Please find below the speaking notes of Mr Polakiewicz on which he based his intervention:

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Introduction

The Statute of the Council of Europe (CoE) names recommendations and conventions or agreements as instruments to achieve its objectives: greater unity between its members in the fields of human rights, democracy and the rule of law.

Although international treaties remain the principal instrument for the adoption of common European standards, there has been a shift of emphasis from treaty making to monitoring of compliance and assistance opening up ample fields of application for soft-law instruments. Most of these instruments remain however, in one way or another, linked to Council of Europe treaties.

In the time allotted to me, I shall only be able to deal with some aspects of the quite rich CoE practice. The first part of my presentation will focus on recommendations and other soft law instruments adopted by the Committee of Ministers (CM) which are the main source of soft law in the CoE. During the over seventy years of the Organisation’s existence the CM has adopted close to thousand recommendations. In the second part of my presentation I shall examine the status and legal effects of soft law instruments adopted by CoE treaty bodies.

Recommendations and other CM soft law instruments

While conventions and agreements are multilateral treaties, which derive their legal force from the consent of those member states that wish to be bound by them, recommendations (until 1979 called ‘resolutions’)^[1]  constitute legal instruments of the Organisation. Pursuant to Article 15.b of the Statute of the CoE, in appropriate cases, the conclusions of the CM may take the form of recommendations to the governments of member states.

As their name indicates, recommendations are not legally binding on member states. Governments are merely “invited”, “called upon”, or “recommended” to implement the principles and guidelines, which are usually contained in an appendix to the recommendation. Their language clearly differentiates the text of recommendations from treaty provisions, in particular by using “should” instead of the compelling “shall”/“must” and by the absence of provisions similar to the final clauses of international treaties. The precision of some of the principles may nevertheless be comparable to that of treaty provisions, which are often also limited to formulating objectives or rather broadly phrased principles, leaving states a wide measure of discretion in respect of their implementation.

According to Article 20.a.i. of the CoE Statute, the adoption of recommendations by the CM require the unanimous vote of the representatives casting a vote, provided they are a majority of the representatives entitled to sit on the Committee. In November 1994, however, the CM decided to make its voting procedure more flexible. The Deputies reached a ‘gentleman’s agreement’ not to apply the unanimity rule any longer to recommendations.[2] According to this agreement, no delegation shall request the application of the unanimity rule if the two-third majority foreseen in article 20.d of the Statute has been attained.[3] The practice of the CM has since been coherent in making use of this exception to the unanimity rule.

Despite this loosening of the unanimity requirement, the procedure for their adoption grants CM recommendations a particular authority. They are regarded as an expression of the collective will of the community of European states represented in the CoE. Although not legally binding, they constitute a body of common European law^[4] and an important source of reference for national legislators and administrative authorities. There is at least one instance, where a recommendation has subsequently been made legally binding through the inclusion in an international treaty. In article 129 of the Convention implementing the Schengen Agreement, the parties commit themselves, with regard to the transmission of personal data, to implement a level of protection which complies with the principles of Recommendation No R(87) 15 regulating the use of personal data in the police sector.

The authority of recommendations is confirmed by the practice of member states to enter ‘reservations’ in cases where they cannot or do not intend to fully apply a recommendation. Article 10.2.c of the RoP for the Meetings of the Ministers’ Deputies allows any representative to record ‘reservations’ with regard to the implementation of the recommendation by his or her government. Although, from a strictly legal point of view, this term has no place in the acceptance of a non-binding instrument, its use shows that member states treat recommendations as normative instruments. As in the case of international treaties, member states use this faculty in particular where the principles of a recommendation are regarded as incompatible with state policy or where their implementation would require substantial changes in domestic law, which they, at least for the time being, do not deem appropriate or necessary. Member states also occasionally withdraw their reservations made with respect to certain recommendations. For instance, in 1998, Ireland withdrew some of its reservations to the above-mentioned Recommendation No R(87) 15. The withdrawal was prompted by new data protection and freedom of information legislation and Ireland’s accession to the Europol Convention and its Protocols.

