Parliamentarization of International Governmental Organizations (European Union and its Neighbours in a Globalized World, 2) 3030713407, 9783030713409

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European Union and its Neighbours in a Globalized World 2

Aleksandra Chiniaeva

Parliamentarization of International Governmental Organizations

European Union and its Neighbours in a Globalized World Volume 2

Series Editors Marc Bungenberg, Saarbrücken, Germany Mareike Fröhlich, Saarbrücken, Germany Thomas Giegerich, Saarbrücken, Germany Neda Zdraveva, Skopje, North Macedonia Advisory Editors Başak Baysal, Istanbul, Turkey Manjiao Chi, Beijing, China Annette Guckelberger, Saarbrücken, Germany Ivana Jelić, Strasbourg, France Irine Kurdadze, Tbilisi, Georgia Gordana Lažetić, Skopje, North Macedonia Yossi Mekelberg, London, UK Zlatan Meškić, Riyadh, Saudi Arabia Tamara Perišin, Luxembourg, Luxembourg Roman Petrov, Kyiv, Ukraine Dušan V. Popović, Belgrad, Serbia Andreas R. Ziegler, Lausanne, Switzerland

The series “The European Union and its Neighbours in a Globalized World” will publish monographs and edited volumes in the field of European and International Law and Policy. A special focus will be put on the European Neighbourhood Policy, current problems in European and International Law and Policy as well as the role of the European Union as a global actor. The series will support the cross-border publishing and distribution of research results of cross-border research consortia. Besides renowned scientists the series will also be open for publication projects of young academics. The series will emphasize the interplay of the European Union and its neighbouring countries as well as the important role of the European Union as a key player in the international context of law, economics and politics. Unique Selling Points: • Deals with a wide range of topics in regard of European and International Law but is also open to topics which are connected to economic or political science • Brings together authors from the European Union as well as from accession candidate or neighbouring countries who examine current problems from different perspectives • Draws on a broad network of excellent scholars in Europe promoted by the SEE | EU Cluster of Excellence, the Europa-Institut of Saarland University as well as in the South East European Law School Network

More information about this series at http://www.springer.com/series/16257

Aleksandra Chiniaeva

Parliamentarization of International Governmental Organizations

Aleksandra Chiniaeva Saarbrücken, Germany

ISSN 2524-8928 ISSN 2524-8936 (electronic) European Union and its Neighbours in a Globalized World ISBN 978-3-030-71340-9 ISBN 978-3-030-71341-6 (eBook) https://doi.org/10.1007/978-3-030-71341-6 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Acknowledgments

It would not have been possible to write this doctoral thesis without the help, inspiration, and support of the kind people around me. I owe my deepest gratitude and sincere thanks to my supervisor, Univ.-Prof. Dr. iur. Thomas Giegerich, LL.M., for providing me with the opportunity to write my PhD thesis at Saarland University. I am grateful to him for his wisdom, scholarly guidance, constructive comments and advice, and genuine kindness and support over the years. I would also like to express my sincere thanks to Univ.-Prof. Dr. iur. Torsten Stein for writing the second evaluation report for my doctoral thesis. I wish to express my heartfelt thanks to Lisa Tabassi, former Head of Legal Services at the Organization for Security and Co-operation in Europe. I am thankful for her infinite patience, kindness, and help with understanding some of the legal issues regarding the law of international organizations, particularly the OSCE’s legal personality. Also, I am thankful to Andrew Drzemczewski, former Head of the Legal Affairs and Human Rights Department of the Parliamentary Assembly of the Council of Europe, who was my supervisor during my internship in the PACE and gave me professional advice. I wholeheartedly thank my husband, Alexander Belyaev, and my daughter Sabina, for their love, support, inspiration, and boundless patience. I am deeply grateful to my mother and father for all their care, encouragement, and belief in me. Finally, I remember with much gratitude and appreciation those people and institutions that cannot be listed in this limited space, but that have helped me, directly or indirectly, to complete my thesis.

v

Contents

1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Objectives and Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1.1 International Organizations . . . . . . . . . . . . . . . . . . . . . . . 1.1.2 Intergovernmental Organizations (IGOs) . . . . . . . . . . . . . 1.1.3 International Parliamentary Assembly . . . . . . . . . . . . . . . 1.2 Democratic Legitimacy of IGOs . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Books, Book Chapters, Articles, Studies, Papers . . . . . . . . . . . . .

. . . . . . . .

1 2 3 4 6 6 9 9

2

Characterization of International Parliamentary Bodies . . . . . . . . . 2.1 Geographical Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Degree of Affiliation with the IGO . . . . . . . . . . . . . . . . . . . . . . . 2.2.1 Parliamentary Assemblies with Formal Status Within the IGO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.2 Parliamentary Assemblies with Informal Status Within the IGO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Supranational Parliamentary Institutions . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Books, Book Chapters, Articles, Studies, Papers . . . . . . . . . . . . .

. . .

11 11 12

.

13

. . . .

13 15 18 18

The European Parliament . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Composition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Structure and Operation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1 Political Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.2 Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.1 Legislative Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.2 Budgetary Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.3 Supervisory Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Books, Book Chapters, Articles, Studies, Papers . . . . . . . . . . . . .

. . . . . . . . . . .

21 21 26 26 26 30 30 34 36 39 39

3

vii

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Contents

4

Inter-Parliamentary Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Historical Development, Definition and Legal Status . . . . . . . . . . 4.2 Composition and Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 IPU Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.1 Common Principles for Support to Parliaments . . . . . . . . 4.3.2 Parliamentary Conference on the WTO . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Books, Book Chapters, Articles, Studies, Papers . . . . . . . . . . . . .

