March 08, 2024
by Anca Ailincai
On 24th January 2024, the Parliamentary Assembly of the Council of Europe (PACE) resolved not to ratify the credentials of Azerbaijan’s parliamentary delegation. Consequently, the Azerbaijani delegation has been suspended from participating in PACE until further notice. The decision was based on substantive grounds, including the use of military force in Nagorno-Karabakh, long-standing reprisals against government critics, persistent electoral concerns, inhumane methods of torture in prisons, and lack of cooperation with the Assembly. Azerbaijan’s authorities are reported to be considering withdrawal from the Council of Europe (CoE) and the European Convention on Human Rights (ECHR) if parliamentary delegation rights are not restored (e.g. here and here).
It is rare for PACE to reject credentials for substantive reasons. It last did so in 1969, when it decided not to ratify the credentials of the Greek delegation after the colonel’s coup d’état of 1967. A somewhat similar decision was made in 1983, following the coup d’état in Turkey. Over the past decade, PACE sanctions have become a highly sensitive subject within the CoE.
The purpose of this blogpost is to bring to light the two major issues surrounding PACE’s recent decision not to ratify the credentials of the Azerbaijani delegation. The first is whether the decision is legal. This is particularly relevant given PACE’s previous experience of sanctioning the Russian delegation in 2014 and 2015, following the annexation of Crimea. The Russian Federation, which was expelled from the CoE in March 2022, claimed that these sanctions were illegal. This led to a major political and financial crisis lasting until 2019. The second question pertains specifically to Azerbaijan, which joined the CoE in 2001. The challenge to its parliamentary delegation’s credentials was first considered in 2002 and was eventually attempted in 2006, but it failed. Despite the lack of improvement in the situation, Azerbaijan’s parliamentary delegation did not face any further challenges to its credentials until 2024. So why did it take PACE so long to sanction Azerbaijan? This post provides an overview of PACE’s rules and practice regarding the challenge of credentials, before delving into the intricacies of these two questions.
Challenges to credentials are governed by Rules 7 to 10 of the Rules of Procedure of the Parliamentary Assembly (PACE RoP). At the beginning of each calendar year, the national parliament of each Member State must submit their representatives’ credentials to PACE for ratification (Rule 6). If the credentials have been previously contested, PACE may choose not to ratify them. Rule 7 allows for the challenging of unratified credentials based on procedural grounds related to the delegation’s composition (see Rule 6 in connection with Articles 25 or 26 of the CoE Statute). Since 1985, unratified credentials can also be contested on substantive grounds, at the beginning of each annual session (Rule 8). The substantive grounds can be based on allegations of either a ‘serious violation of the basic principles of the Council of Europe mentioned in Article 3 of, and the Preamble to, the Statute’ or ‘persistent failure to honour obligations and commitments and lack of co-operation in the Assembly’s monitoring procedure’ (Rule 8.2). Since 1996, the Assembly may reconsider previously ratified credentials even in the course of an ordinary session (Rule 9). If credentials are challenged, PACE must choose one of three options: a) ratify (or confirm the ratification of) the credentials; b) reject (or annul) the ratification of the credentials; or c) ratify (or confirm the ratification of) the credentials while suspending certain rights of the concerned delegation (Rule 10). The challenge fails in the first scenario, but succeeds in the latter two.
Throughout PACE’s history, credentials have been regularly contested, mostly on procedural grounds. When it comes to substantive reasons, the Assembly has occasionally threatened to apply sanctions (e.g. against Ukraine in 1997, Azerbaijan in 2002 and 2004, and Turkey in 2023), and the credentials have been unsuccessfully challenged on several occasions (regarding Ukraine in 1998, Serbia and Montenegro in 2004, Azerbaijan in 2006, Russia in 2008 and 2009, and Ukraine in 2009). Apart from the Greek and Turkish cases, the Assembly has never rejected the credentials en bloc, because this option hinders any dialogue, including with opposition parliamentarians. More moderate sanctions have been applied only twice, against the Russian delegation. In relation to the conflict in Chechnya, PACE ratified the credentials of the Russian delegation, but suspended its voting rights from April 2000 until January 2001. After the annexation of Crimea, the Assembly chose once again not to annul the already ratified credentials of the Russian delegation (here and here), but instead decided to suspend some of its rights in April 2014, and again in January 2015. This triggered a major political and financial crisis (among others see here, here and here). The political conflict swiftly transformed into a legal dispute, as the Russian authorities deemed the sanctions imposed by PACE to be unlawful, i.e. not in accordance with the CoE Statute.
