D Explanatory memorandum, by Mr Pieter
Omtzigt
1 The observer status (with the Council of Europe
and/or with the Parliamentary Assembly)
1. The core objective of the Council of Europe, as reflected, inter alia, in its Statute and most
recently in the Final Declaration of the Warsaw Summit of Heads
of State and Government of May 2005, is to preserve and promote
democracy, the rule of law and human rights.
2. According to paragraph 1 of Statutory Resolution (93) 26 of
the Committee of Ministers of the Council of Europe “any state willing
to accept the principles of democracy, the rule of law and the enjoyment
by all persons within its jurisdiction of human rights and fundamental
freedoms, and wishing to co-operate with the Council of Europe may
be granted by the Committee of Ministers, after consulting the Parliamentary
Assembly, observer status with the Organisation”.
3. In July 1999, the Committee of Ministers laid down further
criteria (see CM/Inf(99)50), in particular the obligation for these
states to:
- share Council of
Europe values, as reaffirmed in particular in the Final Declaration
of the Strasbourg summit in October 1997 (including the principle
of abolishing the death penalty);
- have a European connection;
- be willing and able to make a positive contribution to
the work of the Council of Europe;
- maintain sustained contacts with the Council of Europe
headquarters, preferably through a permanent office in Strasbourg.
4. To date, five states have been granted observer status with
the Council of Europe, namely (in chronological order) the Holy
See, the United States, Canada, Japan and Mexico.
5. In addition, in accordance with Article 60.1 of the Parliamentary
Assembly Rules of Procedure, “the Assembly may, on the proposal
of the Bureau, grant observer status to national parliaments of
non-member states of the Council of Europe which meet the conditions
set out in paragraph 1 of Committee of Ministers Statutory Resolution
(93) 26 on observer status. Any requests for observer status shall
be referred to the Political Affairs Committee for report and to
other relevant committees for opinion”.
6. To date, the parliaments of Israel, Canada and Mexico have
observer status with the Council of Europe Parliamentary Assembly
(see table below).
|
Country
|
Observer status with the Council of Europe (date
of status)
|
Parliaments enjoying observer status with the Parliamentary
Assembly
|
|
Israel
|
–
|
No formal arrangement (status granted on an ad hoc
basis on 2 December 1957, before the Assembly officially introduced
it in 1961)
|
|
The Holy See
|
(7 March 1970)
No formal arrangement
|
–
|
|
United States
|
(10 January 1996)
– CM Statutory
Resolution (93) 26
– Parliamentary Assembly Recommendation 1282 (1995)
–
CM Resolution (95) 37
|
–
|
|
Canada
|
(3 April 1996)
– CM Statutory Resolution
(93) 26
– Parliamentary Assembly Opinion No. 196 (1996)
–
CM Resolution (96) 9
|
(28 May 1997)
– Parliamentary Assembly
Rules of Procedure
– CM Statutory Resolution (93)
26
– Parliamentary Assembly Resolution 1125 (1997)
|
|
Japan
|
(20 November 1996)
– CM Statutory
Resolution (93) 26
– Parliamentary Assembly Opinion No. 194 (1996),
20 March 1996
– CM Resolution (96) 37
|
–
|
|
Mexico
|
(1 December 1999)
– CM Statutory
Resolution (93) 26
– the “1999 criteria” [CM/Inf (99)
50]
– Parliamentary Assembly Opinion No. 214 (1999)
–
CM Resolution (99) 32
|
(4 November 1999)
– Parliamentary
Assembly Rules of Procedure
– CM Statutory Resolution
(93) 26
– Parliamentary Assembly Resolution 1203 (1999)
|
|
Pending request for observer status with the Council of
Europe
|
Pending request for observer status with the Parliamentary
Assembly
|
|
None
|
Parliament of Kazakhstan
|
7. However, the observer states/parliaments have not
all been granted observer status on the basis of formal arrangements,
in particular on the basis of the 1993 Statutory Resolution. In
addition, as indicated by the Rapporteur of the Political Affairs
Committee, they argue that the statutory resolution on observer
status of 1993 contains no formal standards and commitments, and
the observers are not parties to Council of Europe key human rights
conventions, in particular the European Convention on Human Rights.
In this respect, however, the Council of Europe Committee of Ministers,
in 2006, referred to the “obligation for observer states to meet
the requirements of Statutory Resolution (93) 26, the additional
criteria adopted by the Committee of Ministers on 7 July 1999, and
relevant international legal standards”.