. . . . . . . .

41 41 47 49 49 50 52 52

5

The Organization for Security and Co-operation in Europe . . . . . . 5.1 Legal Basis and Legal Status of the OSCE . . . . . . . . . . . . . . . . . 5.1.1 The Blue Book . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.2 The Helsinki Final Act . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.3 Charter of Paris for a New Europe . . . . . . . . . . . . . . . . . 5.1.4 Rome Decision 1993 and the Question of Legal Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.5 Budapest Summit 1994 and the Legal Status of the OSCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 OSCE Parliamentary Assembly . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.1 Establishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.2 Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.3 Budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.4 Relation with the Parent Organization . . . . . . . . . . . . . . . 5.3 OSCE PA Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.1 OSCE PA and Protection of National Minorities . . . . . . . 5.3.2 Monitoring of Fulfilling OSCE Commitments by pS . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Books, Book Chapters, Articles, Studies, Papers . . . . . . . . . . . . .

. . . . .

53 53 53 54 55

.

57

. . . . . . . . . . .

62 65 65 68 69 70 83 84 85 91 91

The Council of Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1 Background of Creation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 Legal Basis and Legal Status of the CoE . . . . . . . . . . . . . . . . . . 6.3 Parliamentary Assembly of the Council of Europe (PACE) . . . . . 6.3.1 Establishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.2 Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.3 Budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.4 Role of PACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.5 Relations Between the Committee of Ministers and the Parliamentary Assembly . . . . . . . . . . . . . . . . . . . . . . . . . 6.4 PACE’s Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4.1 Supervising the Implementation of ECtHR Judgments . . . 6.4.2 Blacklists and Secret Detentions . . . . . . . . . . . . . . . . . . . 6.4.3 Relations with the CIS Regarding the ECHR . . . . . . . . . . 6.5 Comparative Analysis of the OSCE PA and PACE . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Books, Book Chapters, Articles, Studies, Papers . . . . . . . . . . . . .

. . . . . . . .

93 93 95 101 101 102 104 107

. . . . . . . .

109 113 114 120 122 125 130 130

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Contents

ix

Cooperation Between the OSCE PA and PACE . . . . . . . . . . . . . . . . 7.1 The Legal Framework of OSCE PA–PACE Cooperation . . . . . . . . 7.2 Election Observation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.1 International Sources and Standards Related to the Election Observation Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.2 OSCE Commitments on Election Observation . . . . . . . . . . 7.2.3 PACE Election Observation Activity . . . . . . . . . . . . . . . . . 7.2.4 Election Observation As a Type of Co-operation . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Books, Book Chapters, Articles, Studies, Papers . . . . . . . . . . . . . .

133 133 136

8

Parliamentarization at the Global Level . . . . . . . . . . . . . . . . . . . . . 8.1 Parliamentary Assembly Inside the UN . . . . . . . . . . . . . . . . . . . 8.1.1 The Question of Establishment . . . . . . . . . . . . . . . . . . . . 8.1.2 Cardoso Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.3 Election Process to the UNPA . . . . . . . . . . . . . . . . . . . . 8.1.4 Composition of the UNPA . . . . . . . . . . . . . . . . . . . . . . . 8.2 Parliamentary Assembly Outside the UN (Strauss-Falk Proposal) . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Books, Book Chapters, Articles, Studies, Papers . . . . . . . . . . . . .

157 158 158 162 164 165 166 168 168

9

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

7

. . . . . . . . .

137 139 146 152 155 155

Appendix 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 Appendix 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 Table of Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 Table of International Treaties, Conventions and Other Documents of the IGOs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 Table of International Agreements, Declarations, Resolutions, and Other Documents of the International Parliamentary Organs, Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209 Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215 Table of Official Studies, Reports and Guidelines . . . . . . . . . . . . . . . . . . 217 List of Websites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221

Abbreviations

CEDAW CiO CIS CLAHR CoE CSCE ECHR ECSC ECJ ECtHR EEA EEC EEA JPC EFTA EOM EP GA GPA HCNM HRC CIS ICERD ICJ IEOM IGO(s) IIA ILO

Convention on the Elimination of All Forms of Discrimination against Women Chairperson-in-Office Commonwealth of Independent States Committee on Legal Affairs and Human Rights of the PACE Council of Europe Conference on Security and Cooperation in Europe The European Convention on Human Rights The European Coal and Steel Community European Court of Justice European Court of Human Rights European Economic Area European Economic Community EEA Joint Parliamentary Committee European Free Trade Association Election observation mission European Parliament General Assembly of the United Nations Global Parliamentary Assembly High Commissioner on National Minorities Human Rights Commission of the Commonwealth of Independent States International Convention on the Elimination of All Forms of Racial Discrimination International Court of Justice International election observation mission Intergovernmental organization(s) Interinstitutional agreement International Labour Organization

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xii

IO IPA CIS IPU KIC LTOs MC MEP(s) MP(s) MPEPIL NATO NATO PA NGO(s) ODIHR OHCHR OSCE OSCE PA PACE PC pS SC SG STO(s) UDHR UN MSs UN UNDP UNPA WEU WPA WTO

Abbreviations

International organization The Interparliamentary Assembly of Member Nations of the Commonwealth of Independent States Inter-Parliamentary Union Kyrgyzstan Inquiry Commission Long-term observers Ministerial council Members of the European Parliament(s) Member(s) of Parliament Max Planck Encyclopedia of Public International Law North Atlantic Treaty Organization NATO Parliamentary Assembly Non-governmental