Council of Europe
COUNCIL OF EUROPE.BIBLIOGRAPHY
The Council of Europe, established by the London Treaty of 1949, was the first of the supranational European institutions. Starting as a group of ten Western European states, it has constantly expanded in accordance with the democratization process in European countries and in 2005 comprised forty-five member states, covering all of Europe: the twenty-five members of the European Union; some other Western European states, such as Switzerland, Iceland, and Norway; and Turkey and the states that have emerged from the breakdown of the former Yugoslavia and the former Soviet Union.
Despite its ambitious objectives, with cooperation extending potentially to every sphere other than defense, the Council of Europe is weak in its institutional procedures. With the exception of the European Court of Human Rights, which is its most innovative body, the council contains only standard intergovernmental institutions. These comprise a Committee of Ministers, which assembles foreign affairs ministers twice a year and can adopt recommendations without binding force; a parliamentary assembly; and a committee of local and regional authorities, comprising elected representatives of the member states with consultative powers only. Unlike the European Union, the Council of Europe does not have a supranational executive and does not adopt legally binding standards. Accordingly, its field of operations is limited to exchange of experiences, discussion concerning democracy, and technical assistance in countries undergoing a transition to democracy. The council is an international body that operates only at a level of influence in domains such as the development of the state of law and democracy, combating racism, and the protection of minorities. Nevertheless, some of the conventions that it has adopted—particularly those relating to the protection of regional minorities and languages—have given rise to bitter disputes in countries that are experiencing ethnic tensions or that cherish a tradition of republican integration.
The only sphere in which the Council of Europe's activities have demonstrably expanded is the protection of human rights. The European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted in 1950, did not add any rights to those already safeguarded within the internal systems of the member nations, but it did specifically establish a supranational mechanism for safeguarding those rights. The European Court of Human Rights, established in 1959 and based in Strasbourg, is the cornerstone of this mechanism, which has gradually led to the formation of a true European rule of law. The process was hybrid at the outset: the council's member states were not obliged to ratify the convention and even if they did ratify it they could still withhold from individuals living on their soil the right to address their petitions directly to the European Court. Moreover, court pleadings were subject to political screening before being conveyed to the court. A Commission of Human Rights, made up of independent members but elected by the Committee of Ministers, decided on the admissibility of the petitions and sought to reach an amicable settlement with the state concerned before referring it to the court, which meant that only 2 percent to 3 percent of petitions were actually examined by the judges.
Since 1998 the procedure has been simplified, and it resembles a federal judicial review. Member states are now obliged to grant individuals living on their soil—whether they are nationals or not—the right to address their petitions directly to the European Court once they have exhausted the avenues of internal appeal. The court examines these petitions and gives definitive and binding judgments that are nevertheless devoid of sanction apart from possibility that the condemned state could be expelled from the Council of Europe, which is an entirely hypothetical scenario. The European Court in Strasbourg has as many judges as member states—in 2005, forty-five—who are elected for six-year terms by the parliamentary assembly, at the recommendation of the Committee of Ministers. Although these judges enjoy relatively weak guarantees of independence compared with the members of other supreme courts (a short, renewable term and the correlation between the number of states and judges may have given rise to fears that the judges would not dare to oppose the principal states), the European Court has been innovative in its case law. Basing itself on the theory that its task is not only to protect but also to develop and promote the European heritage of fundamental rights, the court seeks to advance, through its judgments, the traditional rights of the convention in accordance with the development of custom and practice. With the support of human rights organizations that encourage private parties to address petitions to it, the court seeks to extend the fundamental rights to states in which the rule of law is least well established by regularly condemning torture, discrimination, and judicial guarantees that it considers inadequate. More generally, it aims to carry out pioneering work by extending the scope of Europe's traditional rights in domains such as sexual freedom, political pluralism, and labor organizing.
Relations between the Council of Europe and the European Union are almost nonexistent, although the twenty-five members of the union also belong to the council. Although the European Parliament—a European Union institution elected by direct vote—shares its benches in Strasbourg with the parliamentary assembly of the Council of Europe, which is made up of national authorities, that is roughly where the contact ceases. The two courts—the Luxembourg court, which is a European Union institution, and the Strasbourg court—follow each other's case law closely and seek to avoid inconsistencies, but they are not associated by any formal agreement. However, the constitutional treaty of the European Union, signed in 2004, includes a provision that the European Union should itself be a member of the Council of Europe, making it possible for the acts of European Union institutions to be examined by the court in Strasbourg, which would make it the supreme European court in the domain of fundamental rights.
Gearty, C. "The European Court of Human Rights and the Protection of Civil Liberties: An Overview." Cambridge Law Journal 52 (1993): 89–127.
Lawson, Rick, and Matthijs de Bloijs. The Dynamics of the Protection of Human Rights in Europe. Boston, 1994.