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MINISTERS’ DEPUTIES |
CM Documents |
CM(2022)70 |
15 March 2022[1] |
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1429th meeting, 17 March 2022 2. Current political questions
2.3 Consequences of the aggression of the Russian Federation against Ukraine Legal and financial consequences of the cessation of membership in the Council of Europe under Article 8 of its Statute Memorandum prepared by the Secretariat |
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Under Article 8 of the Statute a member State can cease to be a member of the Council of Europe in twofold manner. The member State in question either complies with the request by the Committee of Ministers to withdraw from the Organisation, or, in case the member State does not comply with such a request to withdraw, the Committee decides that the State’s membership in the Organisation has ceased as from such a date as determined by the Committee. When the cessation of membership becomes effective, the rights and obligations deriving from the Statute cease to apply, meaning that the State in question will no longer be bound by the Statute nor be allowed to participate in any Statute-related activities of the Organisation. Whilst the State that ceases to be a member of the Council of Europe will no longer be required to contribute to the General Budget of the Council as of the date its withdrawal/expulsion becomes effective, it is still required to fulfil its financial obligations arising out of its membership of the Council of Europe up to the date it ceases to be a member of the Organisation. Partial agreements are flexible arrangements whereby some or all members as well as non-members of the Council of Europe may cooperate. However, from a statutory point of view, partial agreements remain an intergovernmental activity of the Organisation much in the same way as any other programme activities, except for the fact that a partial agreement has its own budget and working methods which are determined solely by the members of the partial agreement. Therefore, the cessation of membership in the Organisation is deemed incompatible with the continued participation in such partial agreements. ‘Closed’ conventions, such as the ECHR or the European Social Charter do not provide for non-member State participation. Thus, if a State ceases to be a member of the Council, it will also automatically cease to be a Party to such conventions. The State concerned may no longer ratify conventions or agreements signed before it ceased to be a member, signature to these conventions or agreements is regarded as being suspended. The State in question will, however, remain Party to those Council of Europe conventions open to non-member States, which it has either ratified or signed without reservation as to ratification, whilst still a full member. The ECtHR will retain its competence to deal with applications directed against a State, or introduced by it against another member State, if the acts in question took place no later than six months after the date upon which the withdrawal/expulsion of the State became effective. The final judgments and decisions of the Court continue to bind the State in question even after it has ceased to be a Party to the ECHR or a Council of Europe member and the obligation to abide by the judgments will thus persist. Therefore, the withdrawing/expelled State is not automatically freed from its obligations under the ECHR. Moreover, the Committee of Ministers continues to enjoy a supervisory role in relation to any cases concerning acts preceding the date on which the withdrawing/expelled State ceased to be Party to the ECHR. The Secretary General may decide to terminate employment contracts of staff members working on activities that will be directly affected by the withdrawal/expulsion of the member State, i.e., activities that will be either reduced or terminated in view of the withdrawal/expulsion of the State concerned, whether they are indefinite-term contracts or fixed-term or temporary contracts. This applies irrespective of the staff member’s nationality. As regards staff members possessing the nationality of the withdrawing/expelled member State, the following principles apply: a) Fixed-term or temporary contracts would in principle not be renewed or extended if they are due to expire after the member State concerned has ceased to be a member of the Council of Europe, since it will not be legally possible to offer new employment contracts to persons holding the nationality of a former member State. b) It will not be legally possible to appoint staff on probation if the probationary period ends on a date after the member State has ceased to be a member of the Council of Europe. c) Under the currently applicable Staff Regulations, the Secretary General may decide to maintain or terminate indefinite-term contracts, fixed-term contracts or temporary contracts of staff members possessing the nationality of the withdrawing/expelled member State, in the light of the general, budgetary and organisational situation resulting from the withdrawal/expulsion of the State in question and the specific circumstances of the individual case. The new Staff Regulations that will enter into force on 1 July 2022 no longer contain a reference to termination of an employment contract on the ground that a staff member has the nationality of a member State that has withdrawn or been expelled from the Organisation. It would be for the Committee of Ministers to determine whether similar provisions should be introduced for the period as from 1 July 2022. |
CONTENT
A. General institutional consequences
C. Consequences for Council of Europe Partial Agreements
D. Consequences of the withdrawal or expulsion of a member State for the Secretariat
II. CONSEQUENCES OUTSIDE THE STATUTORY FRAMEWORK
Conventions and agreements concluded within the Council of Europe
i........ Convention for the Protection of Human Rights and Fundamental Freedoms
ii....... Conventions and agreements ratified or signed without reservation as to ratification
iii...... Treaties signed but not yet ratified by the member State in question
iv...... Treaties not signed by the State in question
v....... Bodies established under Council of Europe treaties
vi...... Financial contribution
vii..... Privileges and immunities of the Council of Europe
viii..... Permanent representation at the seat of the Council of Europe
ix...... Conferences of specialised Ministers
LEGAL ASPECTS OF THE CESSATION OF MEMBERSHIP IN THE COUNCIL OF EUROPE
A. General institutional consequences
1. Under Article 8 of the Statute any member State of the Council of Europe ceases to be a member of the Organisation if it, either, complies with the request to withdraw within the deadline set by the Committee of Ministers, or, in case it does not comply with such a request, the Committee of Ministers decides that the State in question ceases to be a member of the Organisation as from such a date as the Committee of Ministers determines.
