The council of Europe; less can be moreOctober 10, 2005 - nr.33
The AIV’s reply to the questions raised in the request for an advisory report on the added value of the Council of Europe and its role as a binding factor in tomorrow’s Europe is positive. The Council’s future will lie in the area in which it has traditionally excelled and for which it is universally respected, namely the maintenance and further realisation of human rights, the rule of law and democracy. This option acknowledges that in addition to the Council of Europe there is an OSCE which since the fall of the Berlin Wall has largely ceased to be bedevilled by East-West confrontation. It also acknowledges the forthcoming enlargement of the EU to a total of 25 member states. As a result, there will be an increasing overlap between the EU and the Council of Europe as regards both numbers of members and relevant areas of activity. All this leads the AIV to conclude that it would be a good thing if the Council of Europe were to focus on the aforementioned core tasks. Cooperation with other organisations operating in the areas covered by the core tasks is of course advisable, provided it is more than just cooperation for its own sake. As a pan-European body, the Council of Europe can indeed be a binding factor, a forum for discussion and an ‘antechamber’ for decision- making in many areas. In other areas it will be necessary to examine which organisation is best suited to carry out the tasks in question and what forms of coordination and information exchange are most appropriate. The AIV believes that such an outlook offers the Council of Europe’s member states, and the Council itself, the best chance of contributing to stability and the quality of law in European society.
Since it was first established in 1949, the Council of Europe has accumulated an extremely broad range of tasks. The AIV observes that many of these activities are extremely valuable. However, such is their breadth that they threaten implementation of the Council’s core tasks, which the AIV has summed up as promotion of democracy (including assistance for ‘new’ member states), promotion of the rule of law, protection of human rights, protection of the rights of minorities and persons belonging to them, preservation and promotion of cultural values and diversity, and assistance for new democracies. This breadth of activity is due to the original goals that the Council was set up to achieve back in 1949 and the way in which these tasks have subsequently been implemented by steering committees, the Parliamentary Assembly, the secretariat and the Committee of Ministers. These players have not always been able or willing to ensure that the entire range of activities remains coherent and linked to the organisation’s core tasks. In this connection it should, however, be noted that a number of matters which do not at first sight appear to be among the Council’s core tasks sometimes turn out to be so on closer examination.
Since the AIV is naturally unable, within the limits of this advisory report, to examine systematically the full range of the Council’s activities and the way in which they are now carried out, it recommends that the Government:
- To focus on sharpening up existing activities and enforcing and effectively applying the Council's monitoring mechanisms.
- To set up an interministerial group of experts in order to draw up a practical guide as to what should and should not be given priority in Strasbourg, on the basis of operationalised criteria and contraindications. The group should be guided by the criteria stated in this report (which may need to be tightened up): (a) is there a direct and immediate link between the core tasks and the activity that has been undertaken or envisaged, (b) is the decision to carry out the activity necessary, (c) is the activity beneficial and (d) can it be carried out successfully?
- To make a ‘quick scan’ of the 192 treaties, separately from the systematic assessment described above, to identify those that have been ratified by only a small number of states and are not partial agreements. Such treaties could, after careful assessment, be shelved.
Core and non-core tasks: a ‘Wider Europe’
The AIV is very well aware that the Council is used by a large number of countries (and NGOs) as a platform for discussing issues that they cannot raise anywhere else – because they are not members of the EU, for instance. However, some of these issues do impinge on the Council’s core tasks but have aspects where the link is non-existent or, if it exists, seems forced. Examples include cloning, bioethics, measures to combat football hooliganism, cross-border television, doping in sport, the use of certain detergents and various activities in the field of development cooperation and the environment. Such issues can be considered part of the Council’s core tasks only if one takes the view that ‘everything is related to everything else’ – a fatal principle even for an international organisation such as the Council of Europe, and one that if strictly applied would result in a totally unmanageable range of tasks. Moreover, the distinction between the Council and the EU and organisations such as the OSCE would become blurred.
Having said this, the AIV feels that countries which consider such issues important – and whose continuing interest in the Council of Europe is partly or even largely based on this! – should be able to use the Council as a platform for discussing them. In such cases, however, the issue should always be approached from a typical Council of Europe angle – for example, the debate within the Council on measures to combat terrorism could emphasise the human rights angle, which could then be used to confront and ‘feed’ other organisations operating in this area (the UN, the OSCE and the EU) – or else an attempt should be made to draw up a partial agreement. The latter is a way of making clear that the activity in question is not actually the Council of Europe’s business, since it is not part of its core tasks, but that the Council happens to be the best, or only, place to discuss it.
