C Explanatory memorandum by Mr Claude
Kern, rapporteur for opinion
1. The Committee on the Honouring
of Obligations and Commitments by Member States of the Council of Europe
(Monitoring Committee) fully agrees with the rapporteur’s conclusions
regarding the need to ensure the continuation in the long term of
a rules-based international order. It would seem worthwhile adding
that respect for international law and the obligations which States
have freely entered into is a key aspect of the rule of law. Strengthening
the rules-based international order is vital as a means of preventing
conflicts and ensuring that democracies based on the rule of law
flourish. Conversely, the inability or refusal of States to honour
the international obligations they have entered into undermines
the rules-based international order and, as underlined by Ms Vasylenko,
makes it more difficult for the international community to prevent
the outbreak of conflicts within and between States or to contain
them.
2. If full compliance with international law is to be more than
an empty slogan, the mechanisms that guarantee that the rules are
applied need to be strengthened. As demonstrated by a number of
monitoring reports, obligations, including rulings of the European
Court of Human Rights, are not always honoured or implemented. This
undermines respect for fundamental rights and the rule of law and
erodes the functioning of democratic institutions in the countries
concerned, while weakening the relevant conventions and the structures
established to implement them, thereby ultimately jeopardising the
rules-based international order.
3. That is the reason for Amendment A, which is to add, at the
end of paragraph 12.1, the following: “in particular by ensuring
full compliance with international law and the honouring of the
obligations stemming from the conventions to which they are parties.”
4. It is vital for the credibility of the Council of Europe as
an organisation and for the convention system as a whole that those
member States which fail to honour certain obligations, above all
the execution of the judgments of the European Court of Human Rights,
be reminded of their commitments. This was pointed out in the Reykjavík
Declaration, which refers to member State’s “unconditional obligation
to abide by the final judgments of the European Court of Human Rights
in any case to which [they] are Parties.”
5. The Parliamentary Assembly could review the sanction mechanisms
at its disposal for ensuring that States honour their obligations:
while, as the draft resolution rightly points out, “the Assembly
also underscores the importance of the complementary joint procedure,
enabling the Council of Europe’s statutory organs to take action
together in case of a blatant violation by a member State of its
obligations under the Statute” (paragraph 9 of the draft resolution),
this procedure must, of course, be confined to the most serious
violations. It must be possible to use other, less severe measures
to improve States’ honouring of their obligations. For instance,
in
Recommendation 2252
(2023) “Implementation of judgments of the European Court of
Human Rights”, paragraph 2.2, the Assembly recommends that the Committee
of Ministers “undertake further work to develop a clear toolkit
for assisting co-operation and increasing pressure on States, in
order to encourage them to take timely action to implement the judgments
of the European Court of Human Rights; this toolkit should include
a range of different measures and techniques that could be potentially
deployed, as required, in different situations depending on the
seriousness and complexity of the issue as well as on the type of
barriers that might exist to timely and effective implementation;
such a toolkit should be an evolving document to include new techniques
and best practice as experience develops; a creative approach should
be applied in terms of tools and bodies that might assist in these
endeavours”.
6. The Monitoring Committee believes that such a toolkit should
also be used to encourage States to honour obligations other than
just Court judgments. The Assembly should start discussions with
a view to developing such a toolkit for cases where the obligations
whose honouring is to be encouraged fall within its own remit. In
the course of their work, the Monitoring Committee and its Sub-Committee
on Conflicts concerning Council of Europe Member States are accustomed
to taking account of different situations depending on the seriousness
and complexity of the issue and the barriers to timely and effective implementation.
To some extent, the finding in monitoring reports of unlawful conduct
by States or of failure to honour their obligations amounts to an
initial warning, which serves as an initial means of pressure. Its effectiveness
largely depends on the publicity given to the reports. In terms
of early warning, however, monitoring reports have included the
necessary warnings but have not received the attention that these
issues deserved.
7. Paragraph 13.2 of the draft resolution calls on the Assembly
to “contribute to the Council of Europe’s efforts on early warning
in order to address situations which risk posing a threat to the
rule of law, democratic security and good neighbourly relations.”
The explanatory memorandum stresses that the Council of Europe has
achieved significant progress in observing developments in its member
States, especially through the work of the Monitoring Committee
and the Commissioner for Human Rights (paragraph 31).
