Council of Europe at 72: Defusing the Defence Clause, Engaging the Acquis

This post was written by Dr Andrew Forde

Winston Churchill caused quite a stir in 1950 when he used the platform of the Council of Europe’s (CoE) then Consultative Assembly (now Parliamentary Assembly) to call for the creation of a European Army. The Committee of Ministers (CM) politely but firmly rebuked the Assembly’s proposal on the basis that ‘decisions on matters of national defence do not fall within the scope of the Council of Europe’, but went on to express hope that ‘the problem of the defence of free Europe may be satisfactorily dealt with in the near future by decisions of the Governments and the competent international organisations’.

Their dismissal was based on Article 1.d of the Statute (hereafter the ‘Defence Clause’) which provides that ‘[m]atters relating to national defence do not fall within the scope of the Council of Europe’. Over time, whilst discussions on sovereign matters of national defence such as defence expenditure, weaponry, alliances and so on have remained largely taboo based on the exclusionary Defence Clause, it has become accepted practice that this does not, in any way, rule out political engagement by the CoE on matters of peace and security particularly when framed in the context of the protection of human rights. And rightly so. To do otherwise, would be to fundamentally undermine the object and purpose of the organisation.

As we recently marked the 72nd anniversary of the CoE Statute, in this piece I will briefly discuss why a more restrictive reading of the Defence Clause would be deeply problematic and that CoE Member States should significantly enhance the organisation’s engagement with emerging and legacy conflicts.

The limits of the Defence Clause

The reasons a Defence Clause was included in the CoE Statute in the first place are at least threefold:

  1. to delineate the emerging post-war international institutional order,
  2. to preserve the centres of power of new military alliances and,
  3. to reinforce the neutrality or non-aligned position of the few neutral European states that had no wish to join a military organisation such as NATO.

At the time of drafting, its inclusion was understandable, but it quickly became apparent that to interpret the Defence Clause as excluding consideration of matters related to conflict would represent a gross abdication of duty by Europe’s human rights watchdog. It would seem absurd prima facie to suggest that the CoE does not have a legitimate interest to comment and mobilise its standards and institutions when the human rights of individuals are at stake in the time of war, or in fragile post-conflict contexts. The very purpose of the CoE, established in the aftermath of World War II was to never again allow Europe to be torn apart through war given its catastrophic effects on individuals, particularly the most vulnerable.

Article 3 of the Statute not only requires every CoE state to accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, but it also contains a commitment to ‘collaborate sincerely and effectively’ to those ends. The CoE has an important institutional role to play in supporting states to realise their commitments. It does this not only inter-governmentally and judicially, but also through monitoring and technical cooperation.

When concern emerges about the manner in which the European Convention on Human Rights (ECHR) is being implemented in a Member State, the Secretary General can use the legitimate power to investigate under Article 52 of the Convention, in times of conflict such as in Chechnya in 1999 or in peacetime like in Azerbaijan in 2015. In that respect, the Defence Clause cannot be seen as limiting CoE action or ambition in fulfilling its object and purpose in the context of conflict. Indeed, the scope of potential legitimate application of the Defence Clause is exceptionally narrow, and it should remain as such given the object and purpose of the CoE.

Role of the Council of Europe in relation to conflict and peacebuilding

The 2005 Warsaw Declaration, which remains the CoE’s high-level political blueprint, helped to further clarify that the CoE has a legitimate interest in relation to conflict and peacebuilding. Given the inevitability of rights being severely violated during conflict, this blueprint made explicit reference to unresolved conflicts and committed states to working together for reconciliation and political solutions in conformity with the norms and principles of international law. This appropriately recognises the unique contribution of CoE human rights, rule of law and democracy standards and systems including monitoring bodies to the peacebuilding process. It also distinguishes the CoE’s functions from those of other competent organisations such as the UN Security Council or the OSCE. To further ensure complementarity, the CoE has elaborated agreements with the OSCE to improve coordination including in relation to conflicts, and with the UN since the 1951 ‘Agreement between the Secretariat General of the Council of Europe and the Secretariat of the United Nations’ which was updated in 1971 through the Arrangement on Co-operation between the United Nations and the Council of Europe and is supplemented by regular UN General Assembly Resolutions on co-operation with the CoE. Similar agreements are in place with the EU. On the ground, CoE offices in places such as Ukraine, Bosnia and Herzegovina, Kosovo and Armenia also collaborate extensively with their OSCE, UN and EU counterparts on matters of human rights, rule of law and democracy, and are generating many positive results.

Additionally, the leadership of the CoE consistently emphasises the CoE’s interest in protecting individual rights in times of conflict. For instance, in January 2019, referring to the annexation of Crimea and the conflict in eastern Ukraine, SG Jagland noted that ‘under the current international order it is not for us to solve these conflicts’ but that ‘should not prevent [the Council of Europe] from protecting people’s rights’. On the contrary, simply because there is an open conflict, Jagland stressed the need to deploy all CoE instruments in these areas. Current SG Marija Pejčinović-Burić Fmaintains this stance, and recently noted that whilst the CoE is not directly involved in the peaceful settlement of conflict it is concerned by the humanitarian and human rights aspects. In presenting its new four-year Framework for the organisation in May 2021, the Committee of Ministers, under the German Chairmanship, noted that the Council of Europe remains concerned about unresolved conflicts that still affect certain parts of the continent, and emphasised that working together for reconciliation and political solutions in conformity with the norms and principles of international law remains essential.

