C Explanatory
memorandum by Mr Prescott, rapporteur
1 Introduction
1. As stated in the motion for a recommendation presented
by the rapporteur (
Doc.
11425), since its foundation the Council of Europe has drawn
up more than 200 conventions and protocols which, after ratification
(or acceptance), become binding on member states under international
law.
2. The rapporteur notes that the Committee of Ministers and the
Parliamentary Assembly have acknowledged and defend the Council
of Europe’s major role in creating norms in the human rights field
in the widest sense and in the development of international law
through its treaties. This unique European role has been referred
to on a number of occasions at summits of heads of state and government.
3. One of the weaknesses of the Council of Europe treaty system
is that very few conventions have been ratified by all the member
states. Those that have include the European Convention on Human
Rights, the European Convention for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment, the European Cultural
Convention, the European Convention on Extradition and the European
Convention on the Suppression of Terrorism.
Note
4. The Council of Europe’s treaties cover practically all the
Organisation’s areas of activity. They vary in significance and
number of ratifications. It is of the utmost importance that at
least the essential treaties be ratified by all the member states,
with the fewest possible reservations.
2 The Council
of Europe as architect of the European legal area
5. As stated in the Assembly’s
Resolution 1547 (2007) on the state of human rights and democracy in Europe,
“The Council of Europe ... is the point of reference for and the
guardian of human rights, democracy and respect for the rule of
law in Europe. It possesses an array of effective control mechanisms,
among which the European Convention on Human Rights (ETS No. 5),
the European Convention for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (ETS No. 126), the European
Social Charter (ETS No. 35) and the Framework Convention for the
Protection of National Minorities (ETS No. 157) are at the forefront.
These instruments possess independent review bodies, such as the
European Court of Human Rights (the Court), unique in providing
for the international judicial protection of human rights. This
arsenal for human rights protection has been reinforced, notably
by the creation of the European Commission against Racism and Intolerance
(ECRI) and the institution of the Commissioner for Human Rights.”
6. Article 15 of the
Statute
of the Council of Europe authorises it to establish rules and standards through the
conclusion of conventions or agreements. This means that one of
the Council’s roles is to construct the European legal area.
Note The Council of Europe’s treaty
law is now made up of more than 200 treaties.
7. For more details, see the report on the specificity and added
value of the
acquis of Council
of Europe treaty law, prepared by Mr Jeremy McBride at the rapporteur’s
request.
Note
8. The fact that the European Union makes signing and ratifying
a significant number of Council conventions a condition for applicant
countries’ accession is evidence of the importance of the Council
of Europe’s treaty acquis.
However, Council of Europe treaty law is not just an entry ticket
to the European Union. These treaties have created a European legal
area that extends well beyond European Union members and candidates
for accession. Moreover, some are also open to ratification by non-Council
of Europe member states.
3 The Council of
Europe’s “core” treaties
9. When the Council of Europe celebrated its 50th anniversary,
the then Secretary General, Mr Daniel Tarschys, identified 51 instruments
that constituted the Organisation’s core treaties, the texts of
which were to be published in a single volume in each member state.
Already by then the Parliamentary Assembly regularly referred to
a much more limited list of core treaties, which are easily identifiable
in its opinions on the accession of new member states.
10. These divergences do not necessarily facilitate the integration
process for new member states, or the coherence of the Council of
Europe’s legal acquis.
11. Based on the Assembly’s previous work, the rapporteur believes
that the following conventions
Note can be identified as constituting
the Council of Europe’s core treaties.
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Human
rights (including minority rights)
1. Convention for the Protection of Human Rights
and Fundamental Freedoms (ETS No. 5): ratified by all the
member states
a. Protocol
No. 1 (ETS No. 9 – protection of property): not ratified
by Monaco and Switzerland
b. Protocol
No. 4 (ETS No. 46 – freedom of movement, prohibition
of expulsion of nationals and prohibition of collective expulsion
of aliens): not ratified by Greece, Switzerland, Turkey and United
Kingdom
c. Protocol No.