NoteOne can nevertheless
question whether the criteria for the granting of observer status
of July 1999 – which only applied to Mexico – can be retroactively applied
to other observer states. There is obviously a need to clarify this
situation (see Chapter III below).
8. I agree with the Rapporteur of the Political Affairs Committee,
according to which “this should not prevent the Assembly, the Committee
of Ministers or other Council of Europe bodies from continuing to
question observer states and comment on matters that cause concern
where there appears to be a disregard of principles which we in
the Council of Europe believe to be fundamental”
Note(see below).
9. That being said, I do not share the view that observers should
be included – subject to their agreement – in the framework of Assembly
debates on the state of human rights and democracy, as proposed
by the Rapporteur of the Political Affairs Committee. Indeed, these
reports should focus on and be limited to European countries. Enlarging
the geographical scope of the report would dilute its content, impact
and visibility and could therefore even be detrimental to the credibility
of the Organisation.
10. Nevertheless, the Assembly could and should continue to hold
debates, when appropriate, on relevant specific issues of concern
in observer states (for example the death penalty – see below).
2 Respect for rule of law and human rights standards
by observer states: overview of certain issues of concern
11. In his report, Mr Wilshire has invited the Rapporteur
for opinion of the Committee on Legal Affairs and Human Rights to
provide a brief overview of the observers’ respect of the rule of
law and human rights. Given the very tight time schedule given to
me to prepare this opinion,
NoteI
have decided to limit this chapter to an overview of a number of
major issues of concern, raised by international organisations and/or
judicial bodies and/or NGOs concerning observer states, in the light
of the core values and principles of the Council of Europe.
2.1 Respect for international and human rights law
standards: major issues
2.1.1 The United States (observer status with the Council
of Europe)
12. The United States has traditionally been and remains
Europe’s long-standing ally in resisting tyranny, upholding the
rule of law and defending human rights. The United States, with
the help of allies like Canada, helped European states to defeat
tyranny and dictatorship in 1945 and once again during the Cold
War. Human rights are now well established throughout Europe thanks
to American interventions at crucial times in European history.
The United States and Europe share common values and pursue the
same goal of promoting and strengthening respect of human rights
and the reinforcement of the rule of law.
13. However, in 2007, on several occasions, the Council of Europe
Parliamentary Assembly considered that the American administration,
in its pursuit of its so-called “war on terror”, has inappropriately
and unilaterally disregarded certain key human rights and humanitarian
legal norms. More specifically, the Assembly pointed out that the
“United States continues unlawfully to detain persons in Guantánamo
and elsewhere, in flagrant breach of its international obligations”,
has “maintained – at least until very recently – a ‘spider’s web’
of secret detention centres and unlawful inter-state transfer routes,
often in collaboration with countries notorious for their use of
torture”
Noteand
has “attempted to undermine the effectiveness of the International
Criminal Court (ICC)”.
NoteThe
United States was instrumental in setting up the ICC, which ensures
that the most heinous of crimes cannot be committed with impunity.
It is rather unfortunate that the United States has not ratified
the treaty, but has also taken steps via bilateral agreements to
exempt its citizens from ever being prosecuted. Furthermore, the
United States passed the American Service-Members’ Protection Act,
whose most contentious provision is what has been commonly referred
to as the “Hague Invasion Act”, reserving the right to the United
States to invade The Hague to remove United States citizens detained
by or on behalf of the ICC.
14. In addition, the United States has not abolished the death
penalty (the issue of the death penalty is addressed in a separate
chapter below).
15. In December 2007, the Council of Europe Commissioner for Human
Rights
Notestressed
that “the United States administration has approved interrogation
methods against terrorist suspects which clearly violate the agreed
standards”. “That the United States administration continues to
authorise interrogation methods which are prohibited makes even
more alarming its refusal to put an end to the use of secret prisons
where abducted persons are kept by the CIA in total isolation for
special treatment” he added. “Enhanced interrogation techniques”
are among the terms used by the current United States administration
to describe methods of extracting information from detainees in
the so-called “war on terror”. They cover “waterboarding”, the use
of dogs and sexual humiliation. Although this term is not clearly
defined, human rights organisations and human rights NGOs consider
that these methods amount to torture. Last December, Mr Dick Marty,
Chairperson of the Committee on Legal Affairs and Human Rights of
the Council of Europe Parliamentary Assembly, welcomed “the moves
in the two houses of the United States Congress towards banning
the CIA from using these coercive interrogation methods”.
NoteTo
date, the bill is still with the United States Congress.