- The AIV recommends the Government not to overlook the Council’s broader significance to a number of countries, over and above its core tasks, and to make sparing use of the partial agreement instrument in this connection.
The Council of Europe and member states’ own responsibility
The many activities undertaken by the Council of Europe do not absolve the member states of their responsibility to ensure that they have their houses in order in such matters as the quality of judicial procedures or the protection of national minorities and persons belonging to them (to mention just two examples). The Council can, and frequently does, assist countries with this but cannot in the final analysis take over the member states’ own responsibility, not only because that would be wrong in principle but also because the Council would get into great difficulties as a result. An example of this is the European Court of Human Rights’ excessive workload. The additional legal protection offered by the Court would be considerably less time-consuming if the member states made sure that their legislation and judicial practices really do meet the standards they themselves have agreed on within the Council.
- The AIV recommends the Government to continue emphasising member states’ own responsibility to fulfil their commitments faithfully and willingly. States must be constantly called to account for this. This also means constantly calling upon countries to ratify at least the Council’s core treaties, and in this connection the Netherlands should set a good example.
Use of existing instruments
Over the last five-and-a-half decades the Council of Europe has built up a considerable array of implementation and monitoring mechanisms. Before the Government considers the possibility of tightening these up (see the next recommendation), it is important to ensure that the existing instruments are actually used, and used more effectively than is now often the case. Examples include the right to lodge inter-State complaints under the ECHR and the Committee of Ministers’ role in supervising the execution of judgments handed down by the European Court of Human Rights. As regards the right to lodge inter-State complaints, the AIV notes that, while states rightly view this as a heavyweight instrument, it may sometimes need to be used in order to sustain and enhance the Council’s credibility. Failing this, countries may too easily gain the impression that when it comes down to it the Council has no real teeth, and its values may be undermined as a result. The same is true if the Committee of Ministers applies double standards when supervising the execution of judgments or a majority of ministers simply declines to act.
- The AIV recommends the Government to make full use of existing instruments wherever this is desirable from the point of view of the Council’s core values and its credibility, which is of crucial importance both internationally and for forthcoming generations of Europeans.
Improvement of existing instruments
The existing instruments, ranging from possible proceedings before the European Court of Human Rights in Strasbourg or a visit to a state by the CPT to a report by the Advisory Committee on National Minorities, were always developed at a particular time, under a particular political constellation and with the then prevailing wisdom and practical problems in mind. In other words, these mechanisms are not ‘set in stone’, and their effectiveness must be assessed at regular intervals. A good example is the unavoidable further review of the European Court of Human Rights’ procedures. However, other less conspicuous mechanisms also deserve closer inspection. Examples include not only the Council’s purely legal procedures, but also quasi-legal ones such as those under the European Social Charter and the Framework Convention for the Protection of National Minorities, as well as the political and/or diplomatic instruments applied by the Parliamentary Assembly, the Council of Europe Commissioner for Human Rights and the Committee of Ministers. When existing instruments are evaluated, moreover, it may be found that the Council lacks some of the things it needs in order to operate efficiently. For example, it may turn out that a greater on-the-spot presence is required, even though joining OSCE missions is not always an option.
- The AIV recommends the Government – in keeping with a tradition which it believes the Dutch Government should uphold and which is also in accordance with Article 90 of the Dutch Constitution (‘The Government shall promote the development of the international rule of law’) – to commission a study of the importance and effectiveness of existing instruments during the Dutch Chairmanship.
- The AIV also recommends the Government to take action of its own where this is possible in the light of recent discussions on the various monitoring mechanisms. Examples include the proposal that the CPT be allowed to make longer visits to states.
The European Court of Human Rights
Whereas the previous recommendation was concerned with medium-term prospects, the debate on the review of the working procedures and organisation of the European Court of Human Rights clearly requires the Dutch Government to adopt a position in the short term. In this connection the AIV recommends that:
- The Government continue to see the Court’s role in the development of law and its legal protection role as important and necessary.
- the Government play an active, stimulating role in the debate and be primarily guided by arguments based on substance and efficiency rather than financial/economic motives or politically motivated arguments whose aim is to reduce individual legal protection.
- Specific efforts be made to strengthen implementation of the ECHR at national level, especially in order to reduce the Court’s workload.
