The Council of Europe Excludes Russia: A Setback for Human Rights

Announcements and decisions of the Council of Europe (CoE) and Russia regarding the latter’s membership in the CoE have been outdating each other over the past few days. Upon unanimous request of the Parliamentary Assembly (PACE), the Committee of Ministers (CoM) decided on 16 March 2022 to exclude Russia from the CoE as of that date. Russia had formally notified the CoE of its decision to withdraw the preceding day. Less than a week before, the Russian Foreign Ministry had announced Russia’s intention to withdraw from the CoE. It accused the EU and NATO states of destroying the CoE by replacing international law with a “ʻrules-based order’” and by making it “another platform for preaching about Western superiority and for grandstanding.” These states should “enjoy each other’s company without Russia”. This statement reads as a reaction to the CoE’s suspension of Russia. Suspension and exclusion are the means of sanctioning member states for serious violations of the CoE Statute. They appear to be the inevitable reaction to Russia’s actions. With its war against Ukraine, Russia has deeply disrupted the peace in Europe and undermined the aims of the CoE, which was formed under the impression of the atrocities of the Second World War. One might wonder, however, if the rapidly escalating confrontation that has culminated in the simultaneous decision of Russia and the CoE to end Russia’s CoE membership effectively works to the detriment of the people. As this post aims to illuminate, the sanctions logic underlying the CoE’s means of response is, indeed, not without problems for effective human rights protection.

Suspension and exclusion: practice, conditions and consequences

Suspension of member states’ representation rights and their exclusion are the sharpest instruments available to the CoE to respond to serious breaches of the Statute. After the near suspension of Greece in 1969 and the controversial and soon after lifted suspension of Russia by PACE in 2014, the jointly decided suspension by PACE and CoM and the subsequent exclusion of Russia are the first in the history of the CoE.

Pursuant to Art. 8 CoE Statute member states may be suspended from their rights of representation and, if they do not withdraw upon request, excluded by CoM in case of a serious violation of Art. 3 CoE Statute, which obliges the member states to accept the principles of the rule of law and human rights as well as the objective of cooperating in the realisation of the aim of the CoE. The aim, listed in Chapter I (and the preamble), includes the protection of peace. Procedural issues aside, Russia’s actions have arguably provided reasonable substantive grounds for suspension and exclusion. The great majority of the international community condemned Russia’s invasion into Ukraine as an act of aggression in violation of Art. 2 (4) of the UN Charter in the UN “Aggression against Ukraine” Resolution. The use of weapons against civilians violates international humanitarian law and complementary human rights. Even if the armed conflicts over South Ossetia, Abkhazia, Crimea and Nagorno-Karabakh did not lead to a complete suspension of member state representation rights, the extent, gravity and persistence of Russia’s current violations of international law justify a more rigorous reaction.

Russia’s suspension temporarily barred its representatives from participating in the work of CoM and PACE. With its exclusion, Russia ceases to be a member of the CoE and a party to the European Convention on Human Rights (Art. 58 para. 3 ECHR).

Comparison with the American and African human rights regimes

A comparison with other regional human rights regimes shows that only the European system provides for the exclusion of a member state and the termination of its party status to the ECHR in response to a violation of the founding Statute. Although representation rights in the Organization of American States (OAS) may be suspended, a member state may not be excluded, nor can it be deprived of its status as a party to the American Convention on Human Rights. Furthermore, suspension is only possible if a democratic regime is overthrown by force (Art. 9 OAS Charter) to avoid the impression that a de facto regime is recognized as a legitimate new government (cf. here). The African human rights system does not provide for either the suspension or the exclusion of member states. Only the states themselves can withdraw their declaration to submit to the jurisdiction of the African Court of Human Rights (e contrario Art. 34 (6) African Convention on Human Rights) or denounce the Charter of the Organization of African Unity (Art. XXXI).

How suspension and exclusion work to the detriment of human rights protection

Suspension and exclusion have an intrinsic legal value as they prevent representatives of CoE Statute defaulting regimes from subverting CoM and PACE. This is significant in that CoM has the political function of making recommendations to member states, which the ECtHR also takes into account in its decisions. Furthermore, CoM has the administrative task of monitoring and accompanying the implementation of the Court’s judgments (Art. 46 paras. 2-4 ECHR). In addition, it has the right to request a judicial opinion in accordance with Art. 47 ECHR. PACE elects the judges of the Court (Art. 22 ECHR).

The fact that the exclusion entails a simultaneous renouncement of the ECHR ex nunc is yet a different matter. Here, the Statute’s sanctions logic extends to the ECHR. This appears misguided. As consistent as it may be from an intergovernmental perspective to exclude a contracting state that does not fulfil its Statute obligations, it is at least equally problematic from an individual rights perspective if legal protection is restricted precisely when it is needed most. After all, the goal of a human rights system should be to make remedies available to victims of the most serious human rights violations and not to withdraw them. Conversely, when Russia’s exclusion takes effect, human rights victims of Russian action, such as imprisoned political opponents fearing the reintroduction of the death penalty, Ukrainian civilians suffering or becoming refugees from Russian military action or occupation, or foreign nationals of third countries who become victims of extended Russian aggression will lose their means of remedial action before the European Court of Human Rights (ECtHR). What will happen to the pending applications against Russia is not yet clear. The Court has suspended their examination to assess the legal consequences of Russia’s exclusion.

Moreover, the sanctions logic rests on weak premises that will hardly lead to the intended goal of a country like Russia ceasing its violations of the CoE Statute. Firstly, it presupposes that pressure will bring about the desired change in conduct. Instead it seems that the imminent risk of being requested to withdraw might have even pushed Russia in that direction. Secondly, the sanctions logic underestimates that in terms of political or economic power, the CoE membership, which promises neither economic nor security advantages, has limited value. It is not required for international cooperation within the framework of the WTO, the UN or the OSCE, for example. The international recognition that CoE membership guarantees only influences state conduct, like Russia’s endeavour to retain membership in connection with the dispute over Crimea, if that recognition is immanently valued.

The way forward: Modifying means of response to serious violations of the CoE Statute

Looking forward, this line of reasoning leads me to recommend that the CoE member states should seek means of (re-)conciliation before resorting to suspension, the request of withdrawal and exclusion. They should further adopt a Protocol of Amendment to the ECHR that removes the link between CoE membership and the ECHR, so that states remain bound by their human rights obligations even if excluded from the CoE. Indeed, such an amendment faces some challenges. All member states have to agree. Some member states might take issue with accepting that – in a case like Russia – a state remains in the Convention system, despite having committed serious human rights violations during an international armed conflict, especially because the ECtHR considers that it has no jurisdiction to condemn such actions (cf. Georgia v. Russia II). It might therefore be worth considering extending the ECtHR’s jurisdiction to such cases. Notably, however, also with the scope of its present jurisdiction, the Court has been able to provide redress to victims of rights violations that occurred in the context and aftermath of international armed conflicts (cf. Georgia v. Russia II). Regarding the current conflict in Ukraine, the ECtHR has just issued urgent interim measures against Russia to stop military attacks on civilians and civilian objects. Ukraine’s interstate complaint will allow the Court to assert the rule of European human rights against their violation. This is important for preserving the rule of law, which requires the counterfactual stabilisation of behavioural expectations, i.e. the affirmation of law in response to and despite its violation.

Certainly, states can decide to denounce the ECHR. Yet, breaking the link between CoE membership and the Convention prevents states like Russia from getting away with attributing an ECHR withdrawal to other states’ alleged political misconduct in the CoE without having to provide proper justification to the people they deprive of their human rights protection.