2. Once the withdrawal/expulsion becomes effective, the State in question is no longer a member of the Council of Europe or a Party to the Statute of the Council. It will therefore no longer be able to lay claim to any right, nor be regarded as bound by any obligation deriving from the Statute or connected to membership of the Council of Europe. In particular, this implies the loss of any right to participate in the statutory activities of the Organisation or to be represented on its statutory bodies and their subsidiary organs. This is a necessary consequence of withdrawal and all which remains for the Committee of Ministers is to take note of the fact.
3. The cessation of membership in the Council of Europe will also extend to the loss of the right of the withdrawing/expelled State to appoint representatives to the Congress of Local and Regional Authorities as only Council of Europe member States and States having been granted the Partner for Local Democracy status under the procedure laid down in Rule 68 of the Rules and Procedures of the Congress are entitled to do so.
4. The final loss of the right to representation of the member State in question in the Parliamentary Assembly, an equally direct consequence of the withdrawal, requires a decision to amend Article 26 of the Statute by deleting the reference to the State whose membership in the Council has ceased and the number of seats to which it is entitled to. In accordance with Article 41 (d) of the Statute, this amendment will have to be passed by means of two identically formal decisions by the Committee of Ministers and the Parliamentary Assembly, and embodied in a certificate issued by the Secretary General.
5. Once the withdrawal becomes effective, the State in question will be regarded as no different from any other non-member State in relation to the decisions of the Committee of Ministers, whether these were taken before or after this date. With the exception of decisions or resolutions adopted by the Committee of Ministers under Council of Europe treaties, including the ECHR (as long as it remains in force for the withdrawing State, see paragraphs 37-38), the State in question will no longer be affected by resolutions or recommendations of the Committee of Ministers. The State in question will, furthermore, no longer benefit from the Council’s intergovernmental work including activities on developing common policy instruments and legal standards, as well as cooperation activities (except for those in which it can participate as a non- member State) through the exchange of knowledge, experiences and good practices and analysis of common and emerging issues. In this context it will not participate in, for instance, conferences, seminars, specialised trainings, courses and study visits, schemes for diplomas and certificates awarded by the Council.
6. The effects of the loss of membership in the Organisation also applies to bodies that are not strictly speaking intergovernmental, but whose membership is restricted to member States of the Council of Europe such as the European Commission against Racism and Intolerance (ECRI) or the European Commission for the Efficiency of Justice (CEPEJ). The effects also apply to the independent institution of the Council of Europe Commissioner for Human Rights with the exception of her activities directly related to the system of the European Convention on Human Rights as indicated in paragraph 40. Only the Statute of the Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL) provides for the participation of non-member States.
7. Any participation in conferences and other activities organised by the Council of Europe by a State that has withdrawn or has been excluded from membership in the Organisation will be governed by the provisions in force and practices followed in matters of participation by non-member States of the Council.
8. Under Article 8 of the Statute, the loss of membership becomes effective either once the State concerned notifies its withdrawal to the Secretary General, or, in case it does not comply with the request to withdraw, on the date set by the Committee of Ministers for the cessation of membership in the Organisation.
9. Until such date as the cessation of membership becomes effective, the State concerned will remain obliged under Article 39 of the Statute to contribute to the Council of Europe’s budget. If the date of cessation falls within a financial year, the contributions would be determined on a pro rata temporis basis.
10. Any unpaid part of the contribution due will accrue a simple monthly interest of 0.5% of the unpaid amount for the first 6 months and 1% for each month thereafter (Article 12, 4th indent of the Financial Regulations). The withdrawing/expelled State will further remain obliged to meet its obligatory contributions and related interest charges towards the budgets of the Council for prior financial years. Thus, a simple monthly interest of 1% will continue to accrue on unpaid amounts on the first day of each month.
11. Article 12 of the Financial Regulations, in conjunction with Article 39 of the Statute, establishes that every member State shall pay at least one third of its contribution in the course of the first two months of the year and the complete balance before the end of the six months period following the notification by the Secretary General.
C. Consequences for Council of Europe partial agreements
General principles
12. From a statutory point of view, partial agreements remain an intergovernmental activity of the Organisation much in the same way as any other programme activities, except for the fact that a partial agreement has its own budget and working methods which are determined solely by the members of the partial agreement. Most partial agreements provide for the possibility of non-member States’ participation as (full or associate) members or observers (‘enlarged partial agreement’ or ‘enlarged agreement’).
13. Whilst in July 2013 the Committee of Ministers agreed upon the ‘practical modalities, governing accessions to and withdrawal from Enlarged and Partial Agreements’, they did not elaborate upon circumstances in which a State withdraws from the Council of Europe altogether. However, given the nature of partial agreements as intergovernmental activities and the seriousness of the violations of Article 3 of the Statute, the cessation of membership would be incompatible with the continued participation in partial agreements. The Committee of Ministers, as the Organisation’s decision-making organ, is empowered to declare the cessation of membership also for partial agreements, without prior consultation, in cases of enlarged partial agreements or enlarged agreements, of the non-member States or the European Union that are members of such agreements.