- Solutions be found for the workload problem, in particular by establishing a fifth Section and recruiting additional Registry staff so that the approximately 90 of cases that are inadmissible can be processed more quickly. The AIV does not consider introduction of the requirement that the applicant must have suffered ‘substantial disadvantage’ to be a desirable solution.
The AIV also reiterates the recommendations it made in earlier advisory reports that the EU should accede to the ECHR. Here again, it is important that the European Court of Human Rights be in a position to deal with cases that are already pending or will come before the Court in the future within acceptable periods of time. It also seems likely that applications lodged against the EU and its institutions will raise new legal problems that will consume a good deal of the Strasbourg court’s energy and hence time.
The Council of Europe Commissioner for Human Rights and the secretariat
Another instrument worthy of attention is that of the Commissioner for Human Rights. The AIV believes it is very important for the mandate and its implementation to be systematically evaluated after the first period. The problems the AIV has already pointed out in connection with the Commissioner concern, among other things, the exchange of information between the Commissioner and the secretariat, communication between the Commissioner and the Committee of Ministers, and the possibility that the Commissioner could play a much greater role in supervising the execution of judgments of the European Court of Human Rights, reducing or helping to reduce the number of cases brought before the Court and following up reports and judgments.
- The AIV recommends the Government to encourage a timely, systematic evaluation of the Commissioner’s mandate and its implementation and to ensure that, where necessary, the evaluation leads to specific recommendations on the wording of the mandate, its manner of implementation, its organisation and a profile of the next official to be appointed.
The AIV acknowledges the secretariat’s dynamic, high-quality performance. However, some of its activities seem to be focused on maintaining its own position rather than supporting and defending the interests of member states, and its procedures have all the hallmarks of cumbersome bureaucracy. The AIV believes that many of the perceived shortcomings in the operation of the Council of Europe secretariat can be remedied by reviewing its procedures and giving things a good shake-up.
- The AIV recommends the Government to critically examine the position and role of the secretariat in the implementation of programmes, decision-making procedures and budgetary appropriations. Current efforts to achieve a better staffing policy, with the emphasis on internal flexibility and above all quality, should also be firmly supported.
Cooperation with other European organisations
The mandates of the organisations described above overlap in many areas. In itself this is understandable, and the AIV sees no reason for great concern provided the organisations focus closely on the interests they were originally set up to defend and aim for complementarity. What does worry the AIV is that the ‘old’ member states, in particular, are showing little interest in this still very important role of the Council and in the way it is run and have switched their attention to other fora. At the same time the AIV believes that considerable benefit can still be derived from cooperation between the organisations in attaining these often shared goals. Many of the driving forces within organisations – in the case of the Council of Europe, the aforementioned list of steering committees, the Parliamentary Assembly and its members, the secretariat and the Committee of Ministers – always tend to think in terms of their own organisation rather than in terms of problems that require a solution and need to be tackled jointly. In fact, there are already numerous examples of effective cooperation between the various organisations – see the relevant sections of the report for a series of examples – but there are plenty of opportunities for improved coordination and synergy. Furthermore, the Council should be prepared, on the basis of the substantive and procedural criteria set out earlier in this report, to leave some tasks to other organisations or accept that some problems should be handled by a more specialised agency. The Council can then concentrate on the areas in which it excels. The AIV therefore recommends the Government:
- Always to bear in mind, when considering the possible transfer of tasks or institutional cooperation, that relations between the various organisations will always be ambiguous: close cooperation and synergy versus competition and a tendency to expand their own area of activity. The proliferation of similar, often largely overlapping activities and organisational structures among the organisations needs to be critically examined, and the answer should not automatically be sought in institutional cooperation, for this will not solve all the problems. The cooperating partners should focus closely on the interests they were originally set up to defend and aim for complementarity, while guaranteeing exchange of information, preservation of expertise and adequate monitoring.
- To base the necessary critical assessment of the full range of the Council of Europe’s activities and structures (even in areas that the AIV believes are among the Council’s core tasks) on the criteria indicated by the AIV.