It has also happened that states make ‘interpretative declarations’ with regard to certain provisions of a recommendation, e.g. with respect to Recommendation Rec(2002)4 on the legal status of persons admitted for family reunification. Though such declarations are not foreseen in the RoP of the CM or the Ministers’ Deputies, their use has been accepted. The practice of making ‘reservations’ or ‘declarations’ in respect of recommendations has however remained limited. A more widespread use could indeed undermine the authority and harmonising force of the instrument. Ideally the states concerned should voice their objections during the drafting phase so that they can duly be taken into account.

Just like international treaties, recommendations may be subject to reporting procedures. The Statute explicitly provides that the CM may ask member governments “to inform it of the action taken by them” with regard to recommendations (Article 15.b). In 1987, the Committee of Ministers adopted a message to all intergovernmental committees (steering committees and committees of experts), urging them to improve their monitoring of the implementation of recommendations and resolutions.[5] While this monitoring usually takes place during the ordinary committee meetings, special conferences were occasionally convened for particularly important recommendations. In view of alarming reports on the scale of child abuse and trafficking all over Europe, a special conference was convened in Strasbourg in 1998, as a follow-up to the 1996 World Congress against Commercial Sexual Exploitation of Children, in order to take stock of measures taken at national level to implement Recommendation No R (91) 11 concerning sexual exploitation, pornography and prostitution of, and trafficking in, children and young adults.

Several factors may explain why recommendations have gained in importance. In an enlarged CoE comprising almost all European states, it has become increasingly difficult to arrive at solutions which can muster enough support from member states to allow their inclusion in international treaties. Recommendations are flexible enough to allow for a certain degree of harmonisation of national practices. Being confined to stating principles and guidelines, they have the advantage of leaving governments relatively wide discretion in respect of their implementation. Due to their less formal and non-binding character, recommendations are generally easier to draw up than conventions. Once adopted, they take effect immediately with respect to all member states and are not dependent for their operation on any further act by these states. Recommendations may also be amended relatively easily by the passing of a further recommendation on the same subject complementing or modifying the provisions originally made. Recommendation Rec(2001)16 on the protection of children against sexual exploitation, for instance, superseded Recommendation No R (91) 11 concerning sexual exploitation, pornography and prostitution of, and trafficking in, children and young adults. The European Prison Rules which have also been adopted in the form of a recommendation have been revised several times, most recently in 2020. Recommendations thus allow for a more immediate response to new problems than international treaties, which are usually subject to potentially long and cumbersome internal ratification procedures.

In particular, when the relevant issues or the effective responses are not yet clearly identified, due to scientific uncertainty or other reasons, recommendations allow for the formulation of a common policy approach. This explains their frequent use in matters such as biomedicine, health, data protection and new technologies in general. Examples from the last decade include:

• CM/Rec(2020)6 on establishing harmonised measures for the protection of haematopoietic progenitor cell donors;
• CM/Rec(2020)5 on the quality and safety of tissues and cells for human application;
• CM/Rec(2020)4 on the quality and safety of organs for transplantation;
• CM/Rec(2020)1 on the human rights impacts of algorithmic systems;
• CM/Rec(2019)10 on developing and promoting digital citizenship education;
• CM/Rec(2018)10 on culture’s contribution to strengthening the internet as an emancipatory force;
• CM/Rec(2018)7 on Guidelines to respect, protect and fulfil the rights of the child in the digital environment;
• CM/Rec(2018)2 on the roles and responsibilities of internet intermediaries;
• CM/Rec(2017)7 on Big Data for culture, literacy and democracy;
• CM/Rec(2017)5 on standards for evoting;
• CM/Rec(2016)8 on the processing of personal healthrelated data for insurance purposes, including data resulting from genetic tests;
• CM/Rec(2016)6 on research on biological materials of human origin;
• CM/Rec(2016)5 on Internet freedom;
• CM/Rec(2016)2 on the Internet of citizens;
• CM/Rec(2014)6 on a Guide to human rights for Internet users;
• CM/Rec(2014)4 on electronic monitoring;
• CM/Rec(2012)3 on the protection of human rights with regard to search engines;
• CM/Rec(2011)7 on a new notion of media;
• CM/Rec(2011)8 on the protection and promotion of the universality, integrity and openness of the Internet;
• CM/Rec(2010)13 on the protection of individuals with regard to automatic processing of personal data in the context of profiling.