The Russian authorities claimed that ‘the statutory rights of Russia had been violated’. They argued that the CoE Statute allows any Member State to be fully represented in all of the organisation’s bodies, unless the Committee of Ministers decides otherwise. Therefore, the Russian authorities wanted the Assembly ‘to delete from its Rules of Procedure all provisions which could lead to a challenge of credentials of national delegations’. To achieve its goal, Russia requested that the Committee of Ministers pass a resolution confirming its interpretation of the Statute (e.g. here).
The Directorate of Legal Advice and Public International Law (DLAPIL), consulted by the Secretary General, provided a confidential opinion that supported the Russian position. According to this analysis, PACE does not have the authority to suspend the core membership rights of a Member State. The conclusion is highly debatable given that it relies mainly on the formal text of the Statute, thus underestimating the importance of practice in determining the competences of international organisations and their organs. And yet, besides the powers explicitly attributed in the establishing treaty, the organs of an international organisation may legitimately exercise customary powers. The key considerations are the general practice within the organisation and the reaction of State representatives to this practice. The resolutions and recommendations adopted by the PACE serve as the primary indicators of its practice.
PACE has undoubtedly acquired new competences since the enlargement of the CoE in the 1990s. This has resulted from the establishment of its monitoring procedure in 1993 and the consolidation thereof in 1997. The goal of this procedure is to ensure full compliance with the undertakings made by Member States. To achieve this, Resolution 1115 (1997) explicitly envisages the use of PACE’s sanctioning regime, in exceptional circumstances. Although the monitoring procedure was obviously not anticipated in the CoE Statute, it was endorsed by the Final Declaration adopted by the heads of States and governments at the organisation’s second summit in 1997. Therefore, it is evident that the State representatives accepted the entire procedure, including its most coercive part.
The analysis of PACE’s subsequent practice leads to the same conclusion. It is important to emphasise that the practice to consider is the general practice of PACE. According to the International Law Commission (ILC), the requirement of a general practice means that all the available practice must be assessed as a whole (see here, Conclusions 7.1 and 8.1). Therefore, the assessment should not solely focus on the 2010s case involving Russia, but also include reactions to the establishment of the sanctioning regime, to all threats of sanctions, and to all unsuccessful challenges of credentials. Prior to 2016, PACE’s practice of challenging credentials for substantive reasons did not raise any public doubts on legal grounds.[i] According to the ILC, failure to react over time to a practice may serve as evidence of customary law when the circumstances called for a reaction (see here, Conclusion 10.3). This was undeniably the case here, at the very least as far as the States threatened with sanctions were concerned. Consequently, it could have been assumed that the Member States had consented to the creation over time of a new customary sanctioning power for PACE, directly linked to its new monitoring responsibility.
The fact is that the DLAPIL reached the opposite conclusion, and, more importantly, the Committee of Ministers adopted this opposite conclusion as its own (see here, § 1). As a consequence, PACE amended its RoP in June 2019, without abandoning the entire sanctioning regime, as the Russian authorities, supported by the Committee of Ministers, wanted. Since then, the only meaningful sanction has been the non-ratification of credentials or the annulment of previously ratified credentials.
