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Institutionally Blind: The next steps in reforming the Council of Europe and the OSCE

Article by Adam Hug

November 24, 2017

Institutionally Blind: The next steps in reforming the Council of Europe and the OSCE

The Council of Europe (CoE) and Organization for Security and Co-operation in Europe (OSCE) are two regional bodies that bring together European, post-Soviet (and in the case of the OSCE) North American states to address fundamental issues relating to human rights and security. Here in the UK beyond periodic political attacks on the European Court of Human Rights[1], little is known by the public about their activities. However particularly in the countries of the former Soviet Union these institutions can play a significantly more central role in influencing political change, yet both are organisations under significant strain.

This paper is based on the findings of an expert roundtable that took place in July 2017 bringing together academics, human rights activists and officials[2] to debate the challenges facing these two organisations, building on the research conducted in the Foreign Policy Centre’s February 2016 publication Institutionally Blind: International organisations and human rights abuses in the former Soviet Union[3].

Overview

Both institutions are facing significant tensions over geopolitics and allegations of influence and corruption. In June 2017 the OSCE overcame months of deadlock between liberal and authoritarian state actors over who should fill key positions within the organisation, with the approach to the OSCE’s human dimension as a significant stumbling block and with all candidates requiring consensus. Switzerland’s former OSCE envoy Thomas Greminger has been appointed Secretary General, Iceland’s former foreign minister Ingibjorg Solrun Gisladottir becomes head of the Office for Democratic Institutions and Human Rights (ODIHR), former OSCE Secretary General Lamberto Zannier becomes the High Commissioner on National Minorities and French former Socialist Party leader Harlem Desir takes over as Representative on Freedom of the Media[4]. The deadlock was broken too on the 18 months of wrangling over the 2017 annual budget finally approved on 1st June 2017, half way through the year[5]. The financial pressures faced by the human dimension bodies such as the Office for Democratic Institutions and Human Rights (ODIHR) remain acute, while the crisis in Ukraine has taken up a lot of the institution’s focus and time.

The CoE has been rocked by a corruption scandal in the Parliamentary Assembly of the Council of Europe (PACE), a crisis that observers had long seen coming, as set out in the Institutionally Blind publication and most notably in reports by the European Stability Initiative in its Caviar Diplomacy series. Luca Volontè, former chair of the Centre-Right European People’s Party grouping at PACE is being investigated for allegations that he received a bribe of £2.39 million from groups linked to the Government of Azerbaijan[6], while current PACE President Pedro Agramunt has been stripped of his powers. Although the trigger for Agramunt’s defenestration has been the result of a visit to Syria as guest of the Russians, it follows years of concerns over his tendency to overlook human rights violations in well-resourced states, notably in relation to Azerbaijan and the issue of political prisoners.

The future of both institutions as key players in supporting democracy and good governance remains uncertain at a time when liberal institutional values are being pressured by resurgent authoritarianism and ‘illiberalism’ across the region, particularly in the former Soviet Union and eastern Europe; increasingly insular and economically focused politics in Western nations and the related reduction of Western influence in the post-Soviet space. This paper does not seek to address all of the challenges that the OSCE and Council of Europe face in relation to human rights issues but focuses on the priorities raised by experts at the roundtable.

Parliamentary Assemblies

The role of PACE and the Parliamentary Assembly of the OSCE (OSCE PA) are a major focus of NGO and activist concern about the operation of these institutions and their impact on human rights standards. The key issues of the roundtable matched those of the 2016 publication, the need for transparency and accountability, so that what Parliamentarians do in these institutions does not happen in the dark, that their participation does not get used as an opportunity for personal enrichment, whether through legal (but unethical) business deals or corrupt practices.