The question of money
The Council of Europe has relatively little funding and cannot possibly carry out all its activities on its current budget. Despite this, the organisation has been compelled to adopt a zero-growth policy, and governments are unlikely to consent to additional funding even if the Council’s core tasks (such as the operation of the European Court of Human Rights) are threatened. Unlike governments, the AIV questions the wisdom of zero growth if the organisation is to carry out its core tasks efficiently. Moreover, the idea of a leaner Council of Europe must not create the impression that further cuts in funding are possible. On the contrary, the AIV feels that present funding is sorely needed if the Council is to fulfil its mandate in a way that is credible within Europe and set the rest of the world a good example. What is more, the Council will have to make certain changes if it is keep up with the times and offer appropriate answers to current problems. This too will cost money. The AIV believes that a combination of maintaining areas that are now running well, being prepared to cut out those that are not, refusing to incur obligations that are not part of the organisation’s core tasks and adapting the organisation to changed or changing insights will be the key to an even more successful future for the Council of Europe.
F. Korthals Altes
Chairman, Advisory Council on International Affairs
2500 EB Den Haag
7 January 2003
Dear Mr Korthals Altes,
I hereby submit a request for an advisory report in connection with the forthcoming Dutch Chairmanship of the Council of Europe, from November 2003 to May 2004.
With the establishment of the Council of Europe in 1949, Europe created an organisation which focuses on all major European issues, with the exception of defence. The initially West European membership has now been expanded to include virtually all Central and East European countries.
The Council of Europe is best known for its activities in the field of human rights and the rule of law. Numerous conventions and treaties have been drawn up in these policy areas, including the Convention for the Protection of Human Rights and Fundamental Freedoms.
The Council of Europe is also active on issues such as migration, social cohesion and social development, minorities and their languages, public health, education, culture, the media, sport, young people and the environment. A large number of international agreements have been drawn up under its auspices in these areas, too. The continual exchange of experience and views between experts from its members’ capital cities has brought about a form of intergovernmental cooperation which, with its virtually pan-European nature and the expertise developed over the years, has come to function as the preliminary stage of the European Union’s decision-making on many issues.
Besides setting standards and contributing to policy-making, the Council of Europe also monitors the implementation of the accession criteria by new member states, and compliance with the acquis by existing member states.
The Council of Europe, EU and OSCE all work for democracy, human rights and good governance. The enlargement of the European Union and the debate within the Union on institutional issues have therefore also attracted the interest of the Council of Europe. Steps must be taken to prevent new dividing lines being created between EU member states and non-member states in post-enlargement Europe. Given the above developments, and in light of the forthcoming Dutch Chairmanship of the Council of Europe, the following question has arisen.
What is the precise strength and added value of the Council of Europe in relation to the OSCE and the EU?
A second, broader, question that might be considered is: is the Council of Europe a binding factor within or outside the European Union and/or is there a new role for the Council of Europe beyond the current borders of a ‘Wider Europe’?
I look forward with interest to reading your views on the above matters. I would be grateful to receive your report on the first question within six months, so that it can be used in the preparations for the Dutch Chairmanship of the Council of Europe, which is due to commence in November 2003.
J.G. de Hoop Scheffer
Minister of Foreign Affairs
To the President of the
House of Representatives
of the States General
Binnenhof 4, Den Haag
Council of Europe Task Force
2500 EB Den Haag
|Date:||2 March 2004|
|Re:||Government's response to AIV report on the Council of Europe|
Dear Mr Weisglas,
On 24 October 2003, the Advisory Council on International Affairs published its report 'The Council of Europe: less can be more'. In response to your request of 20 November 2003, reference 03-BuZa-76, an interministerial working group has been working hard on a response from the government.
Together with the Minister of the Interior and Kingdom Relations, the Minister for Government Reform and Kingdom Relations, the Minister of Justice, the Minister for Immigration and Integration, the Minister of Agriculture, Nature and Food Quality, the Minister of Education, Culture and Science, and the Minister of Health, Welfare and Sport, I would now like to present to you the government's response to the AIV report 'The Council of Europe: less can be more'.
Minister of Foreign Affairs
AIV Advisory Report: Less Can Be More
I would first like to express my thanks and appreciation to the AIV for its report on the Council of Europe. The report's thought-provoking ideas and suggestions encourage reflection about the Council of Europe's role in the landscape of European institutional cooperation.
In anticipation of the upcoming Dutch Chairmanship, the Advisory Council on International Affairs (AIV) was asked in January 2003 to prepare an advisory report on the Council of Europe. The request was directed at the issue of the Council's precise strength and added value in relation to the European Union (EU) and the Organisation for Security and Cooperation in Europe (OSCE). Among other issues, the AIV was asked to review the Council's role as a binding factor. Greater insight into the Council's position and tasks was also sought in connection with the Strasbourg discussion on a Third Summit of the Council of Europe planned for 2005 at which its future responsibilities will be high on the agenda. The Summit is expected to provide impetus to the organisation. The AIV report thus helps the Netherlands to make a substantive contribution to international reflection on the future of the Council within the context of European multilateral cooperation.
