International Democracy Watch

• Short history
• Composition
• Mandate
• The Parliamentary Assembly and human rights protection
• The Parliamentary Assembly, democratic representation and democratic control
• The Assembly's democratic influence in the Council of Europe

Short history

The Dutch Advisory Council on Foreign Relations describes the CE’s Assembly as the “oldest international pluralist assembly established on the basis of an international treaty”.  It was initially named the Consultative Assembly, but has since 1974 used the name Parliamentary Assembly.  The CM officially recognised the name change in February 1994, but the Statute has not been amended accordingly.   Notwithstanding the absence of the necessary statutory amendment, this change in name is important in that it illustrates the Assembly’s increasing assertiveness in respect to its democratic and human rights mandate.  The change in name in 1974 also coincides with launch of the Assembly’s, and thus the CE’s, most prominent human rights campaign in 1973, which led to the gradual emergence of Europe as the world’s first death penalty free region.

Composition

Under Article 25(a), the Assembly is composed of indirectly elected parliamentarians from its forty-seven member states.  Indirectly, in that, unlike the EU’s European Parliament, Assembly members are not directly elected. Delegations are “elected by its [national] parliament from among members thereof, or appointed from among the members of that [national] parliament, in such a manner as it shall decide […]”. 

The number of seats allocated to each member state’s delegation is outlined under Article 26.  Seats and votes are apportioned to each member state by population.   The total number of national representatives is 636: 318 national representatives, and their 318 substitutes.  The allocated seats, and thus votes, for each full CE member state, are shown in Table 2.1 below.

Under Statutory Resolution 93(26), the status of Observer member state was granted to the United States on 10 January 1996, Canada on 29 May 1996, Japan on 20 November 1996.  Mexico has been an Observer member state since 1 December 1999.  Of these, delegations from Canada and Mexico have seats in the Assembly, but do not have voting rights (Rule 60.5 of the Assembly Rules of Procedure).  Their representation within the Assembly complements that of Israel, which has enjoyed Observer membership of the Assembly since 2 December 1957.  Additionally, although the Holy See is not an Observer member state within the Assembly, it has enjoyed a special guest status since 7 March 1970.  It has a permanent representative to the CE, and other observers who, since 1974, have observed the organisation’s various expert committees, such as the Committee of Experts on Human Rights.

Mandate

The importance attributed to the CE’s democratic rule and European public opinion, is illustrated by the Assembly Representatives’ dual mandate.  As the CE’s chamber of representation, the Assembly members are, - at the time of writing -, first and foremost, members of parliament representing their own constituencies in their individual countries of origin.  As national parliamentary delegates to the CE’s Assembly, they have an individual, and not a national role.  Their alphabetical seating within the Assembly chamber ensures that the representatives act in an individual capacity, representing European public opinion and steering the CE’s member states towards a habit of compliance with the organisation’s underlying values.  In turn, as with the European Union’s (EU) European Parliament, the Assembly is organised into transnational party groups, rather than national party delegations.  There are five political groups, which represent the political affinities of individual representatives: Alliance of Liberal and Democrats for Europe (ALDE), European Democrat Group (EDG), Group of the European People’s Party (EPP/CD), Socialist Group (SOC), and Group of the United European Left (UEL). 

The Assembly holds four annual plenary sessions, and its remit is outlined under Article 22.  This states, “the Consultative Assembly is the deliberative organ of the CE […]” (emphasis added).  It is to “debate matters within its competence under this Statute”.  It can deliver three types of conclusions, which are voted for and presented in the following manner.  A two-thirds majority vote is necessary for the Assembly’s Recommendations.  These act, for the most part, as policy proposals to the CM, for action by governments, at the national level. Resolutions require a simple majority vote, and express the Assembly’s decisions on questions which it alone is empowered to put into effect or expressions of views for which it alone is responsible. The Assembly’s Resolutions or Recommendations are initiated by a report into a specific issue area, as conducted by the appropriate Assembly Committee.  The final type of conclusions, are the Assembly’s Opinions, which also require a simple majority vote. Opinions express the Assembly’s viewpoint on issues put to it by the CM, such as those relating to the accession of a new member state, or the drafting of new legislation.  However, despite the importance of its role in ensuring the continent’s democratic security, and regional human rights protection, the Assembly’s powers are limited to those of a deliberative body.

The Parliamentary Assembly and human rights protection

The Assembly’s Committee on Legal Affairs and Human Rights is responsible for its human rights mandate.  The Committee is composed of eighty-four parliamentarians and their substitutes.  It has four sub-Committees, each responsible for a particular policy area of the Assembly’s core human rights remit.  These policy areas are human rights, crime related problems and terrorism, minority rights, and the election of judges to the Strasbourg Court.  Each committee has a system of rapporteurs and fact-finding missions, and its conclusions are then presented in a final report.  The conclusions from these reports often form the basis of the Assembly’s proceedings – recommendations, resolutions and opinions – to the CM, other CE institutions, or member states. 

The Parliamentary Assembly, democratic representation and democratic control

The Assembly assures for democratic representation within the CE.  Nonetheless, democratic representation and control of the organisation remains limited.  The initial opposition to the CE and its authority was demonstrated by the member states’ disdain for the Assembly.  The organisation was dismissed as a “debating society for European parliamentarians, with an intergovernmental organisation incongruently attached to it”.  The opposing member states’ hostility was associated with its role as a supplementary, and extra-national institution specifically created to express, represent and formulate European public opinion. 