There is some hope amongst experts that the probe into the PACE corruption scandal has the potential to be a significant lever for change. The investigation is being led by internationally respected judges, including the UK’s Sir Nicolas Bratza (former President of the European Court of Human Rights), and has been given a wide remit to address structural problems in the organisation. The scandal too has given an opportunity for Parliamentarians themselves to speak up about the problems the organisation faces, with the UK’s Roger Gale MP noted as playing a positive role in response to the crisis.

Furthermore the CoE’s Group of States Against Corruption (GRECO) was invited by PACE to play an active role in strengthening the organisation’s code of conduct[7]. Its assessment of the code, published in June 2017, has been widely praised by activists for drawing attention to significant shortcomings in its current formulation and implementation[8]. The report criticised the supervision PACE provides of its members as ‘weak’ and ‘excessively discretionary’ with no sanction against members so far recorded. The GRECO report calls for mechanisms to remove immunity and for greater awareness raising around existing standards. Despite the focus on corruption at PACE it was noted that the OSCE PA doesn’t even have a code of conduct against which to hold its members to account.

Roundtable participants wanted to see new ways to increase public awareness of the activities of Parliamentarians who take part in the two Parliamentary Assemblies, with the lack of scrutiny noted as a potential reason why positions taken by members of the Assemblies can often diverge from their national foreign policy. There was a focus on the desire for votes at PACE and OSCE PA to be recorded via national level transparency and accountability mechanisms, such as for example through the ‘They Work for You’ website in the UK. While there have been steps to record information about voting behaviour by the institutions themselves and regional level resources, such resources are likely only to be accessed by experts rather than a politician’s constituents.

Where Parliamentarians are doing a good job using their roles at OSCE and the Council of Europe effectively, roundtable participants felt that there needs to be scope for civil society to praise their efforts, albeit perhaps in a targeted way to NGO supporters, as not all MPs, even when they are doing the right thing, are keen to have their involvements overseas publicised to all their constituents. It was also noted that a number of members of national delegations may be from unelected or indirectly elected chambers such as the UK House of Lords, limiting the scope for public pressure.

Improving the status of delegations within Parliaments remains another important tool in order to encourage the involvement of active, high quality members. It was noted that in the UK the status of the delegations is not high but that the former Europe Minister David Lidington took an active role in meeting with the delegation ahead of plenary sessions, and his successors have also looked to provide regular meetings, particularly with the delegation chairs. There needs to be scope to more widely promote within Parliament what the delegations can do, increasing the links with relevant Parliamentary Committees, and dispelling misperceptions to help recruit better candidates for the available posts. In the UK it has been noted that there is higher than usual competition for places amongst Labour politicians in the new 2017 UK Parliament[9]. The UK Parliament’s role in providing clerking services to the OSCE PA was noted as an opportunity for influencing its operation and its rules of procedure.

The Council of Europe’s attempts to apply political sanctions to Russia after its actions in Crimea by the withdrawing of voting and other rights from Russian delegates at PACE has triggered a refusal by Russia to pay its £33m annual subscription to the organisation as a whole, a source of political tension to come and of further pressure on already stretched budgets[10]. The Council of Europe will be forced to wait 2 years before formal enforcement action can be taken against the Russians for this action, though other options are being considered to break the deadlock.

The Venice Commission and the OSCE High Commissioner on National Minorities

Both the Council of Europe and OSCE are home to a range of specialist mechanisms that contain vital technical expertise, which can support efforts to promote good governance, democracy and human rights in the organisation’s respective regions. The roundtable drew attention to some specific issues related to two of these mechanisms.

The CoE’s European Commission for Democracy through Law (known as the Venice Commission) is one of the most widely respected bodies in the two institutions, drawing support both from Governments and the expert and activist communities. Seen as a ‘lode star for the rule of law in the region’ it is not regularly criticised by authoritarian regimes, unlike other human rights focused bodies. However, while this is a reflection of the quality of the legal work undertaken to scrutinise proposed legislation across the region, it is also perhaps a reflection that a positive report from the Venice Commission around the written text of national legislation can be used to promote an image of compliance with international human rights standards, irrespective of whether such laws are implemented in an appropriate manner. Scope to fully scrutinise post-legislative implementation requires political will in other parts of the Council of Europe and other bodies, something that is often lacking. Furthermore, there is a noted tendency that officials and politicians often defer to the Venice Commission when a contentious issue is being scrutinised as a way of avoiding having to take a stand on controversial issues.