The report is an introduction to and inspiration for the development of a more comprehensive image of the Council. The Council's tasks, functions and most important areas of responsibility are thus examined below, including its institutions and working relations with other organisations.
The AIV presents its view on the tasks which must be entrusted specifically to the Council. Though they are already being carried out, in view of the many expectations the Council must satisfy, they have received relatively little attention. By emphasising the core activities which the AIV recommends, the report reflects the importance the Netherlands attaches to strengthening the judicial foundation of the international legal order. Specifically, the report focuses on the operation of the Court (whose relevance is beyond dispute) and monitoring activities. Conversely however, the report is somewhat limited in its examination of several areas of interest, namely the type and scope of intergovernmental cooperation, the tasks and operation of the other important institutions, and the Council's cooperative relations with other international organisations. This results in a picture of the Council's areas of responsibility which is somewhat out of balance.
Background of the Council of Europe
The AIV correctly places its report within the historical context of the Council's original mission: re-establishment and development of structural European cooperation. Cooperation has now been fully re-established but the ongoing development of European cooperation remains a topical issue for Europe in 2004.
Over time, the work of the Council has continued to broaden. Given budget constraints, the proliferation of tasks has become problematic. It is no longer possible to finance all its work and overstretch has begun to cloud essential tasks and objectives. This does not encourage transparency in Europe-wide activities and obfuscates the Council's specificity compared with other institutions active in Europe today. Setting priorities and concentrating on core tasks is thus desirable.
Unlike in 1949, East-West confrontation is no longer an issue. Cooperation now is genuinely pan-European. Outside the Council, the EU, with which the Council maintains a close cooperative relationship, has witnessed significant deepening of multilateral cooperation. The EU, OSCE and NATO are now active in the area of European security. In view of the fact that similar fundamental principles were the impetus for creating the Council, the EU and the OSCE, many of their responsibilities are also similar, which has given the impression that they overlap. Where overlapping is undesirable, some activities need to be phased out.
The AIV notes diminished interest by the 'old' member states which are also EU members, as evidenced by less ministerial participation in meetings of the Committee of Ministers. However, these same 'old' member states often show greater interest in other intergovernmental work of the Committee of Ministers such as rapporteur groups, or steering committees. Of the 15 rapporteur and working groups, 9 are chaired by representatives of 'old' member states. In 2003, the Netherlands and Norway submitted proposals to increase ministerial participation in the meetings of the Committee of Ministers, which sought to strengthen the Council's role as a pan-European political platform and will serve as the basis for the upcoming 114th ministerial meeting.
The Council of Europe: functions and areas of responsibility
To achieve the goals set out above, the Council has been assigned many functions. In its report, the AIV emphasises the importance of the Council's monitoring activities. It urges the government to make full use of the existing instruments and, during its chairmanship, to commission a thorough study of the importance and effectiveness of those instruments. In principle, the government endorses these recommendations. It should however be realised that, in addition to being a legal instrument, an inter-state complaint is primarily a means of applying political pressure which must be used with discretion. The modalities of a study of existing instruments must of course be reviewed more closely by the government.
By placing so much emphasis on the monitoring activities, the AIV tends to lose sight of the organisation's other tasks. In the government's opinion, the Council fulfils five important functions:
- the Council as a normative organisation;
- the Council as a monitoring organisation (with a view to compliance with the acquis);
- the Council as a pan-European political platform;
- the Council as an organisation which provides assistance (with a view to facilitating the implementation of the acquis);
- the Council as a democratic forum (contribution to the Parliamentary Assembly (PA) and the Congress of Local and Regional Authorities of Europe (CLRAE)).
On this basis, it can be posited that its most important functions are its normative and monitoring work, its assistance to member states in meeting their obligations and its advocacy, directed to both member and non-member states. It is important that these functions be maintained.
Core activities of the Council of Europe
The AIV report states that the Council must focus on several core activities, which the AIV refers to as core tasks: human rights, democracy, the rule of law, protection of minority rights, preservation and promotion of cultural values and diversity in the member states.
