Contents | Key Points | Foreword | Preface | One | Two | Three | Four | Five | Appendixes: 1 2 3 | Notes | Author

The Quest for Democratic Security The Role of the Council of Europe and U.S. Foreign Policy

Toward a Community of Democracies on the European Continent

The Need to Safeguard Democracy and Human Rights: A Bitter Lesson of History
The Council of Europe’s principal raison d’être, which gives it the legitimacy to play a leading role in the democratization process in Europe’s eastern half, is sometimes forgotten. The council exists to promote and safeguard democratic values, human rights, and fundamental freedoms. Though it has evolved considerably in institutional terms since its founding, the council remains true to the original principles and goals of its architects.

     After the experience of war and totalitarianism in Europe, many political and opinion leaders stood up for European unity to prevent history from repeating itself. The decisive initiative came from Britain’s wartime leader, Winston Churchill. In his memorable speech on September 19, 1946 in Zurich, Churchill suggested that European states form “a kind of Council of Europe”—the first step toward creation of the United States of Europe.⁷ Strength through unity was his advice to the European nations, both victors and vanquished. But the new organization was also to bar the resurgence of totalitarianism and the recurrence of the horrors of World War II. Churchill’s own country could not join because it had world wide obligations as head of the Commonwealth. Why did he exclude the Soviet Union? Apart from the fact that its participation was politically inconceivable at the time, balance-of-power considerations—traditionally a component of British political thought regarding the continent—cannot be dismissed. The participation of the Soviet Union and its satellites was simply not a practical proposition, the Iron Curtain (also a Churchillean concept) having split Europe into two parts.

     The participants in the 1948 Congress of The Hague followed up on these ideas, conceiving the Council of Europe as eventually a pan-European regional organization of general competence.⁸ Original federalist ambitions had already been watered down and were further thwarted in the subsequent intergovernmental negotiations. The United Kingdom was now to be a part, since the new organization would not trespass into domains reserved to national sovereignty.

     The Congress of The Hague put special emphasis on democracy, the rule of law, and the respect for human rights and fundamental freedoms. In addition to a first outline of a Council of Europe Statute, participants called for a charter of human rights. Thus on May 5, 1949, ten European states signed the Council of Europe Statute and became its founding members.⁹ The European Convention on Human Rights (ECHR) was signed in Rome one year later, in November 1950. Readers of the statute (Article 1 on the aim of the Council of Europe) will note that the council, in addition to being a community of democratic values, was originally meant to become the European organization for political and economic cooperation. However, other organizations, notably the OECD and the EU, took over its potential tasks in the economic field.¹⁰

     On the political side, whereas member states generally agreed on the basic objectives of democracy, the rule of law, and human rights, they sharply disagreed on the degree to which national sovereignty should be surrendered to achieve the council’s objectives. Some members appeared ready to engage themselves on the path toward supranationality and federation. For example, Belgium, France, Germany, Italy, Luxembourg, and the Netherlands joined together in 1950 for the Schuman Plan—the European Coal and Steel Community (ECSC), which had significant supranational elements. At the time, the United States paid particular attention to the plan. On both sides of the Atlantic, it was thought that pooling the resources of Western Europe’s coal and steel industries would render war between France and Germany henceforth impossible. This idea was not yet the concept of democratic security but, rather, a mechanical process to maintain peace based on diminishing the factors of war making at the time. This initial effort at forging European integration was followed in 1957 by the European Atomic Energy Community (Euratom) and the European Economic Community, later referred to collectively as the European Communities, then the European Community, and, since the 1992 Maastricht Treaty, as the EU.

     At the end of the 1990s, there can be no doubt that the dynamic part of the movement toward European unity is the EU. As one of the world’s greatest economic forces next to the United States, it also has increasing political weight. Like the Council of Europe (and NATO), the EU is engaged in a geographical enlargement process. EU heads of state and government confirmed at their 1993 meeting in Copenhagen their commitment to incorporate Central and East European countries holding partnership and association agreements with the EU when they meet the economic and political requirements. However, no Central or Eastern European country has attained full membership so far.¹¹ The EU is currently assisting these countries to develop market economies, which, in the Western view, are inseparable from democracy.

     At its Vienna Summit, the Council of Europe committed itself “to promote the integration of new member states and . . . the policy of openness and cooperation vis-à-vis all the countries of Central and Eastern Europe that opt for democracy.” By the end of 1997, the council had already extended itself virtually across the entire continent. The question remains, of course, whether this enlargement process was too rapid. However it may be, as long as the EU has not gone much further in its own geographical extension to the east, and as long as its substantive competence has not been further enlarged, the Council of Europe remains an indispensable structure of European cooperation. It is complementary to the EU and is politically indispensable for holding together the states of the continent that are committed to democracy, the rule of law, and the protection of human rights, even if such commitment is not always reflected in everyday practice.

