The Assembly,
Considering that the aim of the Council of Europe is to achieve a greater unity between its Members, one means of attaining which is the conclusion of internation altreaties;
Considering that such international treaties cannot be fully effective unless their application rests on a uniform interpretation;
Being resolved to take steps t o this end, without prejudice to the constitutional systems of the Contracting Parties;
Considering that it is fitting that the Europe an Court of Human Rights set up by the Convention for the Protection of Human Rights and Fund amental Freedoms, signed in Rome on 4th November 1950, should be competent to render advisory opinion on the interpretation of European treaties,
Recommends to the Committee of Ministers :
The Governments signatory hereto, being Members of t h e Council of Europe,
Considering that the aim of the Council of Europe is to achieve a greater unity betwee n its Members, one means of attaining which is the conclusion of international treaties;
Considering that such internation l treaties cannot be fully effective unless their application rests on a uniform interpretation;
Being resolved take steps to this end, wit hout prejudice to the constitutional systems of the Contracting Parties;
Considering that it is fitting that the European Court of Human Rights , set up by the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4th November 1950, (hereinafter referred to as the European Convention on H u m a n Rights), should be competent to renderadvisory opinions on the interpretation of European treaties,
Have agreed as follows :
The High Contracting Parties shall recognise, in accordance with the provisions set out below, the competence of the Europe an Court of Human Rights to give advisory opinions on the interpretation of any European convention or other international treaty to which two or more of them are parties.
European Interim Agreement on social security schemes relating to old age, invalidity and survivors, signed in Paris on 11t h December 1953;
European Interim Agreement on social security other than schemes for old age, invalidity and survivors, signed in Paris on 11th December 1953;
European Convention on Social and Medical Assistance signed in Paris on 11th December 1953;
European Convention on Formalities required for Patent Applications, signed in Paris on 11th December 1953;
European Convention on Establishment, signed in Paris on 13th December 1955.
The Court shall notify its advisory opinions to all the Contracting Parties to this Agreement and to the other Parties to the international treaty in respect of which an advisory opinion has been rendered.
For the exercise of the functions conferred on it by this Agreement the European Court of Human Rights shall draw up its rules and determine its procedure.
1. On 22nd October 1957, supported by several others , Is ubmitted to the Consultative Assembly a motion for are commendation on the establishment of a European Supreme Court to hear cases of breaches of European Conventions even when brought by individuals (Doc. 737).
This motion was referred to the Legal Committee which, after a preliminary study of it, reached the following decision at its meeting at The Hague on 9th and 10th June 1958:
" The Legal Committee,
Noting the proposal in Doc. 737;
Considering that it would be premature to adopt a definite position regarding the subject-matter of this proposal,
Decides to appoint a Sub-committee to consider appropriate measures to avoid divergencies in the legal interpretation of uniform European law or of legal conflicts :
The Sub-committee would specify to which conventions the measures it recommended were to apply, which legal body should b e granted the proposed competence and under what conditions disputes should be referred to it."
Inpursuance of that decision, the Sub-committe e drew up are port, which was approved by the full Committee on August 21st and is now submitted to the Assembly. It contains a draft European Agreement on this question, together with the necessary explanations.
2. Before commenting upon the clauses of the draft Agreement, I should like to call you rattention to three guiding principles followed by the Sub-committee in preparing this draft.
The first is the respect for the constitution s of member States, in order to offer every one the possibility of adhering to the uniform system of interpretation herein advocated.
Therefore, on the whole, the draft deals only withan " optional system " of uniform interpretation and proposals for " advisory opinions "from the body competent to give a uniform interpretation; opinions which, moreover, will not be binding upon national courts.
The second leads me to propose entrusting the competence of uniform interp retation of treaties to an existing Europe an body—the European Court of Human Rights. This would enable t h e Committee's objective to be much more easily achieved and relieve member Governments of the need and cost of setting up new machinery.
The third principle followed by the Sub-committee in the preparation of the draft is to avoidany over lapping of competence with the International Court at The Hague. Thus it will be recalled that only States are empowered to apply to The Hague Court, where as the present draft provides that national judicial authorities may bring a matter before the Court of Human Rights. Furthermore, as regards the competence of The Hague International Court in regard to advisory opinions, it should be noted that, according to Article 96 of the United Nations Charter, only the General Assembly and t h e Security Council or t h e Specialised Agencies are empowered to seek an advisory opinion. Under that system, therefore, there is no provision for are quest for an opinion by a national judicial or administrative authority.
