The previous article in this series focused on the European Union. However, the EU is not the only international organization in Europe promoting a broad European integration. The Council of Europe (CoE) is another influential organization in Europe. It was founded in 1949, which thus makes it older than the EU.
In similar fashion as the EU, it has a broad purpose. This is due to the fact that the allied powers considered a broad political, economic and social integration necessary to prevent another atrocious inter-state war in Europe. Therefore, according to article 1(a) of its statute,[1. Statute of the Council of Europe, ETS No. 1] the aim of the CoE is “to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress.”
Treaty-driven integration
Despite its broad aim, the powers of the CoE are limited. While the EU is characterized as an organization of supranational character, the CoE is, in contrast, a fairly traditional international organization. Membership in the CoE does not entail any transfer of sovereignty. Consequently, the CoE and its organs may not bind its member states without consent.
Nevertheless, the CoE has still played a central role in the legal integration of Europe. This is mainly due to the fact that it has facilitated the conclusion of more than 200 treaties between its member states. Many of these have been highly successful. Due to the purpose of this series of articles I will only discuss what is arguably the most famous of these treaties, the European Convention of Human Rights.
Protecting Human Rights across Europe and beyond
The European Convention on Human Rights (ECHR)[2. Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5] was signed in Rome on the 4th of November 1950. Today, sixty-one years and fourteen amendments later, it is generally considered to be the worlds most advanced international system for human rights protection.
The emphasis here is on the word “system.” In itself, a human rights treaty is just a document – plain text. The ECHR on the other hand has a well-functioning[3. Some might contest the fact that the ECtHR is “well-functioning” on the basis that it currently has over 150 000 pending applications. I will not deal with that issue in depth in this article. But, it should be mentioned that the Court in most other aspects functions better than comparable international institutions. One could easily see astronomical pile of applications as indicating that the Court is a victim of its own success.] court system where individuals may file complaints against their member states after exhausting all domestic remedies. And, if he prevails, the European Court of Human Rights (ECtHR) is empowered to afford just satisfaction to that person. Even though the execution of these judgments is subject to the consent of the state violating the Convention, they are generally complied with.
The Court has a jurisdiction covering all core civil and political rights. The territorial scope of jurisdiction is also broadly defined in ECHR art. 1: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.” (emphasis added). This provision is interpreted by the ECtHR as to not only cover acts within the territory of a state, but also acts committed abroad if a High Contracting Party exercises all or some of the public powers there. An example of this can be found in the famous Al-Skeini and Al-Jedda cases, decided by the ECHR this summer, where the United Kingdom was convicted for acts committed by their armed forces during the occupation of Iraq.
The ECHR as a living instrument
The Court has not restricted its expansive reading of the ECHR to the article on territorial scope of jurisdiction. The ECtHR has been developing the rather vague provisions in the Convention actively, across the board. It puts great emphasis on the fact that the ECHR is a “living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today”.
Thus, its method of interpretation often takes the form of so-called inductive-deductive reasoning. When using this two-step process, the ECtHR first looks at the national legislation of the High Contracting Parties in order to induce a common European standard. This common standard is then used as an interpretive tool in order to determine the exact scope of the relevant ECHR right.
By using such an approach the Court is also able to develop its case law over time, in accordance with the changing national laws. Furthermore, it enables the Court to iron out differences in the human rights protection. If you are the only country in Europe having a blanket ban on prisoner voting – as the UK – chances are that the ECtHR will strike it down as a violation of the right to vote.[4. As was the case in Greens and M.T. v. UK, applications nos. 60041/08 and 60054/08]
Due to its “living instrument” doctrine the Court is often criticized for being a judicial activist. This critique is, at least to some extent, understandable in light of the Court’s evolutive interpretation. Nevertheless, the use of the common practices of the High Contracting States is a relevant mean of interpretation under VCLT art. 31(3). Either, one can see it as an application of the “subsequent practice” rule in (c), or, perhaps more convincingly, as “any relevant rules of international law in the relation between the parties” under (c), due to the fact that general principles of (national) law are to be regarded as a source of international law.
Reform and the accession of the EU
The picture painted above, of the ECtHR as the driving force behind the development of the Convention is only partially correct. In the last 60 years 14 additional have been enacted. These either amend the ECHR itself, or supplement it with additional rights. Large institutional changes have been made. The ECHR, for example, only handled a very limited number of applications before it was reformed in the 1990s.
The most recent reform happened with protocol 14 which, after being blocked by Russia for several years, entered into force July 2010. In addition to improving the efficiency of the ECtHR this protocol also provides for the accession of the European Union to the convention.
The accession of the Union will be the topic for the next, and final, article in this series. After giving you an (superficial) overview over the most important institutions and instruments on the playing field we will look at the accession more in detail. Is the Union, as an international organization even competent to accede? And what are the implications? These are the sort of questions we will be put forward in that article.