14. For reasons of clarity and legal certainty, it is advisable that the Committee of Ministers takes a decision (in its composition restricted to the members of the respective partial agreement) determining the cessation of membership and its consequences for each partial agreement. Though formally speaking separate decisions, one for each partial agreement, they could all be included in the Committee of Ministers resolution determining the legal and financial consequences of cessation of membership in the Council. The GRECO represents a special case, because it is not merely an enlarged agreement, but also the monitoring body for the Criminal and Civil Law Conventions on Corruption (ETS Nos 173 and 174). These conventions provide for a compulsory and automatic membership in GRECO. Moreover, the GRECO’s monitoring activities are based on the principles of mutual evaluation and peer pressure. In the case of GRECO, it could be foreseen that the State may continue to participate in the plenary meetings of GRECO only when the latter examines evaluation and compliance reports on that State as foreseen in Article 8 (1) i of the GRECO Statute with a view to providing and receiving information concerning such reports, without the right to participate in the discussion or the adoption of reports under Article 15 of the GRECO Statute, and without the right to vote.
15. Once the State has ceased to be a member of an Enlarged Partial Agreement or an Enlarged Agreement it might, of course, re-apply for membership as non-member State. This would require a decision by the competent body (the Committee of Ministers or the governing body of the respective partial agreement depending on the applicable provisions in each case).
D. Consequences of the withdrawal or expulsion of a member State for the Secretariat
I. The currently applicable Staff Regulations
1) Recruitment and renewal of fixed-term or temporary contracts
16. Article 14 of the Staff Regulations enumerates the conditions which a candidate must fulfil in order to be recruited as a staff member. In particular, Article 14 (a) states that candidates must “be nationals of a State which is a member of the Council of Europe and have the civic rights enabling them to be appointed to the civil service of that State”.
17. The legal implications of this provision are as follows:
Ø The condition of nationality must be met at the time of recruitment but not necessarily throughout the whole period of validity of the employment contract;
Ø Once the contract has been lawfully concluded it can be terminated for the reasons and in accordance with, the procedures foreseen by the Staff Regulations;
Ø Fixed-term or temporary contracts would in principle not be renewed or extended for staff members holding the nationality of a State which is no longer a member of the Organisation.
18. Article 23 of the Staff Regulations sets out the grounds on which the Secretary General may terminate a contract of indefinite or fixed duration. These grounds (abolition of a post, disciplinary dismissal, manifest unsuitability or unsatisfactory performance of the staff member, permanent invalidity) are not of direct relevance to the issue of the withdrawal/expulsion of a member State.
19. This matter is, however, directly addressed in Article 2 of the Regulations on indemnity for loss of job (Appendix VI to the Staff Regulations) which sets out further reasons for which a contract may be terminated and which refers to the situations in which an indemnity for loss of job may be granted to staff:
“An indemnity may be granted to a staff member who holds a firm contract and whose services are terminated for any one of the following reasons:
a. suppression of the post or position occupied by the staff member;
b. changes of such a nature in the duties of the post or position occupied by the staff member that he or she no longer possesses the required qualifications;
c. general staff cuts including those due to a reduction in or termination of the activities of the Council;
d. the withdrawal from the Council of the member state of which the staff member is a national;
e. the transfer of the headquarters of the Council or any of its units to another country and the consequent transfer of the whole staff concerned;
f. the refusal by the staff member, where the contract does not cover the point, to be permanently transferred to a country other than that in which he or she is serving; and
· who is not offered a post or position, as the case may be, in the same grade in the Council; or
· who is not appointed to a vacant post in one of the other co-ordinated organisations at a comparable remuneration; or
· who, if employed in the public service, has not been immediately reintegrated in his or her national civil or military administration.”
20. Article 2 paragraphs (c) and (d) of the Regulations on indemnity for loss of job are particularly relevant in the event of the withdrawal (and expulsion) of a member State.
i) Termination of contracts for reasons of general staff cuts due to reduction or termination of activities (Article 2 (c) of Appendix VI)
21. The withdrawal/expulsion of a member State would inevitably have consequences on the activities of the Council of Europe. Some activities might either be reduced or terminated as a result of the withdrawal/expulsion. This could result in “general staff cuts”, namely the suppression of jobs involved in the activities in question, which could lead to the termination of indefinite or fixed-term contracts of staff members concerned and, if applicable, to the payment of an indemnity for loss of job. This would apply to staff concerned irrespective of their nationality.
ii) Termination of contracts of nationals of the withdrawing member State (Article 2 (d) of Appendix VI)
22. Article 2 (d) of the Regulations on indemnity for loss of job refers explicitly to the withdrawal of a member State and the subsequent termination of the employment contracts of staff members who are nationals of the withdrawing State. It can be applied mutatis mutandis in case of expulsion of a member State.
23. This provision does not provide for an automatic termination of contracts held by nationals of the withdrawing (or expelled) State but enables the Secretary General to terminate some or all such firm contracts and award an indemnity for loss of job, in light of the circumstances, such as budgetary and administrative considerations, qualifications and experience of the staff concerned.
24. One may therefore conclude that the Secretary General enjoys a degree of discretion in selecting those officials, nationals of the withdrawing/expelled member State, who will see their firm contracts terminated. The Secretary General must not take decisions which would discriminate between officials of the same nationality or are based on unlawful or arbitrary considerations. In the light of funds still available, the Secretary General may use a series of objective criteria, making sure to take into account first and foremost the needs and interest of the Organisation while also having regard to the specific circumstances of the individual case.