2.1.2 Mexico (observer status with the Council of Europe
and the Parliamentary Assembly)
16. According to NGOs, federal and state authorities
should ensure that state law and practice are consistent with international
human rights standards and that longstanding impunity for human
rights abuses ends. Mexico should in particular focus on five key
areas: international human rights standards; public security and
the criminal justice system (including conditions of detention in
prisons and the issue of torture and ill-treatment); accountability;
human rights defenders and the rights of victims.
Note
17. In 2005, in its
Resolution
1454 (2005) on the disappearance and murder of a great
number of women and girls in Mexico, the Assembly established that
hundreds of women and girls had been brutally murdered in the northern
Mexican border state of Chihuahua since 1993.
NoteReportedly,
women are still being abducted, tortured and killed despite government
efforts to investigate these brutal murders. To tackle the situation,
a federal law strengthening the right of women to live free from
violence was passed recently. In addition, in February 2007, a Special
Federal Prosecutor’s Office for Crimes of Violence Against Women
was established.
2.1.3 Israel (the Knesset’s observer status with the
Parliamentary Assembly)
18. The Parliament of Israel acquired observer status
with the Parliamentary Assembly on an ad hoc basis in 1957, before
the Assembly officially introduced it in 1961. It was not required
to give any undertakings. In addition, the State of Israel has never
requested to be granted observer status with the Council of Europe.
19. In 1954, Israel abolished the death penalty for ordinary crimes
but not for exceptional crimes (such as treason during a time of
war and genocide). However, since then, it was only applied once,
in 1962.
NoteIsrael should
be encouraged to abolish the death penalty for all crimes.
20. In this chapter on respect for international law, one should
also mention a number of issues arising from the situation in the
Middle East, in particular the Advisory Opinion of the International
Court of Justice (ICJ) in the case of the Legal Consequences of
the Construction of a Wall in the Occupied Palestinian Territory.
NoteThe ICJ
concluded,
inter alia, that
“The construction of the wall being built by Israel, the occupying
Power, in the Occupied Palestinian Territory, including in and around
East Jerusalem, and its associated regime, are contrary to international
law”. In addition, international human rights bodies as well as
NGOs continue to denounce alleged violations of human rights and
international humanitarian law by Israel.
NoteMore
particularly, allegations of torture continue despite efforts to
deal with this issue.
NoteThe
country’s difficult security situation and its right to self-defence
are often invoked in this context.
2.2 Abolition of the death penalty in Japan and the
United States
21. To date, two observer states with the Council of
Europe, namely Japan and the United States, continue to have recourse
to and to apply the death penalty.
22. On several occasions, the Parliamentary Assembly and its Committee
on Legal Affairs and Human Rights
Notehave
reiterated that the application of the death penalty is a violation
of fundamental human rights and that capital punishment must be
totally removed once and for all from the legislation of all countries
which strive to uphold democracy, the rule of law and human rights.
23. In this context, it is worth underlining that one of the major
achievements of the Council of Europe, and of its Parliamentary
Assembly in particular, is the de facto
Noteabolition
of the death penalty in peacetime in Council of Europe member states.
The Assembly has tirelessly led the campaign for a death-penalty-free
zone, notably by making abolition a condition of accession for new
member states. As a result, no execution has taken place on the
territory of the Organisation’s member states since 1997. In 2007,
the Council of Europe officially declared a “European Day against
the Death Penalty”, to be held annually on 10 October. The European
Union has also agreed to associate itself with this initiative.
24. The recent adoption by the General Assembly of the United
Nations of a resolution
Notecalling for
a worldwide moratorium on the use of the death penalty is a milestone
on the path towards the abolition of the death penalty worldwide.
25. It should be noted that Mexico, where the death penalty had
not been carried out since 1937, officially abolished capital punishment
in 2005. I welcome this very positive step.
26. In Japan, however, executions are still taking place.
NoteIn
addition, as already stressed by the Parliamentary Assembly,
Notethe
conditions in which the death penalty is carried out continue to
be rigorously denounced.
27. To date in the United States, 36 of the 50 states, as well
as the federal government, are still retentionist.
NoteOn
a positive note, it should also be stressed that there seems to
be an increasing trend in favour of placing moratoria on state-wide
implementation of the death penalty.
NoteIn
December 2007, the State of New Jersey abolished the death penalty.
In addition, the United States Supreme Court is presently examining whether
lethal injection – the means of execution in most states – violates
the United States Constitution’s ban on cruel and unusual punishment.
28. The Assembly has, on several occasions, urged Japan and the
United States to place an immediate moratorium on executions and
to take the necessary steps to abolish the death penalty.