6 (ETS No. 114 – abolition of the death penalty): not
ratified by Russia
d. Protocol
No. 7 (ETS No. 117 – various: immigration legislation,
criminal law and equality): not signed by United Kingdom, not ratified
by Germany, Belgium, Netherlands and Turkey
e. Protocol No. 12 (ETS No. 177 –
general prohibition of all forms of discrimination): only 17 ratifications
f. Protocol No. 13 (ETS No. 187 –
abolition of the death penalty in all circumstances): not signed
by Azerbaijan and Russia, not ratified by Armenia, Italy, Latvia
and Poland
g. Protocol
No. 14 (CETS No. 194 – reform of the Court): not ratified
by Russia
2. European
Social Charter (ESC) / European Social Charter (revised) (ETS
No. 35 and ETS No. 163): Andorra, Liechtenstein, Monaco, Montenegro,
San Marino and Switzerland have not ratified either
a. Additional Protocol to the ESC (ETS
No. 128 – additional rights): only 13 ratifications of the 27 that
have ratified the ESC
b. Protocol
amending the ESC (ETS No. 142 – reform of the supervisory
machinery) (not yet in force): only 23 ratifications
c. Additional Protocol to the ESC (ETS
No. 158 – providing for a system of collective complaints): only
12 ratifications
3. European
Convention for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (ETS No. 126) and its amending protocols: ratified
by all the member states
4. Convention
for the Protection of Individuals with regard to Automatic Processing
of Personal Data (ETS No. 108): 41 ratifications, 3 signatures
not followed by ratification
5. European Charter for Regional or Minority
Languages (ETS No. 148): only 24 ratifications
6. Framework Convention for the Protection of
National Minorities (ETS No. 157): not ratified by Andorra, Belgium,
France, Greece, Iceland, Luxembourg, Monaco and Turkey
7. Council of Europe Convention on Action against
Trafficking in Human Beings (CETS No. 197): 15 ratifications,
26 signatures not followed by ratification
8. Council of Europe Convention on the Protection
of Children against Sexual Exploitation and Sexual Abuse (CETS
No. 201): 3 ratifications, 35 signatures not followed by ratification
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Legal
co-operation in criminal matters/Combating terrorism
9. European Convention on Extradition (ETS
No. 24): ratified by all the member states
a. Additional protocol (ETS No. 86
– prohibition of extradition for political offences and further
reference to the ne bis in idem principle): not ratified by Germany,
Austria, Finland, France, Greece, Ireland, Italy, United Kingdom, San
Marino and Turkey
b. Second
additional protocol (ETS No. 98 – further provisions):
not ratified by Andorra, France, Greece, Ireland, Liechtenstein,
Luxembourg and San Marino
10. European
Convention on Mutual Assistance in Criminal Matters (ETS
No. 30): ratified by all the member states
a. Additional Protocol (ETS No. 99
– redefines the provisions of the Convention): not ratified by Andorra, Bosnia
and Herzegovina, Liechtenstein, Malta, Monaco, San Marino and Switzerland
b. Second additional Protocol (ETS
No. 182 – cross-border crime and data protection): 19 ratifications,
17 signatures not followed by ratification
11. European Convention on the Suppression of
Terrorism (ETS No. 90): not ratified by Andorra
a. Amending protocol (ETS No. 190
– limiting the exceptions to the treaty’s provisions): 29 ratifications,
17 signatures not followed by ratification
12. Criminal Law Convention on Corruption (ETS
No. 173): not ratified by Austria, Germany, Italy, Liechtenstein,
San Marino and Spain
a. Additional
Protocol (ETS No. 191 – extending its scope to persons
exercising quasi-judicial functions): 25 ratifications, 10 signatures
not followed by ratification
13. Civil Law Convention on Corruption (ETS
No. 174): not ratified by 14 member states
14. Convention on Cybercrime (ETS No.
185): 26 ratifications, 20 signatures not followed by ratification
a. Additional Protocol (ETS No. 189
– criminalisation of racist acts): 15 ratifications, 19 signatures
not followed by ratification
15. Council of Europe Convention on the Prevention
of Terrorism (CETS No. 196): 22 ratifications, 21 signatures
not followed by ratification
16. Council of Europe Convention on Laundering,
Search, Seizure and Confiscation of the Proceeds from Crime and
on the Financing of Terrorism (CETS No. 198): 11 ratifications,
18 signatures not followed by ratification
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4 Fresh impetus for
the ratification process
12. The Assembly has already considered several reports
on certain member states’ failure to ratify core treaties. The Committee
on Legal Affairs and Human Rights regularly discusses this subject
in the context of ratification of the European Charter for Regional
or Minority Languages and the Framework Convention for the Protection
of National Minorities or of Russia’s failure so far to ratify Protocol
No. 14 of the European Convention on Human Rights. Too often, unfortunately,
member states display a lack of political commitment to ratifying
certain instruments.
13. The Assembly should call on all the member states, and not
just the new ones, to sign and/or ratify as soon as possible, as
a matter of priority, all the treaties identified as being in the
“core” category. Member states should report regularly on the progress
of the relevant procedures and where necessary explain to the Assembly,
in a spirit of dialogue, any difficulties encountered.
5 Declarations, reservations
and disconnection clauses
14. As Mr McBride told at the committee hearing on 1
October 2009, the declarations and reservations are so numerous
and varied that it is impossible to quantify their general impact
on the Council of Europe’s legal acquis (see
also paragraph 7).