Democracy in Council of Europe Law
The council’s constitutive charter, the 1949 Statute, clearly characterizes the organization as an association of democratic states. True, it does not provide a detailed definition of democracy and the rule of law, nor does it spell out in detail what constitutes human rights. Like the signers of the American Declaration of Independence, the statute’s drafters held certain truths “to be self-evident.” The word democracy appears in the statute’s preamble, which refers to “the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty, and the rule of law, principles which form the basis of all true democracy.”¹²

     Article 1, to be read in conjunction with the preamble, stipulates that “the aim of the Council of Europe is to achieve greater unity between its Members for the purpose of safeguarding and realizing the ideals and principles which are their common heritage.” The aim is to be pursued through “the maintenance and further realization of human rights and fundamental freedoms.” Article 3, concerning members’ obligations, provides that “Every Member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realization of the aim of the Council.”¹³ Under Article 4, only those states “deemed to be able and willing to fulfill the conditions of Article 3 may be invited to become Members.” The wording here is significant. It is not decreed that members must strictly abide by all the standards at the time of entering the organization; instead, they must be “able and willing” to meet them.

     The 1949 Statute does not expressly refer to freely elected parliaments as a condition of membership. This gap was filled by the first protocol to the Convention on Human Rights, establishing a right of democratic governance by committing the contracting parties “to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”¹⁴ Furthermore, it is implicit from the statutory provisions for the council’s Parliamentary Assembly that there must be elected parliaments in member states. When they disappear without new elections being called within a reasonable time, the member state concerned may have to leave the organization in accordance with Article 8 of the statute. In fact, the article has been applied only once in the history of the Council of Europe with regard to Greece, whereas its application has been considered on several occasions with regard to Turkey.¹⁵

     Concerning the rule of law, the statute’s drafters apparently took its meaning for granted. However, one can point to Article 6 of the ECHR (fair trial) and the jurisprudence of both the Commission and Court of Human Rights as an indication of the council’s commitment to the rule of law among its members. The admirable detailed definition of the meaning of the rule of law in the June 1990 CSCE/OSCE Copenhagen Document also should be mentioned in this context.

     The general references to human rights in the statute were spelled out in precise detail in the ECHR, which has come to be part of what one may call the Council of Europe’s “constitutional law.” There is general agreement that no state can become, or remain, a member without accepting the ECHR. With its supranational judicial machinery, the convention is so far the most effective regional instrument for the protection of human rights, and its area of application will soon cover the whole of the European continent.¹⁶

     This does not imply that the ECHR offers European citizens flawless protection against the violation of their basic rights. Media reports reveal again and again that this is not so—and not only in the new member countries of the Council of Europe. One of the main reasons the convention is not fully effective is the lack of information; citizens are not sufficiently aware of the rights these European institutions protect, and lawyers are often not familiar with existing procedures. Accordingly, the council greatly emphasizes information about the convention—the rights individual member states are obliged to respect and the legal machinery at the citizen’s disposal.

     In the council’s founding member states, the ECHR has proved its efficacy, which does not mean that these states have perfect records in protecting their citizens’ basic rights. The convention has prompted numerous changes in national law, and governments have always, if sometimes grudgingly, respected judgments of the court, even when they were asked to introduce reform legislation or to pay compensation to victims. It is too early to evaluate the convention’s effect in the new member states. Apart from the problem of the information gap, some observers point to the time factor as a drawback in the court’s procedure. Namely, cases can be brought before the court (in Strasbourg) only after all national remedies have been exhausted (in other words, after a final unsuccessful appeal under domestic law). This process usually takes a great deal of time.¹⁷

     The Convention for the Prevention of Torture and Inhuman and Degrading Treatment allows preventive action.¹⁸ A committee of independent experts can make visits to prisons, police stations, or other venues on short notice. It then drafts a report, which, initially, is confidential. If after a second visit, the committee concludes that conditions have not sufficiently improved, it can decide to publish the report. If the violation continues on a large scale, the state could be expelled from the organization under Article 8 of the statute. It has now become widely accepted for the state concerned to publish the committee’s report, even when the report is critical, to avoid the negative connotations of withholding publication.¹⁹

     The Framework Convention for the Protection of National Minorities can be seen as a further extension of the ECHR and the council’s statute.²⁰ The Framework Convention states at the outset that the protection of national minorities is part of the international protection of human rights and thus an object of international cooperation. In other words, national minority rights are not an “internal affair” in the meaning of Article 2 (7) of the United Nations Charter.