I believe that the future role of the Council will be best served by maximising its use of these different functions and that the areas in which the Council is active must be consonant with them. In this light, I agree with the AIV that the Council must concentrate on core activities. In my opinion, these must be:
- promotion of human rights (what is meant by human rights here are all civil and political rights as set out in the ECHR, the social rights as set out in the ESC, and the rights of individuals belonging to minorities);
- promotion of democracy in a pluralistic society;
- strengthening the rule of law.
The protection of national minorities and the promotion of cultural values and diversity form an integral part of the promotion of human rights, democracy and the rule of law. The work of the Council of Europe in these areas is thus extremely important. In my view, however, there is no reason to consider these to be separate core activities.
I share the view of the AIV that all activities must be seen from the perspective of their contribution to the realisation of the core activity objectives. In this regard, the AIV is not consistent in its classification of the objective of social cohesion, which it sometimes describes as a core activity and sometimes does not. In my opinion, social cohesion constitutes the enabling environment for democracy, human rights and the rule of law. It is therefore important that activity in the area of social cohesion continue, even though, to a much greater extent than is currently the case, the existence of a functional relationship between that work and the spheres of activity of democracy, human rights and the rule of law must be ascertained. However, the most important general message (which also permeates the AIV report) is that selectivity is necessary for all the Council's activities. Every proposal for a new activity must be properly substantiated (financially as well) in respect of its substance, the body responsible for it and the working methods. This also means taking a critical attitude towards establishing new steering committees.
At present, it is not possible to say whether specific Council of Europe activities whose functional relationship with its core activities is not immediately obvious should also be part of its future remit. The functional relationship between those activities and the core activities makes it necessary to be selective when allocating funds. If a programme or activity does not at all contribute to promoting democracy, human rights and the rule of law, it should be phased out.
During preparations for the Third Summit, diverging suggestions for concentration of the Council's activities were put forward. The Dutch views were also set out. At the meeting of the Committee of Ministers in November 2003 in Moldova, the ministers indicated that the objectives of promoting democracy and the rule of law, promoting human rights (including the rights of national minorities) and strengthening social cohesion remain their top priorities. It is therefore reasonable to expect that the Third Summit will concentrate on the Council's work and above-mentioned core activities. The issue of further implementation must be settled during the discussions on priorities, which are periodically presented by the Secretary-General to the Committee of Ministers, and in the usual planning and budget processes. In those processes, a role is reserved for the Committee of Ministers (and the related steering committees and rapporteur groups) which will weigh the substantive, political pros and cons of issues relating to selectivity and priorities. The Netherlands believes that decision-making on partial agreements and voluntary contributions must form part of these processes. If it becomes clear that these processes are insufficient, they should be adjusted. Against this backdrop, there is currently no short-term need in the Netherlands to set up an expert group to review all activities in order to determine whether they fit into a 'concentrated' Council. This of course assumes that, per sector, all newly proposed activities are subject to critical assessment and are well founded. If so required, however, the group could be set up at a later date.
The AIV provides several tests for deciding what the Council's future focus should be. Several of its criteria and indications however are not particularly useful. It is clear that when actions do not derive from agreed decisions, or are not necessary for enforcing rules, or that no practical implementation is expected, the Council will not implement the programme or activity. The criterion that the action proposed or undertaken must have evident added value in respect of existing or planned EU, UN or OSCE legislation stems from the conviction that the work of those organisations is, in principle, more relevant than that of the Council of Europe – a principle to which I do not subscribe.
Other European multilateral institutions (such as the OECD) have preceded the Council in attempting to achieve a more target-focused and more selective use of limited resources by better honing their mandate and procedures. If the Council can agree on its normative mission in a Europe in the process of integration and on the core activities and functions which come into play, its mission will cover less territory but it will get (even) better results.
The AIV's recommendation to review whether the Council's 192 treaties are still relevant to and linked with its mandate is a welcome addition to reflection on the acquis in the light of future priorities. I point out that the number of signatures or ratifications cannot be the only criterion for determining relevance. A substantive review of the treaties is also necessary. I believe that if we want the exercise to have an effect on choosing the course to follow in the coming years, it must be an integral part of the multinational process in which the interests of all the members – old and new – are proportionately addressed.
I believe it vital that the partial agreement instrument be used carefully. The agreements should fit into the Council's priorities and place as few demands as possible on the organisation's regular resources. The Secretariat must first make it clear what kinds of demands such an agreement will place. The same applies mutatis mutandis to the voluntary contributions.