The challenge the Council of Europe has faced is to play a meaningful role in times of conflict in practice, and more importantly, to ensure the acceptance and support of Member States in fulfilling that role. British Conservative MP David Wilshire summed up this long standing challenge in a debate following the 2008 war between Russia and Georgia when he said that ‘we must avoid doing nothing, and avoid doing too much’. The truth is, the CoE is very far away from doing too much. Despite efforts to engage with and support conflict-affected populations, by the end of his term of office SG Jagland recognised that efforts to that point had proven largely ineffective (p. 48). This begs the question, what is impeding the organisations engagement and effectiveness in times of conflict? Is it insufficient political support of the Committee of Ministers, a lack of good faith on the part of parties to relevant conflicts, or a lack of ambition by the Secretariat? Perhaps all three, to some extent. The Secretariat is strong in a declaratory sense on the need to avoid human rights ‘grey zones’ and has taken many initiatives to avoid monitoring gaps such as in Kosovo. It has systematically called out situations which risk rights violations. However, at times it seems to invest more of its capacities in North Africa than it does within the CoE legal space. By way of example, there are far more cooperation programmes in Tunisia than there are in Transnistria. The Committee of Ministers too has kept abreast of developments in some contexts, but has had little to no impact on their resolution because the power to make meaningful progress lies elsewhere: in national capitals, in Vienna or in New York. And over and over again we see monitoring mechanisms prevented from freely accessing conflict affected areas like Nagorno Karabakh, Eastern Ukraine, Abkhazia and South Ossetia.

Shared responsibility and peacebuilding

Sincere collaboration implies openness to engagement in good faith on questions of fundamental rights, including facilitating access by CoE monitoring and advisory mechanisms to regions affected by conflict and other contested territories. To fulfil the object and purpose of the Statute and to retain its credibility, the CoE has an obligation to help ensure functioning democratic institutions, accountability mechanisms and effective rule of law frameworks. It can do so by being a proactive supporter of peacebuilding processes, supporting the mediation efforts of others and unashamedly speaking out for those most at risk of having their rights violated because of conflict. The Secretary General must be fully supported by the Member States to exercise the Normative Will they have sworn an oath to fulfil, and at the same time they should never cease to remind Member States not only of their individual responsibilities under the ECHR but also their collective responsibilities to European public order. This takes the spirit of shared responsibility as elaborated during the Interlaken Process to its logical and practical conclusion. Additionally, there is much more scope for complementary actions amongst the CoE, UN, OSCE and EU in matters of human rights.

One must recognise of course that realpolitik casts a long shadow. That the Warsaw Declaration has not been renewed in 16 years speaks to the geopolitical challenges facing the CoE whereby the bedrock of consensus has begun to subside, and sub-regional coalitions of increasingly disparate interests continue to emerge. Far from diminishing ambitions, this is yet another reason the CoE should be more resolute in its engagement with legacy and emerging conflicts. Member States committed to the values of the CoE must vociferously defend and seek to enhance the CoE so that it can play an active and assertive, not passive and retiring, role when it comes to conflicts in Europe. The organisation occupies a unique space in the international order, with objective standards and unparalleled expertise designed to serve the public good. That potential must be fully resourced, enabled and engaged in order to be effective.

The need for boldness, and even temerity

Anniversaries are a good moment to reflect and reimagine. Over the past 72 years the Council of Europe region has experienced wars, uprising, coups, dozens of border changes, and in many cases, the legacies of many of these situations can still be felt today. Over the decades, the organisation has developed a rich acquis which has become a benchmark for human rights good practice. The organisation rightly refused to be limited by the Statutory Defence Clause, but the challenge is to put into consistent practice what is now very well-established in prose. It is about playing an effective and complementary role to the protection of human rights, the rule of law and democracy, particularly in times of crisis.

In 1993, Lord Geoffrey Finsberg led an attempt to revise the Statute, which had the potential to slightly nuance the Defence Clause, situating it as an area of public policy which is sovereign, but without diminishing the potential for the CoE to work to protect fundamental aims of human rights, democracy and the rule of law. Alas, those proposals were rejected and in any event, practice has shown that Statutory change is unnecessary. Any issue affecting the rights of people in the Council of Europe region must be seen as undeniably legitimate topics of interest to the organisation.

As the situation of unresolved conflicts and human rights ‘grey zones’ in Europe slowly gains prominence, it is critically important that the CoE demonstrates brave leadership, as it has done so often in its 72-year history. To use the words of French Socialist leader Léon Blum on occasion of the first meeting of the Committee of Ministers in 1949, as the organisation decides how to engage in all stages of peacebuilding there is a need for the Council of Europe ‘to show boldness and even temerity’.

The author wishes to thank Prof. Kanstantsin Dzehtsiarou who provided invaluable comments on an early version of this article.

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