Dzehtsiarou, Kanstantsin

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Between a Rock and a Hard Place: TheDilemma of Continuing or CeasingRussian Membership in the Council ofEuropeKanstantsin Dzehtsiarou 2018-11-06T11:28:50Last week the Washington Post reported that top Russian officials are contemplatingwithdrawal from the Council of Europe. This would be the first withdrawal since 1967when Greece pulled out of the Council of Europe after the military coup during themost turbulent times in Greece’s modern history. In the 60s, the Council of Europehad started a procedure of expelling of Greece for gross human rights violations butthe ‘black colonels’ government withdrew before the procedure was complete. Thesame scenario is also possible in the context of the confrontation between Russiaand the Council of Europe. The political regime in Greece changed and four yearslater Greece returned to the family of European states. It is yet to be seen how long itwill take Russia to return if it withdraws.In 2017, Russia failed to pay two thirds of its contribution to the ordinary budgetof the Council of Europe. The financial pressure continued in 2018, when Russiarefused to pay its contributions They justified it by references to lack of participationof the Russian Delegation in the Parliamentary Assembly of the Council of Europe(PACE) which was effectively self-inflicted. To avoid humiliation of not beingallowed to participate in the PACE, the Russian authorities decided not to send theirParliamentarians to Strasbourg. The root causes of this situation can be traced to thereaction of PACE to illegal actions of Russia in Crimea and Eastern Ukraine. NowRussia demands that the rules of procedure of the PACE are changed in a way thatPACE would not be able to reject any of the delegations to participate. PACE hasrecently attempted to change its rule of procedure but these attempts failed. Suchfinancial ‘blackmail’ falls short of the standard of ‘sincere collaboration’ establishedunder Article 3 of the Statute of the Council of Europe.Legal RegulationsTechnically, both withdrawal and expulsion are not particularly difficult. Withdrawalfrom the Council of Europe would not lead to such complications as we witness nowwith the UK withdrawal from the EU. Suspension and termination of membershipare regulated by Article 8 of the Statute of the Council of Europe. It provides thatany member of the Council of Europe which has seriously violated Article 3 maybe suspended from its rights of representation and requested by the Committeeof Ministers to withdraw under Article 7. Article 3 establishes that all members ofthe Council of Europe should accept the principles of rule of law and human rightsand they should collaborate sincerely and effectively in the realisation of the aims- 1 -of the Council. In times of crisis, the Council of Europe can consider the possibilityof triggering Article 7 in relation to states which fall below the standards that aredeclared in Article 3. Pursuant to Article 8 of the Statute, if a member state thatwas requested to withdraw does not comply, the Committee may decide that it hasceased to be a member of the Council.Article 9 also provides that the Committee of Ministers may suspend the right ofrepresentation on the Committee and on PACE of a member which has failed to fulfilits financial obligation. If Article 9 is read in light of Article 8, such suspension mightlead to a request to withdraw.If a state would like to leave, it can do so by formally notifying the Secretary Generalof its intention to do so pursuant to Article 7 of the Statute; within a year, a memberstate can cut almost all ties with the Council of Europe. The European Court ofHuman Rights will have to deal with the backlog of cases and some treaties willcontinue operating even after the withdrawal. Technically, neither expulsion norwithdrawal are particularly lengthy or difficult. That said, there is an infinite numberof considerations that are not reflected in the very laconic Articles 7, 8 and 9 of theStatute of the Council of Europe.Beyond LawThere are a number of complex considerations that both Russia, the Council ofEurope as a whole and the most influential governments in Europe should take intoaccount. I will just briefly point to the most important ones that the stakeholders haveto take into account.Expulsion from an international organisation raises many fundamental choices forthis organisation. One of these choices is whether expulsion and the consequentloss of any influence on the expelled country is more preferable than trying to keepthe “problematic” country within the organisation. When the latter choice is made, theCouncil will continue suffering from the loss of legitimacy if the “problematic” countrycontinues disregarding the fundamental values of the organisation. This brings us tothe question of where the Council of Europe should draw the red line. The Russianforeign minister, Lavrov, recently said that the Russian authorities will not wait untilthe procedure of expulsion is completed, they will withdraw before that. Amongother things, he opined that Russia needs the Council of Europe not more than theCouncil of Europe needs Russia. So, the government does not seem to think thatit will lose much if Russia withdraws from the Council. This is unfortunate becauseRussia will clearly demonstrate that it does not consider itself a part of Europe if notgeographically but definitely spiritually.The Council of Europe might consider that it will lose a part of its influence if any ofits members withdraw. However, the extent of this influence is questionable. Memberstates like Russia, Turkey and Azerbaijan might show that the Council of Europeis failing in bringing states closer to the ideals of human rights, rule of law anddemocracy. While it is not the fault of the Council of Europe that this is happening,the Council of Europe can only be effective if there is a genuine will and ability of its- 2 -members to collaborate. The Council of Europe has predominantly soft powers at itsdisposal which are not sufficient to force compliance.Another unfortunate outcome of expulsion is related to the European Court ofHuman Rights, (ECtHR). Expulsion from the Council of Europe means that anyperson under the jurisdiction of the former member state whose rights are allegedlyviolated will lose an opportunity to apply to the ECtHR. The Secretary General of theCouncil of Europe has identified this as one of the key challenges of expulsions orwithdrawals. Often the ECtHR is the last hope for the most vulnerable people suchas prisoners or national and ethnic minorities. The ECtHR has a significant impactin some areas of Russian law but unfortunately it cannot influence the bigger pictureespecially when the Russian government is not particularly willing to change.Finally, an international organisation cannot exist, let alone effectively fulfil its aims,without funding. Financial considerations are not ends themselves; they remainmeans to an end, but they are nonetheless important. The Council of Europe needsto consider if expulsion would undermine its ability to fulfil its statutory aims from thefinancial point of view. Having said that, financial considerations, while significant,remain ultimately of prudential importance – they cannot be given more weight thanthe integrity of the system as such. Taking into account that Russia does not pay itsdues anyway – this might not be such an important consideration here.To sum up, the law is not capable of giving a clear answer to a number of crucialdilemmas for the Council of Europe in these circumstances. What will it chose –influence over principles, money over values, or vice versa?- 3 -

Between a Rock and a Hard Place: The Dilemma of Continuing or Ceasing Russian Membership in the Council of Europe

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Between a Rock and a Hard Place: The Dilemma of Continuing or Ceasing Russian Membership in the Council of Europe

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