15. The Assembly should again call on member states to sign and/or
ratify all the main Council of Europe legal instruments without
reservations or restrictive interpretative declarations and to withdraw
those already made.
Note It
should repeat its request to member states to withdraw their reservations
and derogations concerning Council of Europe treaties, particularly
the European Convention on Human Rights.
Note
16. Questions may also be raised about the relatively new practice
of including in Council of Europe treaties, at the request of the
European Union, so-called disconnection clauses. As Mr Anderson
explained at the committee hearing, these are clauses in multilateral
treaties that enable members of the European Union (or parties to
other bilateral or multilateral arrangements) to apply their own
rules to their mutual relations rather than those of the treaty.
17. However, the purpose of such clauses is not very clear, and
their scope even less so.
18. One is entitled to ask whether this practice constitutes a
form of blank cheque or whether European Union member states are
trying to avoid their obligations under Council of Europe instruments
or even replace the Council of Europe system with their own. The
initial idea was to enable the European Union to impose higher standards
but in practice there is a danger that such clauses will permit
the application of lower standards.
19. This is an extremely important issue, which the Committee
of Legal Advisers on Public International Law (CAHDI) has already
discussed.
Note
20. The rapporteur is concerned that disconnection clauses have
become common in recent Council of Europe conventions. The practice
has potentially significant and unforeseeable consequences and poses
a threat to the coherence of Council of Europe treaties and could
reinforce divisions in Europe.
Note
21. He therefore encourages the European Union itself to accede
to the Council of Europe’s conventions, giving priority – as provided
for in the Lisbon Treaty – to the European Convention on Human Rights.
This would probably reduce the need to resort to disconnection clauses.
22. He also encourages the Committee of Ministers to draw up strict
guidelines to control the use of disconnection clauses, and invites
it to base these guidelines on the criteria presented by Mr Anderson
at the committee hearing
NoteNoteNoteNoteNoteNoteNoteNoteNote and
the conclusions of the aforementioned CAHDI report.
23. Finally, in view of the Council of Europe’s unique role in
drafting rules and standards applicable to the entire continent
with a view to fostering a stronger Europe without dividing lines,
and of legal developments in the European Union, particularly the
emergence of framework decisions and community acts, the rapporteur asks
the Committee of Ministers to consult the CAHDI on whether it is
possible for the Council of Europe to adopt draft pan-European “model
acts” to complement its treaties. The introduction of this kind
of act could adequately complement the Council of Europe treaties.
International treaties indeed suffer from the slowness of the ratification
procedures.
6 Possible obsolete
or inappropriate treaties
24. Europe has undergone a profound transformation since
the adoption of the Council of Europe’s Statute in 1949. Many very
old treaties have fallen into disuse because they no longer reflect
the realities of society, which are constantly evolving, while others
have been deliberately replaced by more modern texts.
Note
25. Twenty-one Council of Europe conventions that are more than
twenty years old have never come into force for lack of the required
number of ratifications. Of these, 12 are actually over thirty years
old.
26. Should the Council of Europe consider the introduction of
a procedure for removing or withdrawing conventions?
27. The International Labour Organization (ILO) has already undertaken
such an exercise with the adoption, in 1997, of an instrument to
amend its constitution.
Note This provides that “by a majority
of two-thirds of the votes of delegates present, the Conference,
acting on a proposal of the Governing Body, may abrogate any Convention
adopted in accordance with the provisions of this article if it
appears that the Convention has lost its purpose or that it no longer
makes a useful contribution to attaining the objectives of the Organisation.” There
are various procedural conditions to ensure that no convention will
be abrogated unless there is very substantial support for the decision.
Abrogation applies to conventions in force.
28. However, the ILO also has a procedure for withdrawing conventions
that have never come into force. The ILO Conference has been deemed
not to require formal powers to withdraw conventions that have not come
into force because in such cases there are no constitutional obligations
between members or binding the organisation to its members. The
International Labour Conference thus withdrew five conventions in
2000 (Nos. 31, 46, 51, 61 and 66).
29. The Council of Europe should also consider these issues, and
include in its discussions the updating of certain conventions that
are already in force. This could take the form of one or more joint
meetings of the Assembly’s Committee on Legal Affairs and Human
Rights and the CAHDI and/or the various steering committees concerned.
If the Council of Europe’s legal acquis is
to retain its full value, and in order to avoid any threats to the
credibility of all the other Council of Europe conventions, these
treaties must continue to reflect present-day realities.