The European Court of Human Rights
In view of the problems facing the European Court of Human Rights, the report correctly states that particular attention should be paid to the Court. In general, the government shares the view expressed. Given the Court's tremendous workload, any possible measure must be considered. It is unreasonable to expect that one measure will provide the solution. A package of remedies is required which must focus (1) on the many manifestly inadmissible cases, (2) the 'clone' cases, and (3) on trivial cases. Ways must be found to lighten, or spread, the Court's workload in the phase before a decision on admissibility is handed down. This could make a huge difference as at least 90 of the complaints are manifestly inadmissible. In respect of the clone cases, consideration is now being given to the idea of staying a case after the Court has issued a ruling in a pilot case so that the state against which an application has been submitted has an opportunity to come up with an appropriate solution. If a case is not clearly ill-founded but by its very nature can be characterised as trivial, a new threshold of admissibility may be set. This could make a difference in the admissibility phase. I do not believe that making it easier for the Court to declare a case inadmissible is necessarily incompatible with an individual's right of application, so long as that right is protected by the appropriate safeguards. A new threshold of admissibility was declared acceptable by the Committee of Ministers at its meeting in May 2003 and the best formulation is now being sought. It is further stressed that, in order to slow the stream of complaints submitted to the Court, the above and other 'Strasbourg' measures must be accompanied by measures within the member states themselves to curb the flow of applications.
Institutions of the Council
It is worth noting that the AIV pays little attention to other essential institutions of the Council such as the Committee of Ministers, the Parliamentary Assembly, the Congress of Local and Regional Authorities of Europe and the Secretariat. I believe that they merit greater consideration. The Committee of Ministers' direction-setting, advisory and supervisory functions are important. The most important issue for the Assembly is the democratic legitimacy it gives to the Council's range of tasks.
The report devotes little space to the Secretariat, but the short passage on the subject is remarkably critical. With no substantiation or factual analysis, it states that the Secretariat could “use a good shake-up” because its role “is felt to be generally ambiguous” and because “its procedures have all the hallmarks of cumbersome bureaucracy.” I recognise that an effective and efficient Secretariat is crucially important for implementing the Council's broad range of tasks. Although I do acknowledge some of the AIV's criticisms of certain sections of the Secretariat, I do not agree with the general thrust of what has been said. In view of the lack of substantiation in the report, I believe that it is not appropriate to commission a review of the Secretariat's operations. Moreover, it is not clear whether the review should be drafted by the Netherlands or by the Committee of Ministers. The latter would demand that the AIV's criticism be echoed by other member states which, to date, has not been the case.
What is needed is a critical look at the work programmes and the role the Secretariat plays in them. I think it is important for the Committee of Ministers to participate more actively in designing the programme and to be more involved in implementing priorities. This would strengthen the member states' responsibility for the organisation. If there are reasons to do the recommended analysis at a later time, it must begin with a review of all the Council's core activities as set out in the budget and work programme.
The AIV is almost completely silent about the importance of the Congress of Local and Regional Authorities. The report sets out several examples of parallel EU and Council activities, among which are the many different activities of local and regional authorities. The AIV report also does not do justice to the unique tasks that the Council of Europe has taken on in the area of local and regional democracy. In this context, more attention can be given to drawing up norms or standards for the quality and design of local and regional administrations, to transnational cooperation between local and regional authorities and to periodic monitoring of local and regional administrations by the Congress.
The AIV recommends an evaluation of the mandate and operations of the Council's Commissioner for Human Rights. Since this position is a relatively recent one and because some member states wish to restrict the Commissioner's mandate, an evaluation of the mandate and function does not seem appropriate at present.
The Council of Europe in a wider context
As European regional organisations become more similar, in terms of both their membership and activities, there are growing opportunities for cooperation that strengthens the international rule of law and contributes to more efficient achievement of the objectives of the cooperating organisations. As recommended by the AIV, there must be room for an exchange of tasks and activities between international organisations.
It is striking that the AIV has, for the most part, not taken the opportunity to analyse the relationship between the EU and the Council. European efforts to achieve integration are, for the time being, expressed primarily by the EU, whose priorities thus leave their mark on the political agenda of European multilateral cooperation. However, the objectives of a Europe in the process of integration also underlie the Council of Europe's emphasis on pan-European normative identity.