The Assembly placed great importance on its role as a model of political organisation based on the principles of democratic accountability, transparency, and democratic representation.  However, the importance of the CE’s political authority was limited by a fear within the member states that the Assembly would become the mouthpiece of a concerted European public opinion.  The following quotation from an address made at the Royal Institute of International Relations on 19 February 1952 illustrates national governments’ fear of the Assembly.  It is from an address by Mr Robert Boothby, a British parliamentary delegate for the Conservative Party to the CE’s Assembly from 1949 to 1958: 

“[…] we must reconcile ourselves to the fact that not only the British Foreign Office but even, in some degree the Quay d’Orsay, and all the rest, are naturally hostile to this alien organisation which has sprung up at Strasbourg and has started talking about things that pertain to them, and are better not discussed in public anyway – that matter too much to the peoples of the world to be discussed in front of the peoples of the world”.

This fear was unfounded.  The insufficient media coverage of the CE’s activities had contributed to the organisation’s failure to galvanise the necessary public support.  Nonetheless, despite the member states’ unwarranted fears, the CM served as the necessary intergovernmental and anti-federalist check to the otherwise integrationist Assembly. This tendency towards intergovernmentalism limited the CE’s decision-making powers to what the majority of the founding member states had initially intended.  The CE’s political powers were those of an organisation that aimed at “democratic consolidation” within, and not “democratic control” of, its member states.  By restricting the Assembly’s powers to those of a deliberative institution, member states hoped to forestall its development into a legislative body, with political authority akin to that of the present directly elected European Parliament.

The Assembly's democratic influence in the Council of Europe

The Assembly’s influence will be examined in respect to the policy formation and monitoring.  Examples of its influence will be drawn from a key CE policy, which is the abolition of the death penalty in Europe.   In respect to policy formation, the Assembly has been described as “the organisation’s think-tank”.  On 4 October 1994, accession to the ECHR and its additional Protocols became a compulsory membership criterion.  Full membership is granted on the condition that the ECHR is signed immediately upon accession, and that it is ratified within twelve months of the signature date.  This obligation to accede, and the accession procedure, was not an intergovernmental, but an Assembly initiative.  The decision of who could accede would not only be justified in respect to Article 4 of the CE’s Statute, but with reference to the Assembly’s own internal practices that had received no explicit authorisation by the member states.  This procedure was outlined in Opinion No.182(1994) in which the Assembly attached,

great importance to the commitment expressed by the Andorran authorities to sign at the moment of accession and ratify, normally within a year, the European Convention on Human Rights, as well as the protocols thereto, and also to recognise…the compulsory jurisdiction of the European Court of Human Rights (Assembly, Opinion No.182 on the application by the Principality of Andorra for membership of the Council of Europe, 4 October 1994). 

The Assembly’s democratic influence further strengthened the membership criteria for both CE, and EU member states.  The implications of this Assembly initiative would also mean that the Assembly was required to elaborate the procedures to both implement and monitor member states’ compliance, without any explicit authorisation from the member states.

To illustrate, the accession criterion on the abolition of the death penalty, the Assembly has, in the past, refused to ratify the credentials of Assembly members whose states still made use of this form of punishment.  This policy was justified with reference to the Assembly’s own Rules of Procedure.  For example, when Ukraine refused to introduce a moratorium on all executions, the Assembly decided to “consider annulling the credentials of the Ukrainian parliamentary delegation under Rule 6(9)” (Assembly, Amendment No.5 Honouring of the commitments by Ukraine to introduce a moratorium on executions and abolish the death penalty, Document Nos. 7974 and AS/JUR (1997)47, 23 December 1997).

More interesting, however, is the Strasbourg Court’s use of this Assembly policy in its own legal reasoning.  In its final judgment in the cases of Dankevic v. Ukraine, Kuznetsov v. Ukraine, Poltoratskiy v. Ukraine and Khokhlich v. Ukraine of 29 April 2003, the Court referred to the Assembly’s Resolution 1179(1999) and Recommendation 1395(1999) to the CM on the honouring of obligations by Ukraine.  The Court reiterated that the Assembly had stressed the importance of the de facto moratorium on executions and firmly declared that, if further executions took place, the credentials of the Ukrainian parliamentary delegation would be annulled at the following part-session of the Assembly, in accordance with Rule 6 of its Rules of Procedure (European Court of Human Rights, Poltoratskiy v. Ukraine, 29 April 2003, paragraph 108).

The above quotation is important in that the Court’s case law has served to reaffirm the Assembly’s own internal practices and Rules of Procedure as valid and legitimate sources of authority.  They are valid and legitimate in respect to the membership criterion to which CE member states are subject, and with reference to the above illustration, in respect of member states’ obligations on the abolition of the death penalty in Europe.

Nonetheless, despite the importance of the Assembly’s new membership criteria, and its role in ensuring for member state compliance, the CE still remains an archetypal intergovernmental organisation with little democratic control. The CM has, over the years, been reticent in providing the Assembly with more authority.  More recently, in its attempt at improving the “parliamentary scrutiny of international institutions”, the Assembly has sought greater cooperation between the two main CE institutions.  Here, it recommended that the CM provide it with “greater involvement in the budgetary process”, “the official participation of the President of the Assembly in the [CM] meetings”, and “co-decision in the adoption of treaties”.   With the exception of the Assembly President’s official participation, which the CM granted, requests for greater cooperation and co-decision were rejected on the groundsgrounds that “priority should go to giving more impetus to the already made efforts”.