NoteFurther
to its position taken in June 2006,
Notethe
Assembly should invite the Committee of Ministers to:
- reiterate the position of principle
that states enjoying observer status shall respect fundamental human rights
and not apply the death penalty;
- intensify its political dialogue with Japan and the United
States to encourage both countries to at last place an immediate
moratorium on executions and to urge them to abolish the death penalty
as soon as possible; and
- present to the Assembly by the end of 2008 a detailed
account of its contacts with these countries.
2.3 Other issues
2.3.1 Mexico (observer status with the Council of Europe
and the Parliamentary Assembly)
29. The 1999 Parliamentary Assembly report on the request
of observer status of Mexico with the Council of Europe addressed
the issue of the conflict in Chiapas.
NoteReportedly,
sporadic outbursts of politically motivated violence continue to
occur in indigenous communities in the states of Chiapas, Guerrero
and Oaxaca.
2.3.2 The Holy See (observer status with the Council
of Europe)
30. The Holy See – the government of the “Vatican City
State” – was granted observer status in 1970 prior to any formal
arrangement. It was not required to give any undertakings. In addition,
the Vatican’s atypical institutional structure makes it a special
case. Women are excluded from leading positions. Even if a number of
NGOs
Noteconsider
that the Vatican’s doctrines/policies on sexual orientation and
gender identity disregard fundamental rights of sexual minorities
and use language that could be interpreted as intolerant in their
respect, one should stress that the Holy See has expressed on several
occasions its strong commitment to human rights and fundamental
freedoms. It has, in particular, taken a strong position in favour
of a worldwide abolition of the death penalty. It also plays an
important role in the international community as a voice for peace
and inter-religious tolerance.
31. Concerning the Holy See’s observer status with the Council
of Europe, like the Rapporteur of the Assembly’s Political Affairs
Committee, I fully support his opinion that the status quo should
be accepted and continued.
32. Indeed, I very much welcome the fact that the Roman Catholic
Church actively participates in a dialogue on human rights as an
observer state.
33. To briefly conclude this chapter, the Assembly should strongly
encourage observer states to fully respect well-established international
human rights law standards and to implement the ideals and values
of the Council of Europe, including in the fight against terrorism.
3 The necessity for additional criteria and clarification
of the designation of the observer states
34. As indicated in Chapter I above, there is obviously
a need to clarify which precise standards should be respected by
observers. I share the view according to which observer states should
have a European connection (see the 1999 criteria above). I also
share the view of the Political Affairs Committee, according to which
the current situation where the granting of observer status entails
no formal commitments needs revision before any new application
for observer status may be considered.
35. If, as proposed by the Political Affairs Committee, a clearly
defined set of standards were to be attached to the general criteria
set out in the statutory resolution, to which a state seeking observer
status would have to commit itself, these standards should be elaborated
by the Council of Europe Statutory Organs, which include the Parliamentary
Assembly.
Note
36. If the approach proposed by the Political Affairs Committee
were to be adopted, the unwillingness of states already enjoying
observer status to accept to undertake, on a voluntary basis, to
comply with a mutually agreed set of standards would, however, need
to be assessed by the Assembly.
37. Finally, as proposed by the Political Affairs Committee, it
might also be useful to consider clarifying the differing status
of observer states by introducing new designations for existing
observer states without altering their status in any way.
4 The importance of dialogue and the role of the
Committee on Legal Affairs and Human Rights
38. The Assembly should invite its Political Affairs
Committee, as well as its Committee on Legal Affairs and Human Rights,
to take responsibility for developing the involvement of parliamentary
observer delegations in all aspects of the Assembly’s work. The
Assembly should also reiterate its readiness to establish a constructive dialogue
with parliamentary delegations of Japan and the United States on
important human rights and legal issues, including the death penalty.
39. In addition, given that the ideals and values of the Council
of Europe focus on democracy, the rule of law and human rights,
the Assembly’s Committee on Legal Affairs and Human Rights should
be seized for opinion to examine any future request for observer
status with the Council of Europe and/or with the Assembly.
40. The contribution of the parliamentary observers to the political
debate in the Assembly is greatly appreciated and should be further
encouraged.
Reporting committee: Political Affairs Committee. Committee
for opinion: Committee on Legal Affairs and
Human Rights.
Reference to committee: Doc. 10626 and
Reference No. 3125 of 1 September 2005.
Opinion approved by the committee on 21 January 2008.
See 6th Sitting, 23 January 2008 (adoption of the draft resolution
and the draft recommendation, as amended); and Resolution 1600 and Recommendation 1827.