     One may argue that human rights scholars have held this position for decades. One can also point to the report of the 1991 CSCE/OSCE Meeting of Experts on National Minorities in Geneva, where the participating states agreed that “Issues concerning national minorities, as well as compliance with international obligations and commitments concerning the rights of persons belonging to them, are matters of legitimate international concern and consequently do not constitute exclusively an internal affair of the respective state.”²¹ However, this is the first time that the principle was incorporated in a legally binding multilateral treaty. It is also a good example of the complementary and mutually reinforcing role of international organizations and of how principles of international law are consolidated incrementally. At the same time, we have a long way to go before this principle is to be considered generally respected, even in Europe—recent events in Kosovo testify to this unfortunate reality.

     The Framework Convention entered into force on February 1, 1998. By August 31, 1998 it had been signed by thirty-six of forty member states (including all member states of the EU, with the exception of France and Belgium) and by one nonmember state (Armenia). Twenty-three states have ratified the convention so far.

     The convention includes a follow-up procedure under which contracting states are to submit reports on its implementation to the Council of Europe’s Committee of Ministers. The latter, assisted by a consultative committee, is responsible for drawing conclusions and taking any steps it may consider appropriate. Admittedly, the convention’s procedures are weak and in no way comparable to the control mechanisms of the ECHR (commission, court, and Committee of Ministers).²²

     Even where the convention is not legally observed, it is already widely used as a reference text, thus contributing to the formation of customary international law on this subject. Also, like other international legal texts (such as Section IV of the OSCE’s Copenhagen Document concerning minority rights and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities, adopted by the UN General Assembly on December 18, 1992), the Framework Convention was made legally binding before entering into force through its inclusion in bilateral treaties (for example, the treaties on good-neighborly relations and friendly cooperation concluded between Hungary and its neighbors Moldova, Romania, and Slovakia).23

     Since the Framework Convention was opened for signature, the council’s Parliamentary Assembly insists that a prospective member state promise to sign and, in due course, ratify the convention before the council votes a positive opinion on the state’s membership application. One can argue that the assembly is applying different yardsticks—one for Western members of the Council of Europe and another for the newcomers from Central and Eastern Europe. This is true, but two reasons account for these different standards. First, the convention was opened for signature on February 1, 1995; its acceptance as a condition of membership cannot be made retroactive. However, before the convention came into being, the assembly insisted that candidate states “base their policy” on the principles laid down in its 1993 Recommendation 1201 to the Committee of Ministers for an additional protocol to the ECHR.²⁴

     Second, the Council of Europe, like the United Nations, the OSCE, the EU, and the United States, was preoccupied by the gravity of certain minority issues in Central and Eastern Europe and their threat to stability throughout the region. It is for this reason that the United States seems to have insisted that Hungary, Slovakia, and Romania come to an agreement to sign and ratify the aforementioned treaties on good-neighborly relations and friendly cooperation (which integrated the Framework Convention as obligatory among the parties). Europeans and Americans alike were, and still are, preoccupied with ethnic (and religious) conflict in ex-Yugoslavia, but also in other parts of Central and Eastern Europe. Such conflicts are obviously a threat to democratic security in the region.

     The Committee of Ministers, in accordance with the decisions of the Vienna Summit, adopted the Framework Convention and never expressed disagreement with the assembly’s insistence that new member states sign and ratify it. Still, it is clear that some of the older member states will not sign the convention, for either reasons of principle concerning the equality of all citizens before the law or the massive presence of noncitizens on their national territories. So far, the convention has not been signed by Andorra, Belgium, France, and Turkey. “Equality before the law” defines more particularly the position of France. When the convention was opened for signature, the French government asked the country’s highest administrative court for an opinion on two questions. First, is the convention compatible with the French Constitution? Second, if not, could France still sign it with a reservation referring to Article 1 of the constitution, “equality of all citizens before the law without regard to origin, race, or religion”?

     The court’s reply to both questions was no. Signing with the proposed reservation, it said, would be contrary to the international legal principle of good faith. Turkey’s legal position is the same (according to Article 10 of its constitution), though obviously further complicated by its reluctance to grant minority rights to its Kurdish population. Andorra invokes the fact that the majority of its inhabitants are foreigners, and Belgium is torn by its constitutional problems of cohabitation by its Flemish and Wallonian populations.²⁵

Democracy: A Dynamic Definition
Democracy is not a static concept. Whereas the fundamental precepts of democracy remain immutable, its practices have changed over time. They have been reinterpreted and adapted to changing societies and to economic, scientific, and technological transformations. Among the actors involved in this process in Europe is the European Court of Human Rights, which, like the U.S. Supreme Court, has been called upon to determine what limitations are necessary and which freedoms must be absolutely protected in democratic societies under going profound societal changes.

