I warned earlier that allowing the unconditional return of the Russian delegation to the Parliamentary Assembly of the Council of Europe (PACE), driven mainly by French and German naivete, will cost the authority of the Council of Europe (CoE), or maybe even its existence.
The Ukrainian, Georgian, UK, Polish, Lithuanian, Latvian and Estonian delegations, who protested the decision, are now in consultations with capitals and national parliaments on the modalities of further work in the PACE. All this because the Council of Europe seems to be turning into an institution of unconditional submission to the Kremlin’s demands, which only encourages its further aggressiveness.
In this painful context, many Western and Eastern European analysts have likened such Western naivete to Munich or Yalta, which led to World War II and, later, to the occupation of Eastern and Central Europe. As the CoE becomes a new “Munich plot”, it raises further questions about the organization’s future.
Since the power of the Council of Europe lies mainly in its authority, we have to find a way to rebuild it immediately. Otherwise, eventually, the deliberations in the PACE with the Russian delegation or in the Committee of Ministers will interest even fewer people and this effect will spill over to doubting the authority of the Venice Commission or Commissioner for Human Rights and, at the end of the day, doubts will be raised regarding the authority of the European Court of Human Rights.
Without its authority, the Council of Europe will become irrelevant and obsolete. And this will be the end of the Council of Europe as we know it since its establishment in 1949.
What Lithuania should do?
In the face of these challenges, what can countries like Lithuania, who protested against Russia’s unconditional return, do?
The reply to this question is quite straightforward – before considering discontinuation of work in the Council of Europe, one has to try another way. We need active, coordinated, effective and even unprecedented actions to save the Council of Europe. And only if these active efforts fail to bring a positive result, there will be no other way other than to say “we are done here”.
The Council of Europe has needed a resolute change for some time already. The crisis of the Council of Europe is not functional or financial, it is a deep crisis of values and is related to Russia and its behavior in the European continent. While running for the position of the Secretary-General of the CoE, I heard this notion in many of my conversations with experts, diplomats, and politicians, who are deeply familiar with the workings of the organization.
However, the current authority crisis of the Council of Europe provides a possibility to initiate an essential value-driven change in the organization, rather than a mere bureaucratic pseudo-reform. It is also a good opportunity to demand immediate implementation of such reform. This is the only way to re-establish the authority of the CoE.
To achieve a serious debate in the Council of Europe and in all European capitals on reforms, it is necessary that countries, which oppose the unconditional return of Russia, unite in a coalition and speak with one voice. A Coalition of Democracy Defenders should be formed. This coalition should also unite the parliamentarians in the PACE, who understand the scale of the damage done to the CoE by the decision taken last week in Strasbourg.
The main aim of the Coalition should be to seek resolute reforms of CoE activities. Therefore, the Coalition should prepare a program of the CoE value-driven reforms, which could include at least five concrete proposals:
Program of value-driven Council of Europe reforms:
I. A joint inter-state application to the European Court of Human Rights (ECHR) regarding continuous and systemic violations of the European Convention on Human Rights.
A joint application, using Art. 33 of the European Convention on Human Rights, to the ECHR regarding the continuous and systemic breach of the Convention by Russia, among others also in the occupied Crimea and Donetsk, could be the first action taken by the states united in the Coalition. Such an international law instrument is rarely used, the most notable example is the inter-state application of Sweden, Denmark, Norway, and the Netherlands vs Greece.
The CoE was unable to arrive at the decision on suspension of Greece’s membership in reaction to the Colonels’ coup d’état in 1967. This inter-state application broke the deadlock and after the ECHR’s conclusion, Greece asked to suspend her membership to avoid expulsion by a subsequent decision of the CoE. This was a first of its kind action when members not directly affected by violations of human rights in another member addressed the ECHR, as a principle of defense of the values enshrined in the Convention.
Ukraine has submitted an application vs Russia to the ECHR concerning human rights violations in the annexed Crimea. Similarly, several applications regarding human rights violations in the occupied territories of Georgia by Russia have been submitted by the Georgian government. However, if an application regarding violations of the Convention in Russia and in the territories occupied by Russia would also be submitted by the UK, Poland and the Baltic States, this action would also encourage other democracies to choose sides and give a clear answer as to what is more important to them – values or money/member contributions.
II. Category “B” membership in the Council of Europe
The CoE faces a systemic challenge due to the fact that all members of the organization are equal. Russia, which systemically abuses the Convention, enjoys the same membership status, like Sweden or Switzerland, which are promoting human rights. In addition, the CoE has a very limited arsenal of instruments on how to affect misbehaving members. There are two possibilities – words of critique, which do not have a real effect on countries like Russia, or suspension of membership – used only in very exceptional cases.
The latter instrument was applied only a few times throughout the 70 years-long existence of the CoE. The suspension of membership is a painful decision to take because the citizens of a country lose access to instruments of defense of human rights provided by the ECHR.
However, if the CoE continues treating Russia on the same footing as, for example, Sweden, the citizens of Europe will eventually draw the conclusion that the CoE applies double standards to its members and lets Russia ridicule the values and standards promoted by the CoE. Already today we witness this duality in action eroding the authority of the CoE.
