European Voice 10-16 November 2005

Should the European Union become a member of the Council of Europe?

There is no doubt that when it comes to most things political in Europe, nobody is more powerful and influential than the European Union. As the Secretary General of the Council of Europe and as a convinced European, I acknowledge this fact.

Some political leaders in Europe also believe that the economic power and the political influence of the European Union and its supranational character, are also convincing arguments to formally designate the European Union as the institution in Europe to play the leading role with the promotion of democracy and the protection of human rights throughout the continent. Here, I beg to differ.

It is true that compared to EU legislation, which has a much more direct legal effect, Council of Europe conventions may appear weak and outdated. They represent a classic instrument of intergovernmental co-operation and must be negotiated, agreed, signed and ratified before they have any impact on national legislation.

This being said, an intergovernmental approach also has some considerable advantages. One is the scope of application. Resorting to a legal instrument of the Council of Europe, rather than to an EU Regulation or Directive, doubles the territory and the population to which it potentially applies. Furthermore, a number of Council of Europe conventions – such as the ones on cybercrime, on the prevention of terrorism and on action against trafficking in human beings - are open to non-member states and may in this way contribute to global solutions to global challenges.

It is equally important to remember that when the “twenty-five” agree to legislate, the EU law is meant to replace national, not international, rules. When in conflict – and this is of particular relevance in the light of recent initiatives on the fight against terrorism – Council of Europe conventions take precedence – simply because EU member states are legally bound to respect their Council of Europe obligations regardless of whether they are taking their decisions at national level or vote in the EU Council of Ministers. If I am strongly in favour of the EU adhering to some of our key legal instruments, starting with the European Convention on Human Rights and Fundamental Freedoms, this is primarily to ensure that the protection offered by the European Convention on Human Rights applies to all potential violations of human rights in Europe, including those that may be committed by EU institutions themselves.

When it comes to extending the application of human rights and democracy standards beyond EU borders many will argue that the EU can effectively do so through its bilateral relations with non-EU member states. This may be true with regard to candidates for EU accession, and it is also true that the European Union has adopted the well-known Copenhagen criteria which are based and modelled on Council of Europe acquis. But imposing standards from outside may not always be the best way to proceed. The European Union is big, important and powerful, but it should be judicious in how it uses its economic and political weight.

In the Council of Europe, all forty-six member states are equal, and they have accepted membership obligations voluntarily. When problems occur, we can exert pressure, but this is pressure coming from peers. This makes for an important difference. The values of democracy, human rights and the rule of law can only work properly if people genuinely believe in them, accept them and not simply go through the motions as a concession to outside demands. In the majority of such cases, the EU should throw its weight behind the Council of Europe, rather than dangle its own carrot. I certainly hope that the EU will keep this in mind when it decides on the geographic mandate of its future Agency for Fundamental Rights.

This being said, I must emphasise that the relationship between the Council of Europe and the European Union is not one of rivalry and competition. Institutional turf-war is an irresponsible and shameful waste of European taxpayers’ money. But so is duplication of work. As Secretary General of the Council of Europe, I am determined to do what I can to eliminate such duplication. I am doing my best to insist that any particular job is done by those who can provide the best value for money. If it means closing down some of the Council of Europe activities because they can be carried out more efficiently by somebody else, then so be it. But I also expect others to act in the same way.

This was the logic behind the decision taken at the organisation’s Third Summit in Warsaw last May to ask Luxembourg Prime Minister Jean-Claude Juncker to prepare – in a personal capacity- a report on relations between the Council of Europe and the European Union.

The final argument is one of legitimacy and I am confident that it will not be ignored by Jean-Claude Juncker’s report. The European Union is not a federal state, but it would be the first to deny that it is an international organisation. This has its consequences. When it comes to democracy, human rights and the rule of law, there should be a clear separation between those who make laws for themselves and those who set standards for all. If we object to the United States of America ignoring this important distinction at global level, at the expense of the United Nations, we should not go along with the European Union’s attempts to do the same – albeit with the best of intentions – in Europe.

Like most analogies – and as you will no doubt have noticed – this one also contains a flaw. After all, and in spite of its claims to world leadership, the United States of America is a member of the United Nations, while the European Union is not yet a member of the Council of Europe. But perhaps this is just a matter of time.

Terry Davis is the Secretary General of the Council of Europe