     Because the Council of Europe was conceived from the outset as an association of demo cratic states, it became a kind of repository of democratic values in Europe. Unless Europe’s institutional landscape changes radically some day—which would be the case if and when the EU extends across the entire continent—the Council of Europe will remain the widest European intergovernmental organization. In short, the Council of Europe represents a kind of continental consensus on democratic standards.²⁶

     The closest thing to an operational definition of democracy in Europe emerged from the first Strasbourg Conference on Parliamentary Democracy held in 1983.²⁷ The conference unanimously adopted the Strasbourg Consensus, which enumerated the indispensable ingredients of a genuine democracy:

Human freedom and human dignity, freedom of speech, freedom of thought and freedom of conscience, the right to criticize and the right to freedom of movement are indispensable foundations of human co-existence. Their protection and enhancement are central to all action by the state.

This protection is served by:

• the citizen’s right to choose and change government in elections conducted under universal suffrage and by secret ballot,

• the responsibility of the executive to the elected representatives of the people,²⁸

• the right and duty of those elected representatives to regulate life in society by means of laws and to control the executive.

  A democracy is an open society in which all state power is derived from the people. This implies:

• the right to participation and consultation in political decision making at the local, regional and national level.

• free access to information and free choice between different sources of information,

• the freedom of the press and the media,

• the freedom to form political parties and to stand for political office,

• freedom of association, including the right to form trade unions,

• the right to participate in the determination of working conditions,

• freedom from slavery and the exploitation of human labor.

  Democracy guarantees human dignity. This implies:

• the right to life, liberty, and respect for the human person,

• freedom of speech, thought, and conscience,

• freedom of religious observance,

• free movement of persons, goods, and information,

• the right to school and post-school education, preparing the individual for life in a democratic society.

  Equality before the law regardless of sex, race, color, creed or birth, requires:

• an independent judiciary,

• the possibility of subjecting all decisions of the executive to judicial scrutiny,

• the subordination of the police and the armed forces to the elected government,

• the right to privacy and protection of personal freedoms.

  In a democracy, these rights and freedoms are subject to only such restrictions as to secure protection of the rights and freedoms of others.²⁹

     The dynamic process of defining democracy continues as new states from Central and Eastern Europe are incorporated into the “family of democratic nations.” The particular challenges facing these countries in their transitions to democracy (with regard to national minorities, for example) have forced a further reexamination of the meaning of democratic freedoms and an extension of protection to cover cultural rights and minority languages.

The Rapid Pace of Eastward Expansion
The first East European state to make known its wish to join the Council of Europe was Hungary. In November 1988, Gyula Horn, then secretary of state for foreign affairs, announced that his country—still part of the Soviet bloc—wished to become the twenty-fourth member of the council. As evidence of its intent to distance itself from the Soviet bloc, Hungary could point to its unsuccessful armed uprising against the Soviet empire in 1956. Then, in the autumn of 1989, Hungary broke the law of the “Community of Socialist States,” when the Hungarian and Austrian foreign ministers jointly set out to cut the barbed wire dividing East and West at the border between the two countries and let thousands of East Germans flee to West Germany via Hungary and Austria. Hungary held free and fair elections in March–April 1990, and in November 1990, Hungary became the first former communist country to join the Council.³⁰

     Poland was disappointed to have been bypassed by Hungary, considering that the Solidarity movement, founded in 1980 and crushed by General Jaruszelski in December 1981, entitled Poland to be the first to join the Council of Europe. There was much sympathy for Poland’s position, even more so after the (partly democratic) elections of June 4, 1989: In a spirit of democratic transition, General Jaruszelski called upon Tadeusz Mazowiecki to be the first noncommunist prime minister. Polish disappointment grew when, in February 1991, following free and fair elections in June 1990, the Federal Republic of Czechoslovakia became the second ex-communist member state of the Council of Europe.³¹ In October 1990, the council’s Parliamentary Assembly had recommended to the Committee of Ministers that Poland be invited to become a member as soon as free general elections were held.³² Indeed, after the July 1989 elections, only the Polish Senate (where Solidarity had obtained an overwhelming majority) could be considered democratically elected. In the National Assembly, 40 percent of the seats had been reserved for the Communist Party, in accordance with an agreement between Lech Walesa (then the leader of Solidarity) and Interior Minister General Kiszak. Following new general elections, Poland became the third member from the East in November 1991.

