Irish Centre for Human Rights Blog

Note: This post is written by Andrew Forde. Andrew is a final year, part-time doctoral researcher at the Irish Centre for Human Rights focussed on the application of the European Convention on Human Rights in European territorial ‘grey zones’. An LLM in International Human Rights Law graduate, Andrew is a senior official in the Irish civil service with extensive international human rights experience including within the Council of Europe and the Organisation for Security and Cooperation in Europe (OSCE). He is a former board member of the Irish Council for Civil Liberties (ICCL).

On 22 April 2020, the Committee of Ministers of the Council of Europe (CoE) invited Kazakhstan and Tunisia to accede to the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention). The decision was a landmark moment for one of the CoE’s newest and most promising human rights treaties as these will be the first non-member States to accede to it.

Whilst undeniably a positive development from a human rights perspective, it might seem somewhat curious to an outside observer as a matter of politics or international law given that neither are member States of the Council of Europe, indeed neither are even European. Or are they? As we are concerned with human rights protection does it even matter, or should it? These are legitimate questions which fundamentally relate to the limits of Europe both as a matter of law and of politics.

The Istanbul Convention was opened for signature in 2011, aspiring to create a legal framework at pan-European level to protect women from violence, including domestic violence. It established a new monitoring mechanism (known as “GREVIO“) in order to ensure effective implementation of its provisions by State Parties. As one of more than 220 Council of Europe treaties, the Istanbul Convention is highly progressive not least for its character as a regional human rights instrument open for ratification and accession by non-member States. It greatly reinforces the universalist underpinnings of the European human rights system by augmenting other international standards such as the Inter-American Convention on the prevention, punishment and eradication of violence against women and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. It crystallised the leading position of European human rights standards regarding violence against women on the world stage.

Accession to the Istanbul Convention is therefore less a measure of “Europeanness”, than it is an expression of a state’s commitment to addressing an issue of fundamental rights. The Convention is universal and, in a sense, border-blind. Being European has no bearing on a state’s rights and responsibilities under the Convention, and conversely being party to the Istanbul Convention makes a state no more or no less European.

Contrast this with the Statute of the Council of Europe, which under Article 4 explicitly requires a potential candidate country to be “European.” However, the Statute does not define “European” nor does it provide clarity as to what the potential territorial scope of the organisation might be. It rather assumes a common understanding of “Europe”, which is hardly surprising given the Statute was drafted in the post-World War II period. It can be said that the Council of Europe’s potential territorial limits are therefore presumed rather than being explicitly defined.

This ambiguity creates space – even constructive ambiguity – for political dialectics on whether one state or another should or should not be considered for admission as a member. It even creates space to determine whether a polity is even a state at all. Ultimately decisions on statehood and on membership, as inextricably linked processes, are made by governments of member States. The Council of Europe itself has no legal capacity to recognise or not to recognise a state. Instead, this happens by strict operation of law based on a decision on membership by the Committee of Ministers.

Issues linked to statehood and membership became more prominent within the CoE in the 1990s. In writing about the new wave of enlargement of the organisation after the accession of the Russian Federation, former Secretary General, Daniel Tarschys suggested that as a matter of European geography and twentieth century history, the decision to invite Russia to become a member “calls for some special explanations.” This statement hints at the significant political contention leading to the decision to invite the Russian Federation to accede to the CoE after the fall of the Iron Curtain. Ultimately, in the landmark 1993 Vienna Declaration, CoE member States confirmed their policy of openness to extend the European human rights system to “all the countries of Central and Eastern Europe that opt for democracy.” Given the many thousands of people who have benefited from the ECHR system in those countries over the past 30 years, there is little doubt this was the correct decision. Still no reference to how far east the CoE might stretch, mind you.

It was not until PACE Recommendation 1247 (1994) that we find any significant territorial delimitation in an official document, and in this case, it was through its deliberative institution – the Parliamentary Assembly of the CoE. It provided that membership was “in principle open only to states whose national territory lies wholly or partly in Europe.” The drafters noted that the boundaries of Europe had not yet been comprehensively defined under international law and therefore are difficult to determine, so suggested instead that the CoE be guided by the generally accepted geographical limits of Europe which correspond to the entire land territory of Europe from the Atlantic Ocean to the Ural Mountains, inclusive. This reference to the traditional physiographic boundary between Europe and Asia similarly appears in the CSCE (now OSCE) Treaty on Conventional Armed Forces in Europe.  Although bereft of linguistic, cultural, religious, or other possible measures of Europeanness, at least this delineation is not entirely arbitrary. Actually, there’s some logic to it, with the rationale traceable back to Eratosthenes’ map from the period 190 BC.

Based on what I call the “Ural Formula”, it could be argued that Kazakhstan has the potential to be considered for membership of the Council of Europe were it so inclined to pursue this as a foreign policy objective, whereas Tunisia almost certainly would not.

Kazakhstan has not expressed official interest to join the CoE, but it has taken several steps towards enhanced cooperation including by acceding to the European Cultural Convention and inviting cooperation programmes. The Cultural Convention has become the traditional entry point for non-member States to develop contact with the CoE and of the new member States acceding to the ECHR since 1989, all ratified the Cultural Convention prior to their accession to the CoE. Perhaps a sign of things to come, perhaps not.

The difficulty with the “Ural Formula” is that it is a rough guide which says nothing about the interest or capacity of states to join. Furthermore, it cannot possibly reconcile every conceivable jurisdictional controversy within the external limits of Europe. And there are many. From frozen conflicts, to de facto states, to secessionist movements, there are many real and present challenges within Europe which raise significant human rights concerns for the populations affected. Membership of the CoE is no panacea for these ills. However, the fact that millions of Europeans have no effective access to the European system for the protection of human rights is a significant cause for concern. In some cases, such as Kosovo, the European Court of Human Rights is off-limits, for others, such as Crimea, human rights monitoring mechanisms are faced with a dichotomy over which CoE member State exercises de jure control under international human rights law and which de facto, which means those mechanisms cannot operate freely or effectively. These are just some of the so-called “grey zones” with the CoE area which deserve much more detailed and meaningful consideration, in good faith.

When we consider the limits of Europe, we must be mindful of the object and purpose of the Council of Europe as being about maintaining and promoting the ideals and values of a democratic society – human rights, democracy and the rule of law. The CoE is at the forefront of international human rights standard-setting so it is right and proper that it should seek to inspire law, policy and practice in its ‘neighbourhood’ and more widely as the Istanbul Convention is doing.

It is not about imposing a value-system on others, rather about promoting standards which are in the public interest and being receptive to calls for assistance, as is the case with Kazakhstan and Tunisia. It is to be celebrated that the Istanbul Convention has adopted this progressive path to ensure that the rights enshrined are practical and effective, not theoretical and illusory.

Still, we must not neglect the many other European human rights ‘grey zones’ which are hidden in plain sight.