Because the European Union's role, even in its relations with third countries, is becoming increasingly important in setting asylum and migration policy, and because the Council's work in this area is too far removed from its core activities, I believe that the Council must distance itself from the asylum and migration issue, unlike the question of integration, except when it comes to monitoring the application of its relevant treaties.
The AIV is correct when it says that one task for the Council is building bridges with non-EU members. Harmonisation of the European normative acquis is one of the organisation's most important missions. The Council can also lay the foundation for developing positions in the EU. Membership of the Council, moreover, is not necessarily the prelude to membership of the EU. EU enlargement has its own dynamics.
As regards the relationship between the Council and the EU, the report confines itself largely to the relationship with the European Commission. However, it is important to involve all European institutions in the cooperative relationships. This includes cooperation between the Council of the European Union and the Committee of Ministers of the Council of Europe, the European courts in Luxembourg and Strasbourg, the two parliaments and the institutions responsible for local and regional authorities.
The report is positive on the whole about EU accession to the European Convention on Human Rights but anticipates practical sticking points of an institutional nature. I believe that these can be overcome even though I understand that improvements in institutional cooperation do not necessarily lead to a clear profile for the Council's institutions in a Europe where dividing lines are disappearing. The relations between the Council and the EU are based on political choices about the direction European cooperation will take, and should do justice to the Council's pan-European normative mission.
I now turn to the OSCE. Whereas the Council of Europe's efforts and concerns focus on promoting and strengthening human rights, democracy and the rule of law, the OSCE deals with the same issues on the basis of its responsibility to promote a comprehensive security concept with political, economic and humanitarian dimensions.
The European normative tradition developed in part by the Council contrasts with the US legal tradition as evidenced by Europe's abolition of capital punishment, legal procedures, and approach to combating terrorism. To date, the Council has done little to address these differences but it could play an important role in building transatlantic bridges between diverging concepts. This is also germane to the relationship between the Council and the OSCE, of which the US is a member. In addition to the Council's role in formulating and monitoring norms and standards, it also has a role to play in disseminating the pan-European tradition in the area of human rights, democracy and the rule of law.
The operational sphere still offers potential for synergy. An OSCE presence in the field and the Council of Europe's legal expertise complement each other nicely. The member states of the two organisations should therefore strive to optimise their cooperative relations while recognising the divergent interests resulting from distinct mandates and differences in membership.
The AIV argues that greater attention should be paid to relations with the United Nations but does not develop this idea in its report. I recognise the growing importance of effectively linking regional and world-wide cooperation in the area of normative activity. For the Council, this means both greater access to the expertise of United Nations specialised agencies and substantive linking of concepts developed within the region to similar global norms and standards. For the Council of Europe, relations with UNESCO, WHO, and specialised and regional UN commissions are especially important. In the process, the Council should ensure that European norms are not weakened and prevent double standards from emerging.
Cooperation between the Council of Europe, the UN, the OSCE and the EU raises the question of overlapping activities. It goes without saying that when organisations really are engaged in the same work in the same policy areas in the same countries with the same objectives, the overlap must be eliminated. If activities are truly redundant, a decision must be taken as to which organisation is best placed to do the work. For the Council of Europe, this means confirming a link to the core activities discussed above. Unrelated activities must be phased out.
Given the differences between the EU, the OSCE, the Council and the UN, it will become clear in practice that in many situations talk of overlap is not entirely accurate. In such situations, complementarity is a much more important objective. The mere fact that other organisations already cover a specific policy area, or perform more or less identical activities, does not mean a priori that the Council must remain uninvolved. Admittedly, it is important that overlapping be avoided. Seen in this light, the member states of the different organisations involved must judge whether those activities are to be continued or whether the mandates forming the basis of the activities must be adjusted.
Promoting cooperation between international organisations with more effective contacts between secretariats is insufficient. Such coordination will have the greatest advantages if the process is driven by mutual harmonisation among the member states of the organisations concerned, by consistency in the positions a given state takes in those organisations, by better use of the regular inter-institutional discussion frameworks and by mutual observer status for the organisations in question.
The Netherlands will continue to be active in encouraging inter-institutional cooperation and harmonisation. Within the context of the EU, the Council of the EU's working groups are, in principle, well positioned to do this. There are also formal consultations between the EU and the Council and, in various sectors, formalised cooperation arrangements, such as tripartite cooperation in the health field among the secretariat of the European Commission, WHO and the Council. In a broader European context, or globally, however, the necessary frameworks are still lacking.
Press release related to this report has not been translated.