     After some discussion, Bulgaria was admitted in May 1992.³³ One year later, three new members joined the council the same day: Lithuania, Slovenia, and Estonia.³⁴ In these three cases, the countries accepted the classical references to Article 3 of the statute and the willingness to “cooperate sincerely and effectively in the realization of the aim of the Council of Europe.” They promised as well to sign and ratify the ECHR, including the formally optional clauses in Articles 25 (right of individual petition) and 46 (jurisdiction of the court). Further, the council’s opinion on Lithuania insisted on the importance it attached to the principles enshrined in the council’s Charter of Local Self-Government (ETS 122)—a reaction to clashes between the central government and the city council of Vilnius.³⁵

     Having “divorced” on December 31, 1992, the two federated republics of the Federal Republic of Czechoslovakia—the Czech Republic and Slovakia—separately became members in June 1993.³⁶ In both cases, the assembly insisted on the respect of minority rights, in accordance with its proposal for an additional protocol to the ECHR, in addition to the “classical” conditions and the prospective members’ promise to sign and ratify the convention.

     Whereas the admission of the Czech Republic passed without difficulty, that of Slovakia met with resistance from Hungary, which was preoccupied with the rights of the large Hungarian minority in Slovakia, notably with regard to its cultural identity: language, education, and other relevant attributes. Two specific concerns were the right to use surnames and first names in the Hungarian language, and the display of bilingual road signs, street names, and other similar signage in areas where a “substantial number of a national minority” are settled. The Hungarian representative threatened to veto Slovakia’s admission to the Council of Europe if these points were not met.³⁷ The impasse was overcome through an initiative of Tarja Halonen, a member of the assembly, now Finland’s foreign minister. The proposal introduced a system of monitoring commitments assumed by new members. For Slovakia, this includes the commitment to base its minorities policy on Recommendation 1201; the aforementioned points are unambiguously covered by Article 7 of that text.

     The admission of Romania, whose membership in October 1993 brought the number of Central and Eastern European states admitted during that year to six, proved to be much more controversial. The admission was warmly supported by France, which saw Romania as an outpost of Latin civilization and an ally in the defense of “Francophonie.” Indeed, for Romania’s educated classes, French had traditionally been the first foreign language. Other Latin countries, like Italy and Spain, also gave strong support to Romania’s accession. In the end, a large majority of the assembly’s members voted for a favorable opinion on Romania’s membership. However, a long list of specific commitments by Romania and expectations expressed by the assembly was included.

     Many parliamentarians expressed their uneasiness on Romania’s membership, asking themselves if the admission of that country had not been premature, if democratic reform had gone far enough. The European press was generally critical. Subsequent monitoring reports confirmed that democratic institutions in Romania required further consolidation. Most observers would agree that the election of Emil Constantinescu in 1996 to succeed President Ian Iliescu (an ex-Communist who had become an opponent of Ceaucescu before the latter’s summary trial and execution in December 1989) constituted a positive development.³⁸

     After a temporary interruption in the enlargement process, 1995 again saw admission of five new members. In February, Latvia was finally admitted, two years after the two other Baltic states. The main reason for the delay, despite the confidence and sympathy this small country enjoyed, lay in the protracted discussions on its new law on citizenship, considered unfair to the country’s ethnic Russian community and other minorities. It has been argued —not without justification—that on the question of citizenship, the Council of Europe and OSCE’s human rights commissioner have treated Latvia much more severely than the Czech Republic. Again, this new member was admitted with a long list of specific commit ments to undertake democratic reforms.

     In July of the same year, Albania and Moldova were admitted. Once more, the process was not without hurdles, as indicated by the length of the assembly’s opinions to the Committee of Ministers (188 and 189), with very specific indications and commitments on necessary reforms. The Moldovan case was further complicated by the problem of Transdniester, the ethnic Russian enclave, which still awaits a satisfactory solution. Under the rule of Igor Smirnov, Transdniester constitutes a relic of totalitarian communism.³⁹

     Regarding Albania’s membership, the suspense continued until the very last moment. It was late in the night of June 26, 1995, when Speaker Arbnori agreed with the Swiss rapporteur of the Parliamentary Assembly to sign the commitments, which were included the next morning in the text to be voted on by the assembly. Three years later—confronted with a still chaotic situation in Albania and the international community’s inability to resolve it—one cannot escape the conclusion that Albania’s admission was premature. It seems that too much confidence was placed in President Berisha’s image as a committed democrat, but his personal charm was not lost on many politicians of the Council’s older member states. Events also have shown that the Council of Europe alone is not in a position to master such situations. As Russian Communist leader Gennady Zyuganov has warned, if an “Albanian situation” arose in Russia, it would be completely uncontrollable.

