritty compromise. It focussed on the fundamentals of human rights, democracy and the rule of law, leaving a significant margin of appreciation in terms of follow-up. The CM avoided having to engage with the divisive issue of Kosovo’s application for membership as this was progressed through a CM procedural decision gate just two weeks before the Summit.

Supporting Accountability for Ukraine

In terms of concrete outcomes, the focus on Ukraine was predominantly to support a system of accountability for Russia’s war of aggression and the establishment of a Register of damage via an Enlarged Partial Agreement. The Register will document evidence on damage, loss or injury caused on or after 24 February 2022 in the territory of Ukraine within its internationally recognised borders, extending to its territorial waters, by the Russian Federation’s internationally wrongful acts. Established for an initial period of three years, it will be based in The Hague with a satellite office in Ukraine.

The mechanism was not universally accepted by all CoE Member States which suggests a fraught and divisive negotiation. It was signed by thirty-seven Member States, though three if these are associate members, and the European Union (as the primary funder of the initiative). Canada, Japan, Mexico and the USA also joined – one of the great advantages of an “Enlarged” versus standard Partial Agreements. Andorra, Bulgaria and Switzerland expressed their intention to join in the near future whereas Azerbaijan, Armenia, Bosnia and Herzegovina, Hungary, Serbia and Türkiye did not support the initiative. One can think of realpolitik reasons why they held back, but as a genocidally-motivated aggression rages in Europe it is difficult to countenance their lack of support and seems to be at odds with spirit of the Declaration to “stand united against Russia’s war of aggression against Ukraine.”

One of the legal curiosities of the mechanism is the decision to limit its temporal jurisdiction as from 24 February 2022 and not 20 February 2014 when Russia began its annexation of Crimea or 16 March 2014 when Russia held an illegal referendum in Crimea. The CM Decision in response to the invasion understandably referred to 24 February as this was the point at which the invasion became large scale, but neither the CM Decision from September 2022 nor the underpinning United Nations General Assembly Resolution (A/RES/ES-11/5) limited the temporal scope of a Register in principle. Indeed, the former referred to the need for “a comprehensive international compensation mechanism” which would intuitively include crimes committed since the war began in 2014. In any event, the Declaration also provided for a significant and long-term role for the CoE with respect to Ukraine, including potentially providing expertise towards the establishment of a special tribunal.

Other Notable Focus Areas

As Antoine Buyse rightly pointed out, there is something in the Declaration for almost everyone. It is wide-ranging and deliberately vague at times. It is indicative rather than prescriptive, in other words, it sets out the “what” but not necessarily the “how”.

In recommitting to the Convention System, Member States called out the rhetoric in many states whereby the Convention and Court are being questioned or attacked. It suggested that problems in implementing judgments are “often due to limited resources and technical expertise”, which is somewhat misleading. In reality politics, populism and ideology are very often the heart of the problem of non-execution. It calls for greater synergy between monitoring and advisory bodies, and other relevant CoE departments to improve normative compliance and more generally seeks to set the CoE on “a new path of increased transparency and co-operation with its stakeholders, with strengthened visibility and sufficient resources.” The Summit advanced the “Reykjavík Principles for Democracy” and committed to a regular High-Level Dialogue with Member States on Democracy.

On a positive note, the Declaration commits to strengthening the Commissioner for Human Rights, the Venice Commission, the European Social Charter system as well as more meaningful engagement with civil society organisations and national human rights institutions (NHRIs). It explicitly recognises the relationship between social justice and democratic security. This goes decisively beyond the cursory references to social rights we have become accustomed to, and member States are also to consider a High-Level Conference on the European Social Charter to reinforce the Charter’s commitments. In drawing links between the impacts of pollution, climate change and loss of biodiversity on the realisation of human rights, states committed to implementing the CM Recommendation on human rights and the environment as well as establishing a new intergovernmental committee to consider new instruments in this area. States also committed to finalising the Framework Convention on Artificial Intelligence.

Finally, Member States reasserted support for the sovereignty, independence and territorial integrity of not just Ukraine, but also Georgia and the Republic of Moldova and called for the immediate, complete and unconditional withdrawal of Russian forces from those regions (implying Abkhazia, South Ossetia and Transnistria respectively). These and other areas of unresolved conflict such as Nagorno-Karabakh, remain major flashpoints for conflict and pose a substantial risk of serious human rights violations and accountability vacuums. The Galway Conclusions noted that unresolved conflicts pose a significant risk to human rights and the broader CoE system, which was echoed by the High-Level Reflection Group. The Reykjavik Declaration could have done much better in acknowledging the existence of multiple theatres and forms of ongoing conflict in Europe and the potential role of the CoE including in terms of Confidence Building, monitoring and capacity building. It is incumbent on the CoE to increase its focus on conflict-affected regions, including by seeking to engage with civil society, democratic forces and Ombudsman-type organisations who can shine a light on the de facto human rights situation on the ground.

Conclusion: New Political Mandate, Uncertain Future

Europe is experiencing a catastrophic war of aggression in Ukraine, which is also a full-frontal attack on European democracy. The Reykjavik Declaration provides the basis for a deepening and broadening of CoE activity in many fields as well as a renewal of commitments to the fundamentals of democracy, human rights and the rule of law. It is an imperfect product of compromise, and one might be tempted to criticise its meandering hodge-podge of lofty commitments or the lack of detail, but these very points may well be its greatest strengths. It all depends on how it is taken forward. It needs to be interpreted and systematically worked through by the Secretariat, relevant Committees and other CoE bodies with the active support of Member States. The Secretary General and Deputy Secretary General in particular will play a decisive role in driving forward implementation and they must be supported to do so. Civil society, NHRIs, academia and media should hold Member States to account for effective delivery.

Implementation also provides an opportunity to also address other ‘frozen’ issues that did not appear in the Declaration such as the need to examine why Russia’s belligerence was tolerated for so long in the CoE; the need to strengthen the CoE sanctions regime; the ineffectiveness of Interim Measures; the issue of bad faith; the issue of political prisoners in Europe; the dramatic erosion of judicial independence in some states; the importance of the work of monitoring bodies including their full and unimpeded access to all territories; the gaping hole in the budget since Russia’s departure; the stagnation in accessions to major treaties or protocols such as the Additional Protocol to the ESC and the withdrawal from others, as well as the place of the CoE in the international order now that the European Political Community looks here to stay.

The Reykjavik Summit is a critical point of inflection for the CoE but the system will only be strengthened if Member States actively implement the spirit of the Declaration, in particular in the way they resource, defend and champion the values they have voluntarily subscribed to at home. As German Chancellor Olaf Schloz noted in his speech there is an inseparable link between the rule of law, democracy and the protection of human rights at the national level and peaceful coexistence at the international level.

Whether the future of the Council of Europe will be characterised by fire or by ice remains to be seen.

Photo: ‘Reykjavík’ (Hugi Ólafsson, February 13, 2016)