The treatment of the previous OSCE High Commissioner on National Minorities, Astrid Thors, by the Russians has been the source of much anger within the expert community. Thors was seen to be denied the opportunity of a second term of office due to robust statements in relation to the situation in Crimea and the ongoing conflict in Ukraine, where she hewed close to the line put out by the ODIHR in a public way not previously seen by holders of this security-focused post, who had previously levelled their criticisms behind closed doors[11].

Election monitoring

The OSCE’s ODIHR sets the gold standard for election observation in the region, as the only group with a significant long-term presence ahead of ballots taking place and the political independence to take critical stances based on the evidence found. The Institutionally Blind publication had been clear that ‘the OSCE must defend the role of ODIHR in providing long-term election observation, ensuring that it remains an assessment mechanism judging countries election practices, rather than simply becoming a method for information exchange.’ The roundtable audience were broadly in agreement on this, however some notes of caution were sounded over both the high cost of delivering the method of observation that ODHIR provides and the way in which regimes in the region are becoming ever more adept at promoting their own local or regional (e.g. CIS) observers to provide a more pro-Government spin on the election process, sometimes co-opting Western Parliamentarians to give a veneer of international respectability to the narratives fed to their compliant medias. The all too regular role of PACE and OSCE PA observation missions in diluting strong ODIHR messages on political grounds have been well documented by the FPC, ESI and others.

ODIHR observation faces three particular practical problems. Firstly, forces at the OSCE Permanent Council, most notably Russia, have blocked additional funding to support ODIHR in delivering its missions. This has been exacerbated by the wider budget struggles ODIHR faces, where, for example, extra Warsaw-based staff posts have also been blocked by Russian veto. Secondly, OSCE member states are not providing the number of observers (both long-term and short-term) that ODIHR believes it requires to do its job properly. For example, the ODIHR mission to the (highly contentious) 2016 US Presidential election only received a quarter of the long-term observers that were requested, with local consulates and Embassies having to make up the gap through short-term observers.

Despite the concerns about the extent to which authoritarian regimes have become adept at diluting the impact of critical ODIHR observation missions, the independent research they produce can still have an impact and can make independent civil society feel that there is some solidarity with their experience from the international community. Clearly there is more other institutions and civil society can do to focus attention on the implementation of observation findings. Roundtable participants also argued that it was unwise and counter-productive for PACE and/or the OSCE PA to send observation missions to countries where ODIHR believes it is unable to operate freely.

The third problem that the OSCE faces is the lack of implementation of the recommendations which appear in the final report of an ODIHR Election Observation Mission. In the absence of an agreement to provide an obligatory report, all states should be encouraged to voluntarily make a statement as to what they have done to implement the EOM recommendations to the Permanent Council, as some states do already.

The future of field offices

The number of field offices for both the OSCE and Council of Europe have been on the wane due to push-back from host countries and geopolitical wrangling at ministerial level[12]. For example, following a decision in May 2017, the OSCE will no longer have a field presence in the South Caucasus due to the withdrawal of the OSCE Office in Yerevan due to an Azerbaijani veto of an extension to its mandate[13]. Even where downgraded missions or offices are able to be on the ground (as ‘project offices’ or ‘project coordinators’), their ability to support independent civil society is limited. The Institutionally Blind publication called for a greater political focus on defending the ability of the CoE and the OSCE to have a meaningful presence on the ground across the region. However, it is clear that at present these organisations are absent from a number of countries, and in several countries where they do have a presence, they are not able to operate freely.