     Macedonia and Ukraine joined the council in November 1995. Again, long lists of commitments and expectations were included in the assembly’s Opinions 190 and 191 on the countries’ membership. For Macedonia, with its multiethnic composition, minority rights were a particular issue. The opinion on Ukraine took note of reform measures promised by the Ukrainian authorities (such as the preparation of a new constitution and a series of legal and judicial reforms) and Ukraine’s commitment to sign and ratify a number of key conventions, including the abolition of the death penalty, the anti-torture convention, the Framework Convention for the Protection of National Minorities, and the Charter of Local Self-Government.

     Whether or not to invite Russia to become a member of the Council of Europe was no doubt the most difficult decision in the organization’s history. However, the Soviet Union had already staked an informal claim as early as 1989, when Gorbachev prepared to visit the council. On the same occasion, the director general for security and cooperation in Europe declared the Soviet Union’s “readiness” to adhere to the ECHR.⁴⁰ In the summer of 1989, the USSR Supreme Soviet was granted the newly created special guest status in the Parliamentary Assembly, a status the Russian Federation inherited. Whereas the latter applied for full membership in May 1992, the procedure progressed slowly for two main reasons.

     First, the council was divided on the question of whether Russia should be a member at all. A former president of the assembly had summed up this quandary with the phrase “part or partner?”⁴¹ In other words, should Russia be integrated into the Council of Europe as a full member, or should some kind of cooperative relationship be established? In the beginning, a number of member states, such as the Netherlands and countries that had suffered under the Soviet empire—like Estonia and the Czech Republic—expressed opposition. Others were half-hearted in their support, and many diplomats expressed their anxieties behind the scenes. However, it soon became clear that the major member states, among them the “Big Four” (France, Germany, Italy, and the United Kingdom), wished the council to admit Russia for overriding political reasons. Russia could not, at least for a very long time, become a member of the EU or NATO, but it was important to link that country firmly to Europe. The council of the EU also appealed to the Council of Europe to admit Russia “as soon as possible.”

     Second, it was obvious that Russia’s internal legal order did not meet the Council of Europe’s standards. Given the sheer size of the country and the central government’s insufficient control over its distant republics, it was clear that it would take a very long time before Russia could meet those standards. Indeed, the distinguished lawyers mandated by the Parliamentary Assembly to examine the country’s conformity with council standards concluded in October 1994 that, “the legal order of the Russian Federation does not, at the present moment, meet the Council of Europe’s standards as enshrined in the Statute of the Council and developed by the organs of the European Convention on Human Rights and Fundamental Freedoms.” However, they added that they “were, of course, not asked to utter an opinion on the political question whether the Russian Federation should be admitted to the Council of Europe. . . .”⁴² Was this not a tacit invitation to disregard their own findings?

     Following the report, President Boris Yeltsin took the unprecedented step of sending the presidential chief of staff to Paris to meet the assembly’s president and hand him a reaction to the report—not to refute the lawyers’ conclusions, but to enumerate the measures Russia was undertaking to meet the Council of Europe’s standards.

     When Russian armed forces intervened in Chechnya, the council’s member states, like most other Western governments (including the United States) were very careful in expressing their official opinions about the legality of the intervention. Indeed, some Western countries were wary about the possibility of secessionist movements within their own borders. Therefore, criticism of Russia’s action focused exclusively on massive violations of human rights, which—unlike Moscow’s actions to prevent secession—were not an internal affair. The admission procedure was interrupted in February 1995, but resumed in September of the same year on the grounds that Russia was henceforth committed to finding a political solution.

     Governmental pressure in favor of Russia’s admission continued. Some of the assembly’s parliamentarians admitted this during the January 1996 plenary debate. Others indignantly rejected the notion that a member of parliament could be pressured by the executive. How ever this may be, on January 25, 1996, the Parliamentary Assembly adopted by a large majority Opinion 193 in favor of Russia’s membership. Not surprisingly, the opinion is the longest ever adopted by the assembly. It enumerates measures of legal reform and other steps taken by the Russian Federation in the direction of democracy, followed by a list of twenty-five precise commitments by the Russian authorities.⁴³

     The latest country to be admitted (as of March 1998) is Croatia. Its application led to another very controversial discussion in which the Austrian and German delegations were Croatia’s strongest, if by no means uncritical, supporters. Criticism centered on President Tudjman’s autocratic tendencies, restrictions on the freedom of expression, interference in the autonomy of local authorities, human rights violations against non-Croats, and lack of cooperation in the implementation of the Dayton Accords. Opinion 195, adopted in April 1996, contains twenty-one commitments by the Croatian authorities, to which is added a list of further expectations of the assembly. The case of Croatia is interesting in that, contrary to normal practice, the Committee of Ministers did not issue an invitation at the earliest opportunity following the assembly’s opinion. The committee had serious doubts, shared by the council of the EU, about the democratic character of the Croatian regime. In May 1996, the assembly joined the ministers’ position and declared that shortly after the adoption of Opinion 195, the behavior of the Croatian government indicated that it did not take its commitments seriously.⁴⁴ The Committee of Ministers decided to consider the matter again in the autumn. Croatia’s admission finally took place in November 1996, but there is continued concern about the democratic progress of this country.

