The Quest for Democratic Security
The Role of the Council of Europe and U.S. Foreign Policy
Key Points
The wave of democratization that swept Central and Eastern Europe after 1989 reshaped Europe’s political geography and also forced a reconfiguration of Europe’s institutional landscape. These changes provoked difficult and sometimes divisive questions: How will the new states of Central and Eastern Europe relate to the existing Western European structures? How can the instruments of Western European cooperation adapt to encourage stability in the region? In what ways can Western European states and structures promote peace in this historically volatile area?
The Council of Europe’s principal raison d’être is to promote and safeguard democratic values, human rights, and fundamental freedoms. At its 1993 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.” However, the question remains whether the Council of Europe would continue to be a community of values or if this community would be progressively diluted as a result of too-rapid enlargement.
For some candidate countries, particularly those whose leaders feared renewed Russian expansionism, council membership was also seen as a stepping stone to NATO and European Union (EU) membership. The EU and NATO are also associations of democratic states, and adhering to democratic standards in three or more European or transatlantic organizations can only reinforce democratic security all over Europe. This effort to reinforce security through the proliferation and strengthening of democratic institutions, the growth of democratic civil societies, and the development of cooperation between states define the “quest for democratic security,” foremost on the European political agenda following the events of 1989.
The council has worked to integrate the continent’s adherence to democratic norms through various multilateral treaties, such as the European Convention on Human Rights (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 of the council 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. The Framework Convention on the Protection of National Minorities can be seen as a further extension of the ECHR and the council’s statute.
The expansion of the council 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: They 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. In preparing its opinions on membership, the council’s Parliamentary Assembly will consider the internal legal and political order of the candidate state in relation to council’s standards. The first step is to appoint a group of eminent lawyers to undertake a legal appraisal. The opinion first evaluates the country’s internal situation, including steps taken to adapt to Council of Europe standards: for example, free and fair elections, constitutional and legal reform, and accession to key conventions.
The problem of evaluating members’ democratic practices became significant, qualitatively and quantitatively, with the wave of new accessions beginning in 1990. The council introduced monitoring in 1993, consisting of obligations (generally applicable to all member states) and commitments (that is, specific pledges made at the time of accession to undertake certain action on democratic reform or to adhere to Council of Europe legal instruments, such as the Convention on the Prevention of Torture or the Framework Convention for the Protection of National Minorities). The Parliamentary Assembly’s monitoring process also takes into account expectations it may have expressed in its respective opinion on a membership application.
During recent years, the number of additional commitments by applicant states recorded in assembly opinions has become increasingly larger, particularly since 1995. Thus, the opinion on Latvia contains thirteen such commitments, that on Moldova eighteen, that on Albania seventeen, that on Ukraine twenty-three, that on Macedonia twenty, that on Russia twenty-five, and that on Croatia twenty-nine. This striking increase in the number of commitments entered into by new member states does not necessarily imply that the situation in one country is less satisfactory than in another. Rather, it reflects a tendency on the part of the assembly to become more “perfectionist.”
Estonia joined the Council of Europe on May 14, 1993. In its resolution closing the monitoring procedure, the assembly nonetheless mentioned some serious and on going problems with three aspects of Estonia’s political and legal system: the detention of refugees and asylum-seekers; the treatment of members of the “nonhistoric” Russian-speaking minority; and the “deplorable” conditions of prisons and detention centers.
Romania was admitted to the Council of Europe on October 7, 1993 on the understanding that it would complete certain reforms within given time limits; monitoring of these commitments began shortly thereafter. Most of these issues were mentioned in the assembly’s opinion on Romanian accession in 1993; some are commitments that remain unfulfilled, and others are expectations expressed by the assembly. Although the Romanian government has not completed these reforms, progress has been made. For example, in keeping with the council’s recommendations, a bill to reform the judicial system was sent to the Romanian parliament in late spring 1997 and was eventually adopted.
The Russian Federation acceded to the Council of Europe on February 28, 1996. The approximately twenty-five specific commitments and a number of additional expectations of the Assembly centered on: 1) the signature or ratification of some key Council of Europe conventions—for example, Protocol No. 6 to the ECHR on the abolition of the death penalty, the Charters for Regional or Minority Languages, and conventions on extradition and on mutual assistance in criminal matters; 2) reform of Russian civil and criminal codes, the judicial and prison systems, the secret services, and the armed forces; and 3) Russia’s compliance with specific areas of international law, particularly with regard to Chechnya and cooperation with international hu mani tarian organizations, and international treaties of which it is a signatory, such as the Treaty on Conventional Armed Forces in Europe.
On the intergovernmental side, there are four general programs of democratic assistance that aim at assisting candidate and new member states to fulfill the statutory requirements of membership, as well as specific commitments undertaken when joining the organization, and that incorporate the council’s various programs on human rights, minority rights, equality, legal cooperation, social affairs, youth, the media, cultural heritage, and education.
The council conducts a variety of other initiatives to ensure new members’ commitment to democratic practices and procedures, including expert missions to review host-country legislation or to make proposals regarding particular legal or constitutional problems such as citizenship for ethnic or linguistic minorities, election systems, gender equality in the law, broadcasting, protection of intellectual property rights, social security, and health care; study visits for officials, lawyers, magistrates, prosecutors, police, prison staff, journalists, civic leaders, and technical advisers from Eastern and Central Europe to gain first-hand experience in the conduct of their respective professions in democratic societies or to participate in relevant conferences; and training programs for civil servants, the media, prison officials, judges, lawyers, leaders of political parties, nongovernmental organization (NGO) officials, and others who work with various aspects of the rule of law, pluralist democracy, and human rights. In addition, the council established the European Commission for Democracy through Law to provide expert advice and opinions on constitutional and legal matters to new and prospective council members, as well as information and documentation centers in Eastern and Central Europe to enhance knowledge of and public access to the council’s activities.
While the United States is directly engaged in multilateral diplomatic relations with Europeans in the Organization for Economic Cooperation and Development (OECD), NATO, and the Organization for Security and Cooperation in Europe (OSCE), it is also dealing with them in two specifically European international in stitutions of which it is not a member: the geographically wider Council of Europe and the more close-knit European Union. However, the Council of Europe offers a yet insufficiently exploited potential for cooperation toward the common goal of demo cratic security. “The New Transatlantic Agenda,” adopted at the December 1995 U.S.–EU Summit in Madrid, refers to a “new European security architecture in which the North Atlantic Treaty Organization, the European Union, the Western Euro pean Union, the Organization for Security and Cooperation in Europe and the Council of Europe have complementary and mutually reinforcing roles to play.”
The U.S. and the Council of Europe should undertake an effort to coordinate their democracy-building programs and, where appropriate, enter into joint ventures along the lines of those agreed on between the Council of Europe and the European Union. To this end, the United States’ observer status in the Council of Europe ought to be fully exploited in conformity with the original intent of the U.S. application. The United States could explore the usefulness of adhering to more “open” Council of Europe conventions, either because they are intrinsically of interest to the United States or because such action would extend the “common legal space” across the Atlantic. Specifically, the United States and the council should explore the feasibility of a joint European–North American research project on common elements in their respective constitutional and legal orders and how they could be further extended, with a view to creating a common transatlantic legal space. The U.S. Congress should be regularly represented in the council, not only through diplomatic ob servers but also by parliamentarians.