25. Moreover, for those whose contracts are terminated under Article 2 c) and d) of the Regulations on indemnity for loss of job, the Secretary General will have to further decide on whether or not to award an indemnity for loss of job, as foreseen by the Regulations. Faced with the need to terminate contracts, the Secretary General would have to base his or her decisions on clear, solid, reasonable and measurable grounds to mitigate the risk of successful appeals of such a decision before the Administrative Tribunal.
3) Summary of the consequences on staff members of the withdrawal of a member State under the current Staff Regulations
26. The Secretary General may decide to terminate employment contracts of staff members working on activities that will be directly affected by the withdrawal/expulsion of the member State, i.e., activities that will be either reduced or terminated in view of the withdrawal/expulsion of the State concerned, whether they are indefinite-term contracts or fixed-term or temporary contracts. This applies irrespective of the staff member’s nationality.
27. As regards staff members possessing the nationality of the withdrawing/expelled member State, the consequences can be summarised as follows:
a) Fixed-term or temporary contracts of staff members possessing the nationality of the withdrawing/expelled State would in principle not be renewed or extended if they are due to expire after the member State concerned has ceased to be a member of the Council of Europe since it will not be legally possible to offer new employment contracts to persons holding the nationality of a former member State.
b) It will not be legally possible to appoint staff on probation if the probationary period ends on a date after the State has ceased to be a member of the Council of Europe.
c) The Secretary General may decide to maintain or terminate indefinite-term contracts, fixed-term contracts or temporary contracts of staff members possessing the nationality of the withdrawing/expelled State, in the light of the general, budgetary and organisational situation resulting from the withdrawal/expulsion of the State in question and the specific circumstances of the individual case.
II. The new Staff Regulations
28. In September 2021, the Committee of Minister adopted new Staff Regulations for the Council of Europe which will enter into force on 1 July 2022. The new Staff Regulations would accordingly apply if a State ceases to be a member of the Council of Europe after 30 June 2022. Even if a State ceases to be a member before that date, the new Staff Regulations would apply to terminations of contracts as a result of the withdrawal/expulsion after 30 June 2022.
29. Pursuant to Article 4.2 of the new Staff Regulations “…Only citizens of member States shall be eligible for appointment as staff members…”. Thus, like under the currently applicable Staff Regulations, possessing the citizenship of a member State of the Council of Europe is a basic condition for the recruitment of staff. As a consequence, the legal implications set out above under paragraph 17 remain the same:
- The condition of nationality must be met at the time of recruitment and not necessarily throughout the whole period of validity of the employment contract;
- Once the contract has been lawfully concluded it can only be terminated for the reasons and in accordance with, the procedures foreseen by the Staff Regulations;
- Fixed-term or temporary contracts would in principle not be renewed or extended for staff members holding the nationality of a State which is no longer a member of the Organisation.
30. Article 6 of the new Staff Regulations specifies the possible grounds for termination of service of staff members. According to Article 6.5 appointments may be terminated by the Secretary General subject to prior notice, and the award of an indemnity to staff members confirmed in their employment, in the following cases:
- unsatisfactory performance when attempts to redress it have failed;
- medically certified inaptitude;
- modification of the staff member’s job in such a way that the staff member no longer has the requisite qualifications or experience;
- suppression of the staff member’s job;
- reduction of staff.
31. While some of the circumstances giving a right to an indemnity for loss of job in the event of termination of a firm employment contract listed in the currently applicable Appendix VI to the Staff Regulations (paragraph 19 above) have been integrated into Article 6 of the Staff Regulations, there is no longer a reference in the new Staff Regulations to termination of an employment contract on the ground that a staff member possesses the nationality of a member State which has withdrawn (or been expelled) from the Council.
II. CONSEQUENCES OUTSIDE THE STATUTORY FRAMEWORK
Conventions and agreements concluded within the Council of Europe
i. Convention for the Protection of Human Rights and Fundamental Freedoms
33. The ECHR is a so-called ‘closed’ legal instrument, meaning that only Council of Europe member States are able to become Contracting Parties to the Convention. This is clearly set out in Article 59 (1), which reads: “this Convention shall be open to the signature of the members of the Council of Europe [...].” This is further confirmed by Article 58 (3) ECHR which provides that any Contracting Party “shall cease to be a member of the Council of Europe, shall cease to be a Party to this Convention [...].” Therefore, a State which withdraws or is expelled from the Council of Europe will automatically, as a direct consequence of its withdrawal or expulsion, cease to be a Party to the ECHR, in conformity with the modalities explained below.
34. Article 58 (3) ECHR provides that when a State ceases to be a member of the Council of Europe it will also cease to be a Party to the ECHR and those Protocols it has ratified,[2] under the same conditions as those stipulated for the denunciation of the Convention under Article 58 (1) and (2) of the ECHR. Thus, Article 58 (3) ECHR assimilates the withdrawal/expulsion from the Council of Europe with the denunciation of the Convention: in both cases the member State in question will cease to be a Party to the ECHR six months after the notification of denunciation or the date on which the withdrawal/expulsion took effect.