As far as the legal field is concerned, recommendations are often resorted to because the diversity of legal systems render true unification through international treaties often difficult. In many areas, differences in the underlying concepts are an obstacle to the introduction of identical provisions through conventions. What can be achieved through recommendations is the adoption of common guidelines and standards in a particular matter which are then implemented by the legislatures of the member states within the confines of their individual legal systems.[6]

Recommendations may also have a ‘piloting role’, helping to shape consensus and preparing the ground for subsequent treaty action. Examples are the Convention on Biomedicine and Human Rights (ETS 164, 1997) and the Convention on Cybercrime (ETS 185, 2001), which were both preceded by CM recommendations.[7] We are witnessing a similar development right now regarding artificial intelligence.

CM recommendations exemplify the programmatic, educative and evolutionary function of soft law, which is often identified as one among the benefits of this type of recording consensus.[8] The existence of a relatively recent recommendation on a given subject may even be used as an argument not to embark immediately on the drafting of a new convention, but to leave time for a serious assessment of the recommendation’s implementation by the member states.[9] This happened with respect to access to official documents where eventually the treaty option prevailed.[10]  The CoE Convention on Access to Official Documents (CETS 205, 2009) entered into force last year.

Another example, CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity represents the worldwide first instrument dealing specifically with these persistent and difficult forms of discrimination. It sets out the principles deriving from existing European and international instruments, with particular emphasis on the ECHR and the case law of the Strasbourg Court. The recommendation identifies specific measures to be adopted and effectively endorsed by member states to combat discrimination, ensure respect for LGBT persons, promote tolerance towards them and ensure that victims have access to legal remedies. The implementation of the recommendation was followed-up by the CDDH in the form of a report based on the member states’ replies to a respective questionnaire in 2013. While there are still no initiatives in sight for the conclusion of a legally binding instrument, the recommendation can be seen as the first step towards express recognition of the rights of LGBTI persons in international law.

Apart from recommendations, there are also other formally non-binding instruments such as declarations, action plans or guidelines. Though not foreseen in the Statute, declarations have occasionally been adopted, in particular at ministerial sessions of the CM and summits of heads of state and government of the member states of the CoE. Declarations are political statements taking stock of existing problems while the purpose of recommendations is to recommend the implementation of certain policy principles to member states.

Guidelines have initially been conceived as an instrument assembling in a single document existing rules and principles on a given subject. The first example was the ‘Guidelines on human rights and the fight against terrorism’, adopted on 11 July 2002[11] as part of the comprehensive action by the CoE in the fight against terrorism. The guidelines highlight the limits of state action against terrorism, reiterate the need to avoid arbitrariness and reaffirm the absolute prohibition of torture already contained in article 3 of the ECHR. They also formulate rules and principles with respect to the collecting and processing of personal data, the protection of privacy, arrest, police custody and pre-trial detention, legal proceedings, extradition, assistance and compensation of victims. These rules and principles are primarily drawn from the applicable provisions of the ECHR[12] and the case law of the Strasbourg Court. Other sources, such as the UN Covenant on Civil and Political Rights, the Convention relating to the Status of Refugees of 28 July 1951 and observations of the UN Human Rights Committee have also been taken into account.

Although articulated in a non-binding form according to traditional modes of law making, such guidelines are based on internationally binding law, thus constituting evidence of the existence of hard obligations. Their language, which is neither vague nor imprecise, but rather clear and prescriptive. The use of “shall”, “must”, “may not” instead of terms traditionally used in recommendations such as “should” bears witness of the intention to formulate mandatory rules for law-enforcement authorities.[13] The main advantage of the guidelines is to collect and codify the applicable rules and principles, which are scattered over numerous instruments and pronouncements of the Strasbourg Court, in a single set of rules. As a further development, the CM adopted, in 2005, ‘Guidelines on the Protection of Victims of Terrorist Acts’ and revised them in 2017.