7 Conclusions
and recommendations
30. In its
Resolution
1547 (2007) on the state of human rights and democracy in Europe,
the Assembly noted that “While recognising that much progress has
been made in member states, there remains a need to reduce the gap
between standards on paper and the reality on the ground. The full
implementation of existing human rights in everyday life is an unfinished
task”.
31. The Assembly should launch a major campaign to secure ratification
of the main Council of Europe treaties. This would represent a powerful
new commitment by the member states (including the longest-standing
ones) to the organisation’s fundamental values.
32. The Assembly wishes to point out that if major treaties such
as those on trafficking in human beings and the protection of children
against sexual exploitation and sexual abuse, which add ground-breaking
provisions to existing international standards, do not secure a
sufficient number of member state ratifications, they will not have
the impact that the countries most affected by these problems urgently
await.
33. Steps could also be taken to make the Council of Europe treaty
system more effective. The Assembly should therefore encourage the
Committee of Ministers to give serious consideration, followed by
concrete action, to the possible withdrawal of treaties that have
not come into force after many years, or even the abrogation of
conventions that have become obsolete, as well as to updating conventions
that are still important but require certain changes. Finally, to
ensure the continued coherence of Council of Europe treaty law,
the Committee of Ministers should impose strict conditions on the
use of disconnection clauses.
***
Reporting committee:
Committee on Legal Affairs and Human Rights
Reference to committee: Doc. 11425, Reference 3395 of 21 January 2008
Draft resolution and draft recommendation unanimously
adopted by the committee on 26 January 2010
Members of the committee:
Mr Christos Pourgourides (Chairperson),
Mr Christopher Chope, Mr
Christoph Strässer, Mr Serhiy Holovaty (Vice-Chairpersons), Ms
Marieluise Beck, Ms Marie-Louise Bemelmans-Videc, Mr
Petru Călian, Mr Erol Aslan Cebeci,
Ms Ingrida Circene, Ms Ann
Clwyd (alternate: Mr John Prescott),
Mr Agustín Conde Bajén, Mr
Telmo Correia, Mr Joe Costello, Mr ArcadioDíaz Tejera, Ms Lydie Err, Mr Renato Farina,
Mr Valeriy Fedorov, Mr Joseph
Fenech Adami, Ms Mirjana Ferić-Vac,
Mr György Frunda, Mr Jean-Charles Gardetto, Mr József Gedei, Ms Svetlana
Goryacheva, Mr Neven Gosović, Ms Carina Hägg,
Mr Holger Haibach (alternate: Ms Anette Hübinger),
Ms Gultakin Hajibayli, Mr
Johannes Hübner, Mr Michel Hunault, Mr Rafael Huseynov, Mr
Shpetim Idrizi, Mr Aliosman Imamov,
Mr Želiko Ivanji, Ms Kateřina Jacques,
Mr Mogens Jensen, Mr András Kelemen,
Ms Kateřina Konečná, Mr Franz
Eduard Kühnel, Ms Darja Lavtižar-Bebler,
Mr Pietro Marcenaro, Ms Milica Marković, Mr Dick Marty, Ms Ermira
Mehmeti Devaja, Ms Chiora Taktakishvili (alternate: Mr Akaki Minashvili), Mr Philippe Monfils,
Mr Felix Müri, Mr Philippe
Nachbar (alternate: Mr Yves Pozzo di
Borgo), Mr Adrian Năstase, Ms Anna Ntalara, Ms Steinunn Valdís Óskarsdóttir, Mr
Valery Parfenov, Mr Peter Pelegrini (alternate: Mr József Berényi), Ms Marietta de Pourbaix-Lundin, Mr Valeriy
Pysarenko, Mr Janusz Rachoń, Ms Mailis Reps (alternate: Mr Aleksei Lotman), Ms Marie-Line Reynaud,
Mr François Rochebloine, Mr Paul Rowen,
Mr Armen Rustamyan, Mr Kimmo Sasi,
Ms Marina Schuster, Mr Yanaki Stoilov, Mr Fiorenzo Stolfi, Lord John Tomlinson, Mr Tuğrul Türkeş, Ms Özlem Türköne, Mr Viktor Tykhonov (alternate:
Mr Ivan Popescu), Mr yvind Vaksdal, Mr Giuseppe Valentino,
Mr Hugo Vandenberghe, Mr Egidijus Vareikis,
Mr Miltiadis Varvitsiotis,
Mr Luigi Vitali, Mr Klaas de Vries, Ms Nataša Vučković, Mr Dimitry Vyatkin, Mr Marek Wikiński, Ms
Renate Wohlwend, Mr Jordi Xuclà i Costa
NB: The names of the members who took part in the meeting
are printed in bold
Secretariat of the committee:
Mr Drzemczewski, Mr Schirmer, Ms Szklanna, Ms Heurtin