     At present, four membership candidacies are under consideration in the Parliamentary Assembly: Armenia, Azerbaijan, Bosnia and Herzegovina, and Georgia. Bosnia and Herze govina requires internal consolidation before Council of Europe membership can seriously be envisaged.⁴⁵ Concerning the three Transcaucasian states (Armenia, Azerbaijan, and Georgia), there seems to be a tacit agreement that they should all join at the same time, even if the official policy is that every country should be admitted on its own merits. It is Turkey’s position, in particular, that there should be no discrimination between Armenia and Azerbaijan in terms of membership criteria. Both hoped to accede to the Council of Europe in 1997, but neither is ready yet in democratic terms. Nor is the territorial dispute between the two countries settled—a matter that requires good will on both sides and the cooperation of OSCE. The case of Belarus is shelved for the time being following the suspension of its special guest status. Until genuine democracy appears in what remains of Yugoslavia (Serbia and Montenegro)—and the brutally repressive policy, notably against the Albanian minority, is abandoned—membership of that state cannot be seriously considered, no matter how far one stretches the interpretation of Article 4 of the statute and the council’s “school of democracy” role. In the Yugoslav case, the council’s demo cratic credibility is at stake. Thus it came as a surprise that Yugoslav president Slobodan Milosevic dispatched Deputy Foreign Minister Brankovic to Strasbourg on March 19, 1998 to hand the council’s secretary general a formal letter of application.

     If all the countries mentioned become members of the council, it will reach its geographical limits—unless new independent states are established. Contrary to OSCE practice, the Council of Europe has never considered membership of the Soviet successor states in Central Asia (Kazakstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan). After some debate, the assembly and the Committee of Ministers agreed that membership should be geographically limited to European states, with the exception of states whose territory extends beyond the European domain; indeed, Turkey had already set a precedent.

The Council as a “Community of Values” or a “School of Democracy”
The Council of Europe’s rapid geographical enlargement after the fall of the Berlin Wall provoked a wide debate in the council’s statutory bodies—the Committee of Ministers and the Parliamentary Assembly—as well as in the Secretariat and in the media. The question was whether the Council of Europe would cease to represent a community of values by admitting states whose internal order did not conform with the standards and practices of established democracies.

     Those who feared such a development recalled that the Council of Europe was founded in 1949 to promote and protect the rule of law, human rights, and fundamental freedoms, and to provide an institutional framework among the countries of Europe for common action “to achieve greater unity between its Members for the purpose of safeguarding and realizing the ideals and principles which are their common heritage.”⁴⁶ In the words of the statute’s preamble, the council was created to enhance the community of “spiritual and moral values . . . which form the basis of genuine democracy.”

     In the forty years from its founding to the collapse of the Soviet empire between 1989 and 1991, the Council of Europe had admitted thirteen more members, incorporating every independent state in Europe, except those of the Soviet bloc and Andorra (and Monaco, to the extent that it can be considered a sovereign state).⁴⁷ During this period, admission was a relatively uncomplicated process, requiring an opinion of the Parliamentary Assembly and a formal invitation by the Committee of Ministers. According to statutory law, if a state were “able and willing” to accept the principles of the Council of Europe and work towards its goals, it could be invited to become a member.

     The expansion of the Council of Europe to include the countries of Eastern and Central Europe made the admission process far more intricate, as the incorporation of the former communist states presented a unique set of problems. These countries had only just begun the process of democratization and did not measure up to the standards regarding protection of human rights, the rule of law, and political pluralism. Even where their legal and constitutional orders reflected democratic principles, they lacked the support of a civil society to make them truly effective. Perhaps no one better explained the problem than Sergei Kovalev, Russian president Boris Yeltsin’s former human rights adviser, when he spoke before a joint meeting of several committees of the Council of Europe’s Parliamentary Assembly on January 30, 1995 on the situation in Russia:

[T]he cause lies not only, or not so much, in ill will on the part of the authorities, whether local or federal. Nor does the problem lie merely in unsatisfactory laws. It is rooted above all in the extremely low level of legal awareness both of authorities and of the people. After all, what is the point of proclaiming civil rights and freedoms in the constitution if the people are incapable of asserting them and unaccustomed to doing so? What purpose is served by good laws if the individual citizen is not prepared to obey them? What is the point of reforming judicial procedures if people prefer not to go to the court but to defend their interests through other, often criminal channels? It will take years of intensive work before the majority of the population arrives at the necessary level of legal awareness.⁴⁸