In recent years there has been a trend towards abandoning the rather clear distinctions between the various instruments and a proliferation of guidelines. The ‘Guidelines of the CM on child-friendly justice’ (adopted on 17 November 2010), for instance, while building on existing principles, also develop the existing principles further as well as “encourage” rather detailed implementation measures to be taken by the member states, thus resembling more closely a recommendation. The newly adopted ‘Guidelines on Facial Recognition’[14] prepared by the Consultative Committee of the CoE Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS 108, 1981) represent another example of a mix of existing standards with policy recommendations.

Speaking as the Organisation’s Legal Adviser, I would like to emphasise the importance of consistency in drafting. The various existing soft law instruments each have a certain purpose and scope. Which form is eventually chosen for a particular instrument should depend on its content and not on the preferences of the drafting committee.

Norms developed by treaty bodies

Under the standard clauses of CoE treaties, both conventional committees and multilateral consultations are usually given the task of examining the “application” of the treaty or the “advisability of revising or extending any of its provisions.” In this context, they adopt recommendations, resolutions or opinions regarding the interpretation or application of the treaty under which they have been established.

Treaty bodies set up under human rights instruments occupy a special place in the CoE. Intergovernmental activities have increasingly focused on the “maintenance and further realisation of human rights and fundamental freedoms.”[15] Treaty bodies which are usually composed of independent experts have the tendency to adopt a dynamic approach, which may sometimes go beyond the initial expectations of governments that have created such bodies in the first place. While all of these bodies interpret the respective international treaties as part of their monitoring functions, thus establishing a certain ‘case-law’ (e.g. the European Committee of Social Rights), some are also formally adopting documents containing general standards. Examples are the ‘CPT standards’ which cover matters ranging from police custody to impunity or the ‘thematic commentaries’ adopted by the Advisory Committee on the Framework Convention for the Protection of National Minorities on education, participation or language rights.

As far as the legal effects of treaty bodies’ interpretations and conclusions are concerned, it is obvious that they cannot have the same degree of compulsiveness as the original convention. This does not mean, however, that they would be devoid of any legal effect. Both regional human rights courts, including in particular the European Court of Human Rights, and domestic courts have on multiple occasions taken into account the pronouncements of expert treaty bodies when interpreting human rights conventions.^[16] In the same vein, the International Court of Justice held in its 2010 Ahmadou Sadio Diallo judgment, that “it should ascribe great weight to the interpretation adopted by [the International Covenant on Civil and Political Rights’] independent [treaty] body that was established specifically to supervise the application of that treaty.”^[17]

As the International Law Commission’s (ILC) work on subsequent agreements and subsequent practice confirms,[18] recommendations or resolutions adopted by expert treaty bodies[19] may deploy legal effects in  accordance with the rules of the 1969 Vienna Convention on the Law of Treaties (‘VCLT’), namely as:

• “subsequent agreements between the parties regarding the interpretation of the treaty or the application of its provisions” (article 31 (3) (a) VCLT); or as
• “subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” (article 31 (3) (b) VCLT) or “other subsequent practice” (article 32 VCLT). With regard to their legal value, it should be noted that subsequent agreements and practice under Art. 31 (3) VCLT must be taken into account as part of the general rule of interpretation, whereas subsequent practice under Art. 32 VCLT is a supplementary means of interpretation.

In its draft conclusions,  the ILC states that pronouncements by expert treaty bodies “may give rise to, or refer to, a subsequent agreement or subsequent practice by parties under article 31, paragraph 3 [of the Vienna Convention on the Law of Treaties].”[20] The terms “may give rise to, or refer to” were carefully chosen and reflect the fact that the pronouncements of expert treaty bodies do not directly stem from the parties. Thus, such pronouncements can only result in or reflect subsequent agreements or practice, but do not themselves qualify as subsequent agreements or practice.^[21] In contrast, decisions adopted within the framework of a Conference of States Parties “may embody, explicitly or implicitly, a subsequent agreement.”[22] In addition, such decisions may “give rise to subsequent practice under article 31, paragraph 3 (b).”