35. The exact implications of the assimilation of cessation of membership in the Council of Europe with the denunciation of the ECHR are not entirely foreseeable at present in the absence of any authoritative interpretation by the Court of its ratione temporis and ratione personae jurisdiction in the context of Article 58 ECHR.[3]
36. Assimilating the cases of denunciation of the ECHR and cessation of membership would mean that the High Contracting Party concerned will not be released from its obligations under the ECHR in respect to any possible violating acts committed by the withdrawing/expelled State before the end of the six months counted from the date on which the withdrawal/expulsion became effective. The same would apply to the acceptance of the continuing jurisdiction of the ECtHR. The ECtHR would remain competent to deal with applications directed against a withdrawing/expelled State or introduced by it against another member State, provided that they concern acts committed before the expiration of six months as of the date when the withdrawal or expulsion took effect (and continuing situations arising before that date), i.e., until the date the withdrawing/expelled State ceases to be a High Contracting Party to the ECHR. Following this logic, the ECtHR would have to declare all applications directed against or by the State concerned in respect of any acts performed after the date on which it ceases to be a High Contracting Party to the ECHR inadmissible on grounds of “ratione temporis” as well as “ratione personae” incompatibility.
37. The obligation under Article 46 ECHR to abide by the judgments and to accept the Committee of Ministers supervision thereof should ensue on the same terms as those outlined above. The fact that Article 58 (2) ECHR stipulates that a denunciation – or, via Article 58 (3) ECHR, a cessation of membership in the Council of Europe - shall not have the effect of releasing the State concerned from its obligations under the Convention in respect to any acts preceding the date upon which it ceases to be a Contracting Party, also is of consequence for the obligation to provide redress for all established violations and for the Committee of Ministers continued supervision of the execution of judgments and friendly settlements concerned. Final judgments of the ECtHR in respect to applications against the withdrawing/expelled State will thus continue to be binding upon the State concerned even if it has ceased to be a Party to the ECHR or a Council of Europe member.
38. As regards the functions conferred by the Convention on the Committee of Ministers to supervise the withdrawing/expelled State’s continued compliance with past judgments, it will be for the Committee of Ministers to decide on the modalities for the supervision of these cases. In its Resolution CM/Res (2022)1 on the legal consequences of the suspension of the Russian Federation from its rights of representation in the Council of Europe, adopted on 2 March 2022, the Committee of Ministers specified in point 7 that “the Russian Federation may continue to participate in the meetings of the Committee of Ministers only when the latter exercises its functions in respect of the supervision of the execution of judgments under Article 46 of the Convention with a view to providing and receiving information concerning the judgments where it is the respondent or applicant State, without the right to participate in the adoption of decisions by the Committee nor to vote.”
39. According to Article 20 ECHR only High Contracting Parties to the Convention are entitled to have a judge sitting on the Court.
40. With regard to the functions conferred to the Council of Europe Commissioner for Human Rights by Article 36 (3) ECHR, the Commissioner will remain competent to submit comments and take part in hearings in all cases before the Court in respect of the State concerned. The same applies for communications addressed by the Commissioner to the Committee of Ministers under Rule 9 of the Rules of the Committee of Ministers for the supervision of execution of judgments.
41. Notwithstanding the above, the effectiveness of the protection offered by the ECHR depends not only on the formal competence of the Court to decide cases and issue judgments but also on the willingness and capacity of the respondent State to engage with the Council of Europe institutions, its willingness and capacity to bring changes and remedy the violations found. It also depends on the Council of Europe’s institutions’ willingness and capacity to engage in such action. It is for the Court and the Committee of Ministers to evaluate these aspects of the question.
ii. Conventions and agreements ratified or signed without reservation as to ratification
42. The conventions and agreements concluded within the framework of the Council of Europe are not statutory instruments of the Organisation; they are legal instruments which owe their legal existence solely to the will of the Contracting Parties as expressed by their signature and where appropriate, the deposit of their instrument of ratification. The withdrawal of a Contracting Party from the Council cannot therefore, in itself affect the position of this State as a Party to a convention or agreement. In order for a withdrawal/expulsion from the Organisation to have this outcome, a provision to this effect must have been included in one of the articles of the instrument in question.
43. This is the case for those Council of Europe Conventions which are of a ‘closed’ nature, i.e., conventions to which only member States of the Council of Europe may become Parties and which contain a specific provision whereby States which withdraw from the Council automatically cease to be a Party to these convention(s). One such an example is the European Convention on the Suppression of Terrorism (ETS No. 090), Article 15 reads as follows: “This Convention ceases to have effect in respect of any Contracting State which withdraws from or ceases to be a member of the Council of Europe.” Hence, from the date on which the cessation of membership in the Council of Europe becomes effective, the member State in question will cease to be a Party to this Convention.
44. Some of the ‘closed’ conventions concluded in the framework of the Council of Europe do not contain specific provisions on the effects of the withdrawal of a member State to its status as a Contracting Party to the said conventions. The European Social Charter (revised) (ETS No. 163) and the European Charter of Local Self-Government (ETS No. 122) are among such conventions. Both of these treaties contain, however, provisions on denunciation. Article M paragraph 1 of the European Social Charter (revised) reads, for instance, as follows: “Any Party may denounce this Charter only at the end of a period of five years from the date on which the Charter entered into force for it, or at the end of any subsequent period of two years, and in either case after giving six months’ notice to the Secretary General of the Council of Europe who shall inform the other Parties accordingly.”
46. Also, the General Agreement on Privileges and Immunities of the Council of Europe (ETS No. 2) and its Protocols which, whilst not including any explicit provision to this effect, may be regarded as ‘closed’ instruments; reference is made, in this regard, to the considerations concerning privileges and immunities of the Council of Europe set out below (paragraph 60 below).