8. The Monitoring Committee’s work has already led to several
unequivocal warnings being sounded, using the existing tools. For
instance, in the case of the Russian Federation’s aggression against
Ukraine, as far back as 2014, it was stated in report (
Doc. 13482 paragraph 86) on “Recent developments in Ukraine: threats
to the functioning of democratic institutions” that “[t]here are
fears that the Russian intervention in Ukraine will not stop with
Crimea. In several statements President Putin has announced that
Russia will protect the interests of the Russian minority also elsewhere
in the territory of Ukraine. The Donbas area, which is home to most
of Ukraine’s arms industry, as well as the Odessa region, are potentially
at risk of Russian military intervention and occupation. The occupation
of the Odessa region would bring Ukraine’s access to the Black Sea
fully under Russian control and would provide Russia with a direct
land corridor to Transnistria, which is under
de facto Russian
control. In this context, it should be noted that, on 17 February
2014, the
de facto authorities in
Tiraspol announced that they would soon make a formal request to
join the Russian Federation as a new entity.”
9. The report (
Doc. 13483, paragraph 55) on “Reconsideration on substantive grounds
of the previously ratified credentials of the Russian delegation”
was explicit about the fears concerning the consequences of the Assembly’s
inaction: “There is understandable anxiety in some Council of Europe
member States which have large Russian minorities within their borders.
I have no doubt that they will follow the debate on the Russian credentials
very carefully: if using the false pretext of the need to protect
a minority can go unpunished even in the ‘House of Democracy’, it
is a bad prognostic for their future.”
10. The report went on to state (paragraph 64): “All the violations
evoked in paragraphs 58-63 of the present memorandum may have very
serious consequences for stability and peace, not only in Ukraine
but also in other neighbouring countries, and, indeed, in Europe
as a whole. All the Council of Europe member States are concerned.”
11. Moreover, while the report on “The consequences of the war
between Georgia and Russia” (
Doc. 11724, paragraph 7) stated that “[w]hile the escalation of
the conflict into a fully-fledged war between Georgia and Russia
came totally unexpected,” it immediately added that “tensions between
the two countries had been seriously escalating for some time before
the outbreak of the war. It is clear that the war between Russia
and Georgia did not start on 7 August 2008.”
12. As these examples show, the early warning mechanisms did produce
the necessary warnings and alerted the members of the Assembly and
the public at large. However, they did not lead to any decisions
by the Assembly or the Council of Europe. In our view, it is at
that stage that improvements need to be made. It is necessary to
determine when concerns should give rise to alerts or warnings and,
if warnings are issued, how to translate them into follow-up measures
to effectively reduce tensions.
13. That is the reason for Amendment B, which is to “strengthen
the capacity of the Monitoring Committee, in particular in terms
of early warning, in line with the conclusions of the 2023 Council
of Europe Summit, and give consideration to mechanisms to ensure
that due account is taken of such early warnings.”
14. We believe that the profile of monitoring activities needs
to be raised so as to boost their impact. The expert report, “The
Pursuit of Undivided Europe”
Note, already called for
more robust use to be made of the Council of Europe’s monitoring
mechanisms. The Council of Europe’s various monitoring mechanisms
produce reports of a very high standard. The synergies between the
various monitoring bodies have improved significantly and the reports
by the Assembly’s Monitoring Committee draw together the conclusions
reached by all the Council of Europe bodies, put them in the political
and historical context of the relevant countries and present them
to the Assembly for public debate when circumstances so warrant.
With this monitoring procedure, weak signals can be detected and
warnings sounded when necessary. However, as the above examples
show, these reports do not receive the necessary attention and are
drowned out by a mass of other documents, which greatly reduces
their impact for the States concerned.
15. The committee believes that the impact of its work could be
substantially improved if its profile were raised. Access to the
relevant information could be improved by optimising the use of
IT, for instance with a web page that gave quick access to all the
Committee’s work, broken down by country. It also seems vital for the
Monitoring Committee’s reports to be made available in the official
languages of the States concerned, so that the public there can
study and debate them. In addition, rapid response capacities need
to be strengthened to enable the Monitoring Committee to address
new or rapidly evolving situations. A higher profile for the Monitoring
Committee’s work would be a form of pressure on States failing to
honour their obligations. Lastly, the Monitoring Committee encourages
the Assembly to develop the “toolkit for assisting co-operation
and increasing pressure on States” to improve compliance in terms
of the execution of the Court’s judgments and extend its use to
the other obligations entered into at the Council of Europe.