Thus, despite an obvious thirst for democracy after so many years of totalitarian rule, the reforms they had already undertaken, and their desire to join Western organizations, the countries of Central and Eastern Europe were not and could not immediately be considered part of the European community of values represented by the council. As a consequence, many critics believed the prospect of rapid expansion would be damaging to the council’s integrity and credibility. Hasty enlargement, they argued, would dilute the community of values that the council was designed to preserve and to promote.

     These concerns are certainly not unfounded. One can assume that in the enlarged Council of Europe, the overall degree of observing democratic standards, though formally accepted, is lower now than before enlargement. Only the future will show if this situation is limited to a period of transition or will endure and have repercussions in the older member countries.

     In contrast to what might be called the “orthodox purist” notion of the council’s purpose, others argue that the Council of Europe should be viewed as a school of democracy, transmitting democratic values and encouraging the practice of democracy in states where it is not well established. For example, despite his critical evaluation of the situation in Russia and the fact that he had fallen out with Yeltsin, Kovalev pleaded for his country’s admission, believing that membership would speed up Russia’s democratic transition. Proponents of this school of thought reasoned that the community of values was a principle and objective in the Council of Europe, but that it had never been a rigid doctrine. Time and again, the council admitted new states whose internal democratic order was not perfect. Countries that were in most ways solidly democratic, such as Switzerland and Liechtenstein, joined the council at a time when women were still deprived of the right to vote. Upon membership in the council, both fulfilled their pledge to remedy this situation in a short time.

     Portugal was admitted in 1976 with a constitution that would certainly be unacceptable for a new member state today. Its contents had been strongly influenced by the left-wing forces that played a major role in the 1974 Carnation Revolution. Thus, the preamble fixed the establishment of a “socialist society” as an objective of the new republic.⁴⁹ Article 82 permitted expropriation without compensation (contrary to the first protocol of the ECHR). Above all, Articles 142–149 allowed a revolutionary council of military officers to veto any laws adopted by the country’s legislature. In the subsequent revisions of the constitution, all the objectionable provisions disappeared. These examples suggest that it is better to integrate “imperfect” candidates for membership and engage them in constructive dialogue than to exclude them.

     This argument could be supported by maintaining that both Switzerland and Liechtenstein—despite their limited suffrage—were solidly democratic countries, and that council membership encouraged them to extend the voting right to women. The situation in Portugal was probably more serious, at least for a while. In any case, there is no common measure between these problems and the kinds of challenges the Council of Europe faces today. Yet there is a psychological aspect to this debate: The newcomers from Central and Eastern Europe should know that “Westerners” who joined earlier were also subject to scrutiny. Perhaps there is an unspoken hope that if, under the pressure of the Parliamentary Assembly, new member states accept standards not yet recognized by older member states, the latter will follow in due course.

     Protagonists of the school-of-democracy concept consistently maintain that the basic legal standards of the Council of Europe have not been lowered to admit the emerging democracies in Central and Eastern Europe. The statutory rules have not been changed. Rather, partly in response to this concern, additional membership conditions were developed and imposed on candidate countries according to their specific situations. Such conditions commit new member states to undertake reforms, with the assistance of the Council of Europe, to bring their legal, political, and social systems in line with the council’s standards. In such a way, the council will place the new member states in an institutional framework for constructive engagement, allowing the council to convey democratic know-how and evaluate progress.

     Though not formally enshrined in a Council of Europe document, the school-of-democracy concept can now be considered the council’s official doctrine, supported by the Committee of Ministers, the Parliamentary Assembly, and the secretary general. This doctrine is implicit in the council’s decisions to extend membership to sixteen former communist states in Central and Eastern Europe between 1990 and 1996, as well as in its programs of assistance and cooperation. The council has obtained commitments from each of these new member states to undertake the reforms necessary to conform with democratic standards. It has also secured the signature, and the promise of ratification within constitutionally reasonable time limits, of the ECHR, as well as other key treaties such as the Convention for the Prevention of Torture and Inhuman and Degrading Treatment, the European Social Charter, and the Framework Convention on the Protection of National Minorities. The council insists on accession to these conventions as conditions of membership.

     A key question, of course, is whether the commitments are implemented—a matter addressed in this study’s section on monitoring and in the case studies.

Contents | Key Points | Foreword | Preface | One | Two | Three | Four | Five | Appendixes: 1 2 3 | Notes | Author

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