47. The position of a withdrawing/expelled State should be seen in a different light with respect to conventions or agreements to which it is a Party and whichare open to accession by non-member States. Such ‘open’ treaties contain a clause whereby non-member States of the Council may, after entry into force of these treaties, and under certain conditions, become Parties to them by accession. Unlike the ‘closed’ conventions mentioned above, none of these instruments contain a provision whereby the withdrawal/expulsion of a Party to these conventions from the Council of Europe would automatically imply the denunciation of the treaty in question by this Party. In general, it is not possible to preclude a non-member State of the Council of Europe from being a Party to these conventions and agreements, provided that the State, when it became a Party, fulfilled all the conditions laid down in the treaty itself for being a Party. By ratifying the instruments or signing
them without submitting a reservation whilst still a member of the Council, the member State in question fulfilled this condition and there being no provision to the contrary, must thus be considered to retain, even after ceasing to be a member of the Organisation, the validly acquired status of a Party without needing to fulfil the special conditions for accession by a non-member State.
48. Article 60 of the Vienna Convention on the Law of Treaties (VCLT) foresees a possibility for terminating or suspending the operation of an international treaty as a consequence of a material breach of the treaty. In the context of a standard-setting treaty, such as many concluded in the framework of the Council of Europe, this possibility only exists if the parties to the treaty act collectively, i.e., in the format of the Conference of the Parties, and when they have suffered damage and are thus especially affected (Article 60 (2)(a)(i) and (b) VCLT, 1969). It is arguable that this could be the case in situations of serious violations of Article 3 of the Statute of the Council of Europe, even more so where the Article 3 violation in question results from the aggression of the withdrawing/expelled member State against another member State of the Organisation. Similar considerations could be invoked to justify an exceptional application of the rebus sic stantibus principle within the meaning of Article 62 VCLT. Also in this case collective action by the parties to the respective conventions would appear to be necessary, a Committee of Ministers decision alone not being sufficient.
49. In conclusion, a withdrawing/expelled State will remain a Party to ‘open’ conventions and agreements, ratified by it or signed without reservation as to ratification before withdrawing from the Organisation. This conclusion is based on the principle of respect for treaty commitments.
iii. Treaties signed but not yet ratified by the member State in question
50. According to past Council of Europe practice, the member States may become Parties to Council of Europe treaties as of law. They usually express their consent to be bound by a treaty by signature followed by ratification, acceptance or approval Non-member States which have not participated in the negotiation of the treaties may become Parties to Council of Europe’s treaties upon invitation. They usually express their consent to be bound by accession.
51. The above is reflected in Article A (1) and (2) and Article B (1) of the Model Final Clauses for Conventions, Additional Protocols and Amending Protocols concluded within the Council of Europe and adopted by the Ministers’ Deputies of the Council of Europe on 5 July 2017 read as follows:
Article A – Signature and entry into force
“This Convention shall be open for signature by the member States of the Council of Europe, the non-member States which have participated in its elaboration [and the European Union][or any regional economic integration organisation].
“This Convention is subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.”
Article B– Accession to the Convention
“After the entry into force of this Convention, the Committee of Ministers of the Council of Europe may, after consulting the Contracting Parties to this Convention and obtaining their unanimous consent, invite any non-member State of the Council of Europe [or any regional economic integration organisation] which has not participated in the elaboration of the Convention to accede to this Convention by a decision taken by the majority provided for in Article 20.d. of the Statute of the Council of Europe, and by unanimous vote of the representatives of the Contracting Parties entitled to sit on the Committee of Ministers.”
Prior invitation by the Committee of Ministers is necessary to offer a non-member State the possibility of becoming a Party. Accession is the usual method by which a non-member State expresses its consent to be bound by a treaty as outlined in Article B above but certain treaties require signature followed by ratification, acceptance or approval also by non-member States. ,. Signature and ratification are but two stages of one and the same procedure whereby a State may become a Party to a treaty. A member State that has only signed a treaty, is not yet a Party to that treaty (unless the treaty provides for the possibility of a definitive signature). From the moment when a State loses its membership, it also loses the benefit to become a Party to a treaty without invitation by the Committee of Ministers, as only member States can become a Party without prior invitation.
52. One may conclude that once a State has withdrawn from the Council of Europe, it may no longer deposit instruments of ratification or acceptance of conventions or agreements signed by the State in question whilst it was still a member to the Organisation. As long as this State remains outside the Organisation, its signature to these conventions and agreements is to be regarded as suspended. If the State in question was to become a member State of the Council once more, these signatures would again produce the effects originally attributed to them under the relevant texts.
iv. Treaties not signed by the State in question
53. The position of a member State that has withdrawn from the Council of Europe in respect to such instruments will, of course, be the same as that of any other non-member State of the Council.
54. Any participation in the Council of Europe’s Conventions will be governed by provisions in force and the practices followed in relation to the participation of non-member States of the Council of Europe.
v. Bodies established under Council of Europe treaties
55. If a State remains a Party to an ‘open’ Council of Europe treaty following its withdrawal/expulsion from the Council, it will, in principle, retain all rights under this convention or agreement in regard to participating as a Contracting Party in the work of bodies set up under the provisions of the said convention or agreement. It would be unrealistic to assume that this would not create problems in practical terms (paragraph 48 above) but there are hardly any possibilities under international law to deny a withdrawing/expelled State this conventional right of participation.