In 2020, a complementary (joint) procedure was established to enable the Committee of Ministers, PACE and the Secretary General to jointly address a Member State that is no longer complying with its obligations and commitments (see here and here). While adopting this procedure, the Committee of Ministers underlined that it replaces the sanctions established by the Assembly. This was done at the very last minute (compare here, Appendix, pt. A and here, pt. A) and apparently at a Russian initiative. PACE’s Committee on Rules of Procedure, Immunities and Institutional Affairs strongly disagreed.
Therefore, the rejection of the Azerbaijani delegation’s credentials in 2024 may reactivate disputes with the Committee of Ministers regarding its conformity with the CoE Statute. This issue has not necessarily been definitively resolved yet. Committee of Ministers’ statements of 2019 and 2020 have nullified the presumed legal effects that the previous general and established practice of PACE had generated. An explicit agreement between Member States has indeed replaced the previous opposite and implicit one. However, the Committee of Ministers could again undo what it has already undone before. This could happen if PACE’s initiatives are not publicly condemned. This scenario appears plausible for two reasons. Firstly, Russia, which is no longer a member of the CoE, was instrumental in the adoption of the Committee of Ministers’ position in 2019-2020. Secondly, the Committee of Ministers has only taken note of PACE’s initiative regarding Azerbaijan, which indicates a lack of consensus to reject it outright.
Upon joining the CoE in January 2001, Azerbaijan pledged to fulfil its statutory obligations and several specific commitments. In particular, it has undertaken to settle disputes with neighbouring countries through peaceful means, to release or grant a fair trial to individuals labelled as ‘political prisoners’, and to cooperate with the monitoring procedures of both PACE and the Committee of Ministers.
As part of its post-accession monitoring, the Committee of Ministers adopted two public Declarations in 2001 and 2004 regarding the issue of political prisoners. However, achieving a consensus on this topic became impossible in the 2010s due to Azerbaijan’s veto. Furthermore, the monitoring procedure applied to Azerbaijan was relaxed. In 2009, Azerbaijani authorities expressed their reluctance to be submitted to a country-specific monitoring procedure. In 2010, the ad hoc group in charge of this procedure (GT-SUIVI.AGO) was unexpectedly abolished (compare here and here). Since then, the Rapporteur Group on Democracy (GR-DEM) has been entrusted with much less visible monitoring (see here and here). In 2019, the GR-DEM proposed to intensify its monitoring by establishing a regular review of the implementation of Azerbaijan’s commitments, but it faced strong opposition from one (here and here), then two delegations, and finally an unresolved disagreement between two delegations. It took 18 months to reach a consensus, which ultimately did not lead to strengthened monitoring. Thus, the Committee of Ministers has excessively relied on the European Court of Human Rights (ECtHR) to address some of the most concerning issues in Azerbaijan due to its disproportionate attachment to consensus, (e.g. here). And yet, supervising the implementation of ECtHR judgements has been a challenge for the Committee, particularly prior to 2018-2019.
PACE monitoring has not proved more effective. In 2002, 2004 (here and here), and 2015, PACE considered imposing sanctions on the Azerbaijani parliamentary delegation. The delegation’s credentials were eventually challenged on substantive grounds in January 2006, but the attempt failed. Surprisingly, the credentials were not questioned again until January 2024, despite Azerbaijan’s failure to fulfil its major commitments.
The Assembly’s attitude towards Azerbaijan became more lenient over time due to the ‘caviar diplomacy’ scandal. From 2012 onwards, an NGO released a series of reports alleging that a corruption policy had been implemented to influence PACE’s work on Azerbaijan. An independent external investigation body, established by PACE, confirmed these allegations in relation to all five rapporteurs appointed between 2010 and 2016 to monitor the situation in Azerbaijan. The investigation also found that the parliamentary work on political prisoners in Azerbaijan had been undermined by the detrimental influence of individuals whose integrity was questioned. Based on this evidence and GRECO’s recommendations, PACE imposed sanctions on the few members and former members identified by the investigation body (e.g. here and here) and strengthened its ethical framework. More recently, the CoE has adopted a binding Code of Conduct for all staff members, along with an investigative process to examine all allegations of misconduct.
Within this renewed legal and political framework, PACE has become tougher on Azerbaijan. In September 2023, ten months after the Lachin corridor was blocked off, including for CoE officials, Azerbaijan launched a military operation in Nagorno-Karabakh. PACE’s reaction to this event was harsher than the rapporteur’s proposal. In October 2023, Azerbaijan was threatened with the initiation of the complementary joint procedure and the challenging of its parliamentary delegation’s credentials. In December 2023, the Monitoring Committee produced a comprehensive monitoring report, the first since 2012. According to the report, the rapporteurs had been denied access to any of the persons detained on allegedly politically motivated charges. Additionally, Azerbaijan had not fulfilled its obligation, as a country under the monitoring procedure, to invite PACE to observe the presidential election held in February 2024. In January 2024, PACE resolved not to ratify the credentials of the Azerbaijani parliamentary delegation, expressing its regrets that Azerbaijan had not fulfilled major commitments, more than 20 years after joining the CoE (Resolution 2527 (2024)).
Somewhat surprisingly, PACE chose to reject the credentials rather than initiate the complementary joint procedure or do both. This decision may reflect a lack of political support for the latter two options. Indeed, Rule 41 of PACE’s RoP requires a much higher majority for the adoption of a draft recommendation on the initiation of the complementary joint procedure than for the adoption of a draft resolution challenging the credentials. The first option requires a two-thirds majority of the votes cast and a number of votes in favour equivalent to at least one-third of the number of PACE members entitled to vote. The second option requires only a simple majority of the votes cast. Resolution 2527 (2024) was adopted with only 76 votes in favour, 10 votes against, and 4 abstentions. This majority, which is much narrower than the 145 votes in favour of Resolution 1990 (2014) that sanctioned the Russian delegation, would not have been sufficient to launch the complementary joint procedure. This suggests that PACE remains divided on the issue of sanctions, and that Azerbaijan still has supporters.
It remains to be seen whether PACE will take a similar stance on Türkiye, regarding its persistent failure to comply with the ECtHR’s judgments in the Kavala case. In October 2023, the Assembly warned that the credentials of the Turkish delegation would be challenged if Osman Kavala were not released from prison by 1 January 2024. It also envisaged initiating the complementary joint procedure. But nothing has happened thus far, perhaps because the Committee of Ministers is still engaged in a high-level political dialogue with the Turkish authorities (see here) and because Mr Kavala still has two applications pending before the Turkish Constitutional Court (see here). Failure by the Assembly to adopt a consistent position on all Member States in comparable situations may undermine its credibility under the principle of non-discrimination.
It also remains to be seen if the Committee of Ministers will be critical or supportive of PACE’s initiatives, starting with Azerbaijan. Learning from the experience with Russia is crucial. In the previous case, the Committee of Ministers failed to react strongly for a long time, despite red lines being crossed long before the military aggression of Ukraine in February 2022. The expulsion of Russia from the Coe in March 2022 was an apposite but belated decision. Statutory organs must take swift and resolute action to address breaches of statutory commitments by States that openly show contempt for the organisation’s work and purpose. Undoubtedly, the ECtHR cannot handle these issues alone. While sanctions will not improve the situation overnight, they are necessary to preserve the credibility of the CoE and to try to prevent the spread of defiant behaviours. Thus, it is crucial that the Committee of Ministers genuinely support the Assembly. As the latter suggested, the Committee could do so by reinstating country monitoring for Azerbaijan, in accordance with its 1994 Declaration on compliance with commitments accepted by member states. It would be even better if the complementary procedure was initiated by the Committee.
[i] F. Benoît-Rohmer, H. Klebes, Le droit du Conseil de l’Europe. Vers un espace juridique paneuropéen, ed. Conseil de l’Europe, 2005, p. 44; E. Klein, “Membership and Observer Status”, in S. Schmahl et M. Breuer (eds.), The Council of Europe. Its Law and Policies, Oxford University Press, 2017, p. 72, § 3.72.
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