The conclusions, recommendations or resolutions of CoE treaty bodies will only exceptionally embody or reflect ‘agreements on interpretation’ or ‘subsequent practice which establishes the agreement of the parties’. In the CoE context, it must however be taken into account that many of the follow-up mechanisms foresee a body composed of representatives of the parties and not of independent experts, as is usually the case in UN human rights treaty bodies. It may thus be argued that such treaty bodies are not the typical ‘expert treaty body’ which the ILC had in mind when formulating its conclusions but may have the potential to act like a conference of state parties. As underlined by the ILC, whether the requirements for subsequent agreements or practice under Article 31 (3) of the VCLT are met does not depend on “the form and the procedure by which the decision was adopted.” Instead, the decisive criterion is whether and to what extent it “expresses agreement in substance between the parties regarding the interpretation of a treaty.”^[23]

The following two examples may illustrate the idea that conclusions by CoE treaty bodies may exceptionally qualify as ‘subsequent agreements and/or practice’ regarding the interpretation of the treaty under which they were established. In 2001, the Anti-Doping Convention’s (ETS 135, 1989) monitoring group decided that the term “relevant international sports organisations” used in the convention should henceforth include the World Anti-Doping Agency (WADA).^[24] Finally, within the Cybercrime Convention Committee (T-CY), the state parties “consult periodically with a view to facilitating the effective use and implementation of the Convention.” Starting in 2001 with the decision that the term “computer system” as defined in Article 1 (a) of the convention shall henceforth be interpreted to include cell phones,^[25] the T-CY has by now developed a consistent practice to adopt ‘guidance notes’ which, in the words of this committee, are “aimed at facilitating the effective use and implementation of the Budapest Convention on Cybercrime” and “represent the common understanding of the Parties to this treaty regarding the use of the Convention.”[26]

Apart from such particular cases, decisions or recommendations by CoE treaty bodies calling on parties to adopt a particular policy may more generally become relevant for the purposes of treaty interpretation, in particular if they are effectively implemented.^[27] The ICJ held that recommendations of a treaty body, in particular when adopted by consensus or by a unanimous vote, may be relevant for the interpretation of the treaty in question.^[28]

Conclusions

In recent decades, there has been a shift from treaty making to monitoring of compliance and assistance in the CoE. Soft law instruments have gained in importance. Being adopted faster, they avoid cumbersome procedures of domestic approval and subsequent amendments. In many cases, the creation of soft law instruments remains closely associated with treaties, thus exemplifying their complementary character. Many CM recommendations are in one way or another related to existing treaties, in particular the ECHR, or precursors of new legally binding agreements, testing the ground and helping to shape consensus among member states.

Standards generated by non-judicial human rights mechanisms have become increasingly important. Their recommendations and interpretations set standards of expected compliance with treaty provisions or contribute to the elaboration of more precise indicators for such compliance. Even without an explicit treaty mandate to that effect, almost as a by-product to its monitoring activity, the CPT has created detailed custodial standards, which have helped improving the situation of detainees in many European countries. The European Committee of Social Rights has translated many of the rather general and sometimes programmatic rules and principles of the European Social Charters into concrete standards for social and labour legislation, making it much easier to assess compliance.

The effectiveness of soft law standards depends not only on the authority and collective wisdom of the women and men who draft them, but also on the international environment, which may be more or less receptive to the new standards. Certain standards contained in ‘soft law’ instruments may eventually impose themselves as ‘authoritative’, provided that member states are seen to comply. As a former German legal adviser, Hartmut Hillgenberg, observed, “the difference between a treaty and the binding ‘political’ effect of a non-treaty agreement is not as great to a politician as is often thought.”[29]