3. In the preamble, the reasons are given which militate in favour of creating with in the Council of Europe a system of uniform interpretation of treaties.
The preamble provides that the interpretation shall be entrusted to the European Court of Human Rights. That Court is, indeed, te body best quelified to perform this task
In this respect it is interesting to note that the European Court of Human Rights consists of a number of judge s equal to that of the Members of the Council of Europe. This provides a guarantee that all legal tendencies in t h e diverse systems of law of member States will be represented on this judicial body . Moreover, the Convention lays down that judges of the Court shall be of high moral character and that they must either possess the qualifications required for appointment to high judicial office or be juris consults of recognised competence. Since, too, the European Court of Human Rights is unlikely to be overburdened with work, it offers man y advantages for the role we wish to confer upon it.
4. Article 1 gives the grounds for recognising the special competence of the European Court of Human Rights to interprettreaties. It is stipulated, moreover, that its competence shall be limited to " advisory opinions ".
5. It must be left to each Contracting Party freely to decide for which treaties, to which it is aparty, it accepts the system of uniform interpretation proposed.
Nevertheless, to ensure that each Contracting Party accepts such an interpretation at least so far as Agreements concluded within the Council of Europe are concerned, it has been deemed useful to include in Article 2 a special clause (paragraph 3) listing the European treaties to which the system of uniform interpretation would automatically apply in relation to the Courts of each Contracting State, provided that the State concerned in a party to the treaty in queston.
The European Agreements mentioned have been selected according to two criteria. First, the Sub-committee chose those which the national courts of the Contracting Parties might be called upon to interpret . Second, it was decided not to select the setreaties, such as the Convention on Human Rights and the E.C.S.C, Common Market, Euratom and Benelux Treaties, which themselves provide for a system of uniform interpretation at the request not only of the Governments but of the individual s concerned and of the national courts.
6. Article 3 lays down aprocedure for bringing am atter before the Court. It will be noted that the text does not restrict the right to apply to the Court for an advisory opinion to the judicial authorities of Contracting Parties but has extended that right to administrative authorities, since in some countries the application of treaties is a matter for the administration. This is true, in particular, in several countries, of decisions on m atter of guardianship.
To ensure a truly uniform interpretation, the Committee thinkst bat application by a national authority to the European Court for an opinion, which is optional under the terms of paragraph 1, should be made compulsory in cases where the decision of t h e national authority would differ in its interpretation of aparticular treaty from a ruling given by the competent authority of an other Contracting Party in respect of the same treaty.
This is the intention of paragraph 2 of Article 3.
I t should be noted that the Governmen t which transmits the request for an advisory opinion has no right of supervision over that request; it will act only as t h e channel of communication between the national court concernedand the European Court.
7. As already stated, the Committee suggests t h a t the competence conferred on the Court by Article 5 in the matter of treaty interpretation should be limited to giving advisory opinions. It has done this in order to ensure that all Member States of the Council of Europe are able to accede to the draft Agreement . This proposal contains nothing which would adversely affect the constitutional practices of Member States and in particular discards the idea of a European Court super imposed on the national courts and with the power to a certain extent to reverse their judgments.
However, in order t h a t opinions given by the Court shoul dreta in the irvalue, national courts should be obliged to give reasons for their final decision should this differ from the opinion of the Europea n Court.
8. In Articles 4 and 6, the Committee proposes that all requests for an advisory opinion as well as the actual opinions rende red by the Court shall be notified to all Contracting Parties to the Agreement, as well as to the other partie sto the treaty in respect of which the opinions have been rendered. This procedure seems essential for the proper working of the interpretation system advocated in the present draft. Indeed, if the Court's opinion on a question concerning the interpretation of atreaty were not published, the national authority, other than that which requested opinion, would have no knowledge of the opinion rendered by the Court, if subsequently called upon to deal with a similar question.
9. There are various possible ways of conferring on the Court the powers provided for in the present draft. The Committee favours that laid down in Article 8 of the a bove text . It has the great advantage of corresponding closely to a formula a lready used in the Council of Europe, namely Article 7 of t h e First Protocol to t h e General Agreement on Privileges and Immunities. The entry into force of the Agreement, and hence the extension of the competence of the Europe an Court of Human Rights, are made subject to the approval of all the Contracting Parties to the Convention on Human Rights, this approval being essential for the system outlined in the present draft. The Court could not agree to an extension of its functions unless this is approved by all the Contracting Parties to the Convention on which its competence depends.