Roundtable participants were critical of the level of organisational priority given to the country presences, with some Heads of Office and Ambassadors seen as diplomats serving their last post before retirement, lacking the vigour or political will to fight their corner on human rights issues. In challenging political environments, independent civil society has sometimes seen officials reticent to meet with them or speak out on controversial issues. Funding and holding activities that only involve GONGOs (sometimes the only organisations that are officially registered) is seen to undermine the standing of the Council of Europe and OSCE amongst those most active on human rights issues.

There is a significant debate around whether having any presence in a repressive country is ‘better than nothing’, a platform for future activity and soft engagement, both with the regimes and with civil society. Outspoken activity clearly creates a risk that the permission for the office to exist in a country would be withdrawn. However the roundtable participants argued that the OSCE and CoE need to reassess this approach. They gave two particular examples, the Council of Europe’s office in Azerbaijan and the OSCE Project Coordinator in Uzbekistan, as offices that should be closed, with their presence seen as counter-productive to the reputation and goals of their respective organisations. Therefore both the OSCE and Council of Europe should review the activities of their field offices and consider whether it may be better to withdraw their presence on the ground, at least in capacities relating to human rights and governance reform. The alternative model could be that international donors (such as the EU or UK) directly support the creation of ODIHR project offices for particular countries/regions based out of Warsaw, following the recent EU-backed model ODIHR is developing for the Western Balkans[14].

Final thoughts

The discussion at the roundtable ranged widely across the challenges facing the region. It noted a number of additional challenges.

The first related to the future role of the UK in these organisations. Concerns were raised that ‘Brexit’ could lead to the current Conservative Government reopening its long-held plans to implement a British Bill of Rights and seek to withdraw from the jurisdiction of the European Court of Human Rights, and thereby from the Council of Europe. Despite the Conservative Party’s 2017 manifesto pledge not to withdraw from the European Convention on Human Rights in the current parliament[15], given the Prime Minister’s past belief that the UK should withdraw from the Convention[16] and separate political statements that the reason for not withdrawing is due to the focus on achieving Brexit, it is clear that as and when the UK leaves the EU, the discussion around the future of its membership of the Council of Europe will reopen in earnest. However, in the wake of the UK’s departure from the European Union, the OSCE and Council of Europe will become the main pan-regional bodies that the UK remains involved with, making them even more important forums for collaboration and engagement amongst ministers, Parliamentarians and officials.

The second relates more broadly to the future of these institutions. Created in a different time and in different political contexts, the question of whether they continue to have relevance remains a live issue. Perceptions of corruption need to be cleared from the Council of Europe if it is to reestablish its standing as the European continent’s institutional champion for human rights. The OSCE will continue to be dogged by the challenge of gaining consensus for most of its activities and appointments. With Russia unlikely to relent on that point in the near future, creative ways will need to be found to fund the important work delivered by existing institutions such as the ODIHR.

As noted above, the future of the UK and Russia in the Council of Europe is far from certain. Similarly, the extent to which Central Asian states stay engaged in Western-facing organisations as US and European regional influence wanes, remains an open question. So the outlook remains cloudy for these institutions, however there remains significant scope for civil society and ethically-minded politicians and officials to help deliver institutional change that can still have an important impact on the standards of human rights, democracy and good governance across the former Soviet Union, Europe and beyond.

Recommendations

  • Resolve the institutional budget freeze, or find creative solutions to directly fund the activity of the ODIHR and other special mechanisms from EU, UK and other donor funding.
  • Provide adequate staffing for election observation missions and to fill other posts from Western diplomatic services.
  • Improve transparency and accountability of the work of national politicians in the international Parliamentary Assemblies.
  • Fight for better functioning field offices, but where they cannot operate independently and effectively, they should be withdrawn and their functions delivered directly from Strasbourg (CoE), Vienna (OSCE) and Warsaw (ODIHR).