As the history of the CoE shows, for the founding members of the CoE, mutual dialogue and criticism of each other was sufficient motivation to strive for a better implementation of the Convention. After the Berlin Wall collapsed, Eastern and Central European countries may have felt less affected by mere dialogue, however, they soon realized that the standards of the CoE must be implemented because it is a stepping stone on the path towards the desired membership in NATO and the EU.
Thus, it became a very effective way to oblige us, Eastern Europeans, to implement the requirements of the Convention. Unfortunately, the CoE has no comparably effective tool vis-a-vis countries like Russia, which have no desire to become part of the West or adopt the Western values. On the contrary, Russia looks for ways to discredit all value-based organizations created by the West, particularly, where Russia is a member.
This situation has to be rectified. Countries, which continuously and grossly violate the Convention without any fear of losing their membership need to realize that such behavior is punishable and their membership status in the organization may be downgraded.
Therefore, the Coalition should propose to change the Statute of the CoE to provide a status “B” membership. Such membership would apply to those members, who systematically abuse the Statute and values. The citizens of such “B” member countries would retain their right of application to the ECHR, however, the powers of governments of such countries in the CoE would be restricted.
III. Creation of a Stability Fund of the CoE, eliminating blackmail threat from Russia.
Throughout the years the CoE has allowed Russia to use primitive financial blackmail when Russia was not happy with the decisions of the CoE. After the occupation of Crimea, Russia finally faced sanctions limited to the PACE. In reaction, the Kremlin reverted to usual tactics – to stop paying a membership fee in order to blackmail the whole CoE. In two years, the debt of Russia accumulated to 70 mln EUR, which is a significant amount to lose for the CoE, as its annual budget is only 240 mln EUR.
The latest developments confirm the effectiveness of blackmail tactics. The West decided to return the Russian delegation in exchange for only one demand – Russia must pay the debt amount as soon as possible. Thus, Russia has imposed a choice upon the West – values or money. Regrettably, the CoE decided to choose the latter, striking a blow at its own authority.
To avoid the situation repeating in the future, the Coalition should propose to establish a CoE Stability Fund. In this fund, a certain amount would be put aside, amounting to a yearly membership fee paid by Russia. Thus, countries like Russia would lose a tool of financial blackmail against the CoE.
IV. New protocol to the European Convention on Human Rights, defining the right to live in a non-occupied homeland.
In conversations with diplomats and experts, I often heard that the occupation and annexation of Crimea and Russia’s aggression against Ukraine are not related to human rights, therefore it is not for the CoE to discuss these issues, they belong to the array of issues under the mandates of other international organizations.
I do not argue that other international organizations also have to discuss Russian aggression. However, it would be rather strange if the CoE, which does not give membership to countries unless they abolish capital punishment, which takes harsh measures against countries who tolerate torture in prison, would close its eyes to actions, which result in people losing their homeland, freedom and the loss of life of tens of thousands.
To eliminate the legal ambiguity, the Coalition should propose a new additional protocol to the Convention clarifying its contents. The clarification would be very simple – each person has a right to live in a non-occupied homeland, not only the right to life or the right to be free from slavery granted by the Convention. The right of a person to live in a free homeland is no less important than the right to their life.
V. Europe needs not only Ombudsman for Human Rights, it needs also Ombudsman for Democracy.
The CoE established an institution of human rights ombudsman to ensure a thorough oversight and defense of one of the core values safeguarded by the organization – human rights. Another core value of the CoE – the rule of law – is defended by another institution, the Venice Commission overseeing the rule of law on the European continent.
However, the third core value of the CoE – democracy – has the weakest defense mechanism. The lack of institutionalized protection allows undemocratic governments like in Russia to manipulate the entire organization. Institutionally-wise, the CoE is ambivalent to democracy values, and, due to equal membership status, Russia can affirm without a challenge that it is as democratic as Sweden.
Democracies do not go to war with each other – this is proven by history. Therefore, the CoE must prioritize not only human rights but also democracy.
The Coalition should propose to establish the institution of Ombudsman for Democracy of the CoE. This would give an answer to the question – is Russia as democratic as Sweden? And if not, then maybe there are ways to help the one which is lagging behind? Among other things, also by attributing a different membership status in the CoE.
These are only a few suggestions for the Coalition of Democracy Defenders to propose for a debate in the CoE, the PACE and European capitals.
The history of the CoE demonstrates that in solving crises like this, the Parliamentary Assembly and parliamentarians, who defend true European values, play a crucial role. The last PACE meeting made a mistake by agreeing to restrict its own right to apply sanctions. Only parliamentarians fighting for democratic values can restore the lost authority of the CoE. Therefore, the Coalition should also propose the reinstatement of independence of the PACE and its autonomy in matters relating to the values defended by the CoE.
By initiating the creation of the Coalition of Democracy Defenders in the CoE and by suggesting the Coalition to implement a program with specific steps, Lithuania would do important work – save the CoE, one of the most important institutions of democracy and human rights, and save the prestige of the West.
Andrius KUBILIUS is a Member of the European Parliament and former Prime Minister of Lithuania