56. The withdrawing/expelled State will, however, no longer have the right to participate in the meetings of the Committee of Ministers, including when this statutory organ performs the monitoring of an ‘open’ convention to which the State in question remains a Contracting Party. This is the case, for instance, for the Framework Convention for the Protection of National Minorities (ETS No. 157). Provision could, however, be made for the State in question to participate by correspondence in decisions taken by the Committee of Ministers in accordance to the provisions of the ‘open’ convention(s) to which the withdrawing/expelled State remains a Party, at least in cases in which the Committee functions on the basis of unanimity.
57. A particular problem arises with regard to the European Cultural Convention (ETS No.18). Article 6 (2) of this Convention grants Contracting Parties that are not members of the Council of Europe a right to appoint (a) representative(s) to participate in the meetings of the Committee of Cultural Experts of the Council of Europe (CCC). This Committee no longer exists. Following a restructuring of intergovernmental committees in 1977, the CCC became the Council for Cultural Co-operation (CDCC). The CDCC, in turn, was transformed, in 2001, into four specialised Steering Committees[4] none of which continues to exist as such today. The work of these four specialised Steering Committees has since been taken over by some of the intergovernmental bodies of the Council of Europe (e.g., the Steering Committee for Education (CDEDU) and the Steering Committee for Culture, Heritage and Landscape (CDCPP)). One can hence still maintain that a State that ceases to be a member of the Council of Europe but remains Party to the European Cultural Convention continues to have a right, based on Article 6 (2) of the European Cultural Convention, to participate in the work of these intergovernmental structures. The current terms of reference of these steering committees mention, as their members, all parties to the European Cultural Convention. To change this status quo, it may be possible for the Committee of Ministers, within its competence to adopt and amend the terms of reference of intergovernmental committees of the Organisation, to cut the linkage between the European Cultural Convention and the respective steering committees through the adoption of new terms of reference. When doing so, the Committee of Ministers would, however, need to bear in mind that such changes would leave Article 6 of the European Cultural Convention void of any substance.
58. When a financial contribution by a non-member State Party to a Council of Europe convention is foreseen, the State in question will share the expenses, in pursuance to the rules and procedures governing its contribution, with the remaining States Parties. Also, the draft Resolution on Financial Arrangements for the Participation of the European Union and Non-member States in Council of Europe Conventions, the adoption of which is anticipated to take place shortly, will apply to the withdrawing/expelled State as a non-member State.
59. It should be noted that, apart from the financial arrangements under the European Cultural Convention (ETS No. 18), there are other Council of Europe conventions, such as the Council of Europe Convention on the Counterfeiting of Medical Products and Similar Crimes Involving Threats to Public Health (CETS No. 211) and the Council of Europe Convention on an Integrated Safety, Security and Service Approach at Football Matches and Other Sports Events (CETS No. 218), which require financial contributions from non-member State Parties to their respective monitoring mechanisms.
vii. Privileges and immunities of the Council of Europe
60. The General Agreement on the Privileges and Immunities of the Council of Europe (ETS No. 2, hereafter “the GAPI”) and the six Protocols thereto, are open only to member States of the Council of Europe. None of them contains, however, any specific provision whereby the withdrawal/expulsion from the Council would automatically entail a denunciation of the instruments by the State concerned. The withdrawing/expelled State continues to be bound by the obligations placed on the Contracting Parties by these instruments and to benefit from the rights deriving therefrom in favour of these Contracting Parties, to the extent to which it remains involved in the activities of the Council of Europe or exercised in connection with it. Where no such involvement remains in place, the GAPI and its Protocols de facto cease to apply to the State in question.
viii. Permanent representation at the seat of the Council of Europe
ix. Conferences of specialised Ministers
63. As to the possibility of inviting a withdrawing State to attend as an observer, the Committee of Ministers decided, in 1970, that any member government acting as a Conference host should in advance consult with the representatives of member States of the Council of Europe, in order to obtain their consensus for the issuing of an invitation to a non-member State.[5]
64. The conclusions of this memorandum on the legal aspects of the withdrawal or expulsion of a member State from the Council of Europe are as follows:
i. The rights and obligations deriving from the Statute of the Council of Europe will no longer apply to the State in question, a non-member State of the Council. In particular, this State will no longer be entitled to take part in, or to benefit from, the statutory activities of the Organisation. In addition, in accordance with Article 41 (d) of the Statute, a decision to amend Article 26 to reflect the new configuration of seats in the Parliamentary Assembly following the withdrawal of a member State must be made by both the Committee of Ministers and the Assembly (paragraph 2-4 above).
ii. Any participation by the State in question in conferences or other activities convened by the Council of Europe will be governed by the provisions in force or practices applicable to participation by non-member States (paragraph 7 above).
iii. Such a State will no longer be obliged to contribute to the General Budget of the Council of Europe but is still bound to fulfil its full statutory contribution for the current financial year obligations arising out of its membership of the Council of Europe up to the date it ceases to be a member of the Organisation (paragraph 9 above).
iv. The cessation of membership in the Organisation for serious violations of Article 3 of the Statute is incompatible with the continued participation in partial agreements.[6] The Committee of Ministers is competent to determine the financial consequences for each partial agreement separately, but all such decisions could be included in the CM resolution on the legal and financial consequences of the cessation of membership in the Council of Europe. Readmission to a partial agreement would require a decision by the competent body (the Committee of Ministers or the governing body of the respective partial agreement depending on the applicable provisions in each case) (paragraphs 12-15 above).