[1] Often conflated with the EU and its European Court of Justice

[2] In this paper where there are references to ‘some experts/activists/participants’ this means that this position is based on comments made at the July roundtable by specific people (or groups of people) who were speaking under the Chatham House rule of non-attribution.

[3] Adam Hug (ed.), Institutionally blind? International organisations and human rights abuses in the former Soviet Union, Foreign Policy Centre, February 2016, http://fpc.org.uk/publications/institutionallyblind

[4] Reuters, OSCE member states, including Russia, reach deal to fill vacant posts, July 2017,

http://www.reuters.com/article/us-europe-security-osce-idUSKBN19W1KM

[5] The previous 2016 budget had been approved on 31st December 2015  see OSCE Funding and Budget, http://www.osce.org/funding-and-budget, OSCE, Permanent Council approves OSCE budget for 2017, June 2017, http://www.osce.org/chairmanship/320921 and OSCE, DECISION No. 1197

APPROVAL OF THE 2016 UNIFIED BUDGET, December 2015,  http://www.osce.org/pc/215416?download=true

[6] Jennifer Rankin, Council of Europe urged to investigate Azerbaijan bribery allegations, The Guardian, February 2017, https://www.theguardian.com/law/2017/feb/01/council-of-europe-urged-investigate-azerbaijan-bribery-allegations

[7]PACE, Corruption allegations at PACE: Bureau decides on three-step response, January 2017, http://www.assembly.coe.int/nw/xml/News/News-View-EN.asp?newsid=6514&lang=2&cat=13

[8] GRECO, Assessment of the Code of Conduct for Members of the Parliamentary Assembly of the Council of Europe, June 2017, https://rm.coe.int/assessment-of-the-code-of-conduct-for-members-of-the-parliamentary-ass/1680728008

[9] Perhaps reflecting the current state of that party’s Parliamentary politics with some who would otherwise have been considered for Shadow Ministerial posts now looking for new roles in the Parliament.

[10] Tom Batchelor, Russia cancels payment to Council of Europe after claiming its delegates are being persecuted over Crimea, Independent,  June 2017,  http://www.independent.co.uk/news/world/europe/russia-cancels-council-of-europe-payment-members-persecuted-a7816951.html

[11] Melissa Hooper, Russia and the OSCE: Anatomy of a takedown, Human Rights First, September 2016,

http://www.humanrightsfirst.org/blog/russia-and-osce-anatomy-takedown-0  See also Christian Nünlist, The OSCE and the Future of European Security, Center for Security Studies (CSS), February 2017, http://www.css.ethz.ch/en/services/digital-library/articles/article.html/214edaf2-cb54-4191-a9de-7dcc719e6a96 Finnish Broadcasting Company, Daily: Russia blocks re-appointment of Finn as OSCE Minorities High Commissioner, August 2016, https://yle.fi/uutiset/osasto/news/daily_russia_blocks_re-appointment_of_finn_as_osce_minorities_high_commissioner/9131135

[12] OSCE, Closed field operations and related field activities, http://www.osce.org/closed-field-operations

[13] US Mission to the OSCE,  Statement on the Closure of the OSCE Office in Yerevan, May 2017, https://osce.usmission.gov/statement-closure-osce-office-yerevan/

[14] OSCE, EU Commissioner Hahn, ODIHR Director Link launch project supporting democratic elections in Western Balkans, June 2017, http://www.osce.org/odihr/elections/325751

[15] Christopher Hope,  Britain to be bound by European human rights laws for at least another five years even if Tories win election, Daily Telegraph, May 2017 http://www.telegraph.co.uk/news/2017/05/18/britain-bound-european-human-rights-laws-least-another-five/

[16]Anushka Asthana and Rowena Mason, UK must leave European convention on human rights, says Theresa May, April 2016, The Guardian,

https://www.theguardian.com/politics/2016/apr/25/uk-must-leave-european-convention-on-human-rights-theresa-may-eu-referendum

Footnotes
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