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.

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They did it again: Russia’s continued presence in the PACE

By Lize R. Glas, Assistant Professor of European Law, Radboud University, the Netherlands

In a previous blog, I recalled how the Russian delegation managed to return to the Parliamentary Assembly of the Council of Europe (Assembly) without sanctions in June 2019. The return of these members meant the end of their refusal to submit their credentials in the years 2016-2019. That refusal, in turn, had been a reaction to the Assembly’s April 2014 decision to suspend the Russian members’ voting (and some other) rights because of, inter alia, Russia’s annexation of Crimea.

When ratifying the credentials of the Russian delegation in June 2019, the Assembly called on Russia to do a number of things, including fulfilling previous Assembly resolutions, returning 24 illegally captured sailors to Ukraine, paying all fees due to the Council of Europe, protecting LGBTQI+ people, and cooperating in the investigation of the downing of the MH17 flight and the murder of politician Boris Nemtsov. The delegation was requested to cooperate with the Assembly’s committees and engage in a meaningful dialogue. The Assembly expected that this dialogue would lead to concrete results, and invited its Monitoring Committee to report on the honouring of obligations by Russia no later than April 2020.

During the 2021 winter plenary session of the Assembly, which took place from 25 to 28 January, the credentials of the Russian delegation were challenged (again). In this blog, I will explain how the relation between the Assembly and Russia has developed since June 2019, discuss the 2021 winter plenary session, and comment on what these events tell us about the Assembly’s approach towards Russia and the steps that its representatives are prepared to take against that state and its delegation.

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Russia left, threatened and won: Its return to the Assembly without sanctions

By Lize R. Glas, Assistant Professor of European law, Radboud University, the Netherlands

The background story: The Assembly takes action

As has been recounted on this blog and on other blogs already (see here and here as well), the Parliamentary Assembly of the Council of Europe (Assembly) and Russia have been in a row ever since the Assembly suspended the voting rights and some other rights of the Russian delegation in April 2014 (see also here). The Assembly took this measure because of, inter alia, Russia’s annexation of Crimea. In response, Russia has not submitted the credentials of its delegation since 2016. Moreover, Russia suspended its payment to the Council of Europe.

These events have not only led to serious financial consequences for the Organisation (by the end of 2019, Russia will have a debt of 90 million euros), but have also led Russia to question the binding nature of the European Court of Human Rights’ (Court) judgments, considering that it has not participated in the election of most of the Court’s current judges. To make things even worse, Russia has threatened to leave the Council of Europe if it would not be permitted to participate in the election of the new Secretary General during the June 2019 session (see also here). Russia has made its return to the Assembly conditional on the Assembly removing from its Rules of Procedure the provisions concerning the challenging of credentials and the imposition of sanctions. As a result of these events, the Council of Europe is now in a ‘deep political and financial crisis’. Continue reading