v. Pursuant to the currently applicable Staff Regulations, the Secretary General may decide to terminate employment contracts of staff members working on activities that will be directly affected by the withdrawal/expulsion of the member State, i.e., activities that will be either reduced or terminated in view of the withdrawal/expulsion of the State concerned, whether they are indefinite-term contracts or fixed-term or temporary contracts. This applies irrespective of the staff member’s nationality. Fixed-term or temporary contracts of staff members possessing the nationality of the withdrawing/expelled State would in principle neither be renewed nor extended if they are set to expire after the State in question has ceased to be a member of the Organisation. Staff on probation may not be appointed if their probationary period finishes successfully after the withdrawing/expelled State ceases to be a member of the Council. In accordance with Article 2 of Appendix VI to the currently applicable Staff Regulations, the Secretary General may, by taking into account the general, budgetary and organisational considerations following the relevant State’s withdrawal/expulsion and the specific circumstances of the individual case, decide to maintain or terminate indefinite, fixed-term employment contracts of nationals of the withdrawing/expelled State and where appropriate award an indemnity for loss of job. The new Staff Regulations that will enter into force on 1 July 2022, do no longer contain a reference to termination of an employment contract on the ground that a staff member possesses the nationality of a member State that has withdrawn or been expelled from the Organisation, similar to Article 2 of Appendix VI to the currently applicable Staff Regulations. It would be for the Committee of Ministers to determine whether similar provisions should be introduced for the period as from 1 July 2022 (paragraphs 16-32 above).
vi. As the ECHR is a so-called ‘closed’ instrument, only Council of Europe member States may become High Contracting Parties to the Convention. Thus, as set out in Article 58 (3) ECHR, a State which withdraws or is expelled from the Council will automatically cease to be Party to the ECHR six months after it ceases to be a member State of the Organisation (paragraph 34 above).
vii. Without prejudice to any subsequent interpretation by the Court, it would appear that the ECtHR will continue to remain competent to process and decide applications directed against or lodged by a withdrawing/expelled State provided that the acts concerned were committed no later than six months after the date on which the withdrawal/expulsion became effective. With regard to the execution of judgments and the Committee of Ministers related competences, much like the ECtHR, the Committee would continue to supervise the execution of judgments and friendly settlements preceding the date on which the withdrawing/expelled State ceased to be Party to the ECHR (paragraphs 36-38 above).
viii. In relation to ‘closed’ conventions, such as the European Convention on the Suppression of Terrorism, the withdrawing State will automatically cease to be a Party, possibly following the expiry of the time period foreseen in case of denunciation (paragraphs 42-43 above).
x. The withdrawing/expelled State may no longer deposit instruments of ratification or acceptance of conventions or agreements signed before its withdrawal. As long as the State in question is not a member of the Organisation, its signature to these conventions and agreements is to be understood as suspended (paragraphs 50-52 above).
xi. If the withdrawing/expelled State continues to be a Party to a Council of Europe convention or agreement following the cessation of its membership in the Council, it will in principle also continue to enjoy all rights conferred to those participating in the work of the bodies set up by the said treaty. In instances where the treaty does not call for the establishment of such a body, the Committee of Ministers may decide to enable the withdrawing State to participate by correspondence in decisions taken by the Committee of Ministers in accordance to the provisions of the ‘open’ convention(s) to which the withdrawing/expelled State remains a Party (paragraphs 55-57 above).
xii. Once the withdrawal/expulsion of the member State concerned becomes effective, the General Agreement on Privileges and Immunities of the Council of Europe and Protocols thereto will only apply to it to the extent to which it remains involved in the activities of the Council of Europe or exercised in connection with it. Where no such involvement remains in place, the GAPI and its Protocols de facto cease to apply to the State in question (paragraph 60 above).
xiii. Since the State in question has no claim to maintain a permanent representation to the Council of Europe in Strasbourg, all future communications to national authorities should be addressed directly to the Ministry of Foreign Affairs, unless the authorities indicate some other official channel for this purpose (paragraph 61 above).
xiv. The State in question should not be invited to participate as of right, in Conferences of specialised Ministries in fields which do not form part of the regular operations of the Council of Europe. Regarding the invitation to attend such Conferences as an observer State, the Committee of Ministers may choose to follow the previously established practice in this matter and let the host State consult the member States prior to the Conference to obtain an agreement on the question of whether to issue an invitation to non-member States of the Council (paragraphs 62-63 above).
[1] This document has been classified restricted until examination by the Committee of Ministers.
[2] All protocols providing for new rights usually stipulate that the relevant provisions shall be regarded as additional articles to the ECHR and that all provisions of the ECHR apply accordingly, cf., for instance, Article 7 of Protocol No. 7 to the EHCR (ETS No. 117).
[3] Pursuant to Article 32 ECHR the jurisdiction of the Court extends to all matters concerning the interpretation and application of the Convention, i.e. also to the interpretation of Article 58 ECHR.
[4] The Steering Committee for Education (CDED), the Steering Committee for Higher Education and Research (CDESR), the Steering Committee for Culture (CDCULT) and the Steering Committee for Cultural Heritage (CDPAT).
[5] Decision CM/Del/Concl.(70)186, point XXIII (a) (ii) para III 3 and point XXX (j).
[6] GRECO constitutes an exception as outlined in para. 13.