Batura, Justine

Berg, Axel

Sabuncu, Muratcan

English

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“What Should Be a Better Alternativeto the Council of Europe’s UniqueSystem?”Axel Berg, Justine Batura, MuratcanSabuncu2021-03-24T14:00:38From November 2020 until May 2021, Germany holds the Presidency of theCommittee of Ministers, the Council of Europe’s decision-making body. At thehalfway point of the term, we had the chance to discuss the presidency’s goals andthe current challenges of the Council of Europe with Dr Axel Berg, a former Germandiplomat and currently Special Adviser on the German Presidency of the Councilof Europe at the German Foreign Office. Before taking up a career in diplomacy,Dr Berg was a Researcher at the Max Planck Institute for Comparative Public Lawand International Law. As his thorough analysis shows, he combines profoundknowledge in the field of international law with practical experience in the diplomaticand political arena. In view of the priorities set for the term of the German Presidency, how do youassess its possible impact? Where could the German Presidency represent an“added-value”?As we see it, and as stated in the Presidency’s priorities,  the German Presidency isan opportunity• to uphold human rights, democracy and the rule of law,• to shape the future and• to bring Europe closer to the people.This being said, six months are a very short period in international relations, notthe least in the Council of Europe, if you want to achieve tangible results. That iswhy we decided that the German Presidency should concentrate its efforts on a fewimportant items, where we thought we could contribute in a particular way.With regard of upholding human rights, democracy and rule of law, our first priority,the goal is to highlight the special role of the European Court of Human Rights andin particular to contribute to a better implementation of its judgements. In additionwe want to promote the accession of the EU to the European Convention on HumanRights, where we indeed had a special situation that you could describe as an“added value”, since Germany was holding both the Presidency of the Council of theEuropean Union and the Presidency of the Committee of Ministers of the Councilof Europe at the end of 2020. Here we were very much engaged in generating- 1 -synergies between those two tracks, in the relevant fora, in our consultations withMember States as well as with the EEAS.Regarding future challenges, the German Presidency is paying special attentionto the ongoing work of the Council of Europe’s Ad hoc Committee on ArtificialIntelligence. Besides diplomatic efforts to achieve some first results, as the adoptionof the feasibility study, a high-level conference was organized by the Presidencyin co-operation with the Council’s Secretariat to foster further progress. At anotherconference on hate speech, we tried to promote anti-discrimination strategies, thusagain supporting the valuable work of the Council of Europe in this field. Bringingthe Council of Europe closer to the people, includes a number of events in whichwe, together with other stakeholders, think tanks and our embassies in MemberStates, inform about and discuss the goals and tasks of our Presidency, addressingin particular young people. The role of the Council of Europe is based on the “common heritage” of theMember States (Statute, preamble). Given that there is no uniform conceptionof human rights, democracy, and the rule of law within the 47 Member States,how can the Council propose common policies? An example of the difficultiesfaced in this regard could be the rights of persons of the LGBTI* community(Presidency’s Priorities).The Council of Europe is a unique organization and with its main document, theEuropean Convention of Human Rights, it sets the highest standards worldwide forthe international protection of human rights. And yes, we still describe the underlyingvalues as the “common heritage” of the peoples of the Member States. But throughthe European Convention of Human Rights and more than 200 conventions,agreements and protocols that have been adopted in the framework of the Councilof Europe, we do have a common legal base, which is much more than a “commonheritage”, they are international obligations for all States that have ratified them.It is true that we do encounter different ways of how Member States organize theprotection and implementation of human rights in and into their legal systems. Butit is very clear for all Member States that their constitutions and their law, have tobe in conformity with the European Convention of Human Rights and the other legaldocuments binding them. In cases of doubt, it is for the European Court of HumanRights to decide whether national rules and measures taken by a Member State areviolating these legal obligations.As regards the rights of LGBTI persons, we can see that progress has beenachieved, but more needs to be done. If Member States, or to be more precise,Governments are discriminating those persons, the message is clear: Human rightsapply to everyone, regardless of their sexual orientation and gender identity. TheGerman Government is resolutely opposed to any form of discrimination or violenceagainst LGBTI persons and is working to ensure equal rights for all. - 2 -How does the Committee of Ministers balance Realpolitik with the promotionof democratic institutions and the rule of law and the protection of humanrights?The Committee of Ministers is the place where Realpolitik happens. Here, MemberStates discuss their different approaches to the implementation and protection ofhuman rights or even confront each other, where criticism is expressed, appeals aremade and defense lines are taken. And where eventually, if a State is not willing tochange course, even sanctioning measures can be initiated.This being said, sanctioning measures are only the second-best solution. Convincinga Member State to fulfill its obligations, helping that State to abide by the rules ismuch more reliable and effective. And for that purpose, it is much better if this Stateis a member, while you can make use of all the Council’s mechanisms. When itcomes to the negotiation of new standards, the setting of new rules with regard tothe protection of human rights, here again, Realpolitik comes into play. It is then thetask of the Committee of Ministers or the Ministers’ Deputies and the relevant bodiesto find common ground, or a compromise if you will, to draft a text that is likely to beadopted by all Member States or at least a majority of States. The German Presidency intends to push ahead with the accession of the EU tothe European Convention of Human Rights. Is this still possible in view of thenegative opinion of the Court of Justice of the EU (Opinion 2/13)? What wouldbe the added value of this accession?The German Presidency very much welcomes that the relevant negotiations haveresumed last year in a very goal-oriented and businesslike way. Their main task is todeal with the concerns raised by the European Court of Justice in its opinion of 2014.As regards the European Union, it is bound by the obligation contained in the LisbonTreaty which states that the EU will join the European Convention on Human Rights.An accession of the EU would allow individual applications before the EuropeanCourt of Human Rights against the EU as such. One example could be complaintswith regard to measures taken by the EU in the framework of FRONTEX. It is tooearly to expect a concrete result already during our Presidency, but we do hope for aclear signal for achieving significant progress soon. Human rights are currently facing considerable challenges in light of theCovid-19 crisis. How is the Council of Europe, how is Germany planning toaddress those?Indeed, we are confronted with a totally new situation due to the Covid-19 pandemic,a situation that has to be seen in the light of the existing documents and instruments.The Council of Europe has made clear, on many occasions, that the restrictionstaken by Member States have to be balanced with human rights and must not bemisused. As a consequence, the Athens Declaration of 4 November 2020 states- 3 -that during a crisis and a state of emergency, any exceptional measures taken mustrather be “strictly necessary, proportionate, non-discriminatory, applied only for aslong as necessary and ended once the situation normalises”.Let me also mention here the Istanbul Convention on preventing and combatingviolence against women and domestic violence, since it has unfortunately gainedparticular importance during times of lockdown. Marking the 10th Anniversary ofits first signing, the German Presidency will also take stock of the achievementsof the Convention and the challenges it faces. (Editor’s note: This interview wasconducted before Turkey’s withdrawal from the Convention on 19 March 2021. Asthe current Chair of the Committee of Ministers acting under the German Presidency,the German Foreign Minister reacted jointly with other Council of Europe leaders tothe withdrawal.) The European System is facing significant challenges with regard to theimplementation of the Court’s judgments at national level. Given that someStates are not implementing all judgements, do you think that the Europeansystem is losing its legitimacy as an “international standard-setter of humanrights” (Presidency’s Priorities)?  What is Germany’s approach to increase theimplementation of the Court’s judgements?The Council of Europe is indeed facing challenges. But it is by no means losingits legitimacy, while it has to fight to keep its credibility. It is true that we dohave a number of Member States that are unwilling to implement the Court’sjudgements or are trying to avoid implementing them. But the Council of Europepossesses a number of possibilities and mechanisms that can be used to control theimplementation of the judgements und even exert a certain kind of pressure. TheMinisters’ Deputies are regularly meeting in the so-called “Human Rights format”to go through all judgements that have not been implemented yet. As Germanywas chairing these meetings in the six months before the start of our Presidency,we invested additional energy in achieving some progress in some of the cases.During the meetings, the concerned Member States are given the opportunity torespond and explain the failure of the implementation. At the end, the Ministers’Deputies adopt a decision that mirrors the deliberations and, if appropriate, calls foran immediate implementation, for example the release of a person hold in prison.And this decision is also made public.There is another possibility, which has only been used in one case, under Article46 § 4 of the European Convention on Human Rights, namely to refer to the Courtthe question of whether a Member State has failed to fulfil its obligations to abidewith a judgment of the Court. Additionally, the Committee of Ministers and theParliamentary Assembly agreed on a new complementary procedure that can beinitiated as a response to a Member State’s “serious violations” of its obligationswithin the Council.Yes, I agree, the situation of the implementation of the Court’s judgements is quiteunsatisfactory. But, on the one hand, one should not forget that the Council has been- 4 -and is successful in a number of cases. And on the other hand, what should be abetter alternative to the Council of Europe’s unique system?- 5 -

“What Should Be a Better Alternative to the Council of Europe’s Unique System?”

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“What Should Be a Better Alternative to the Council of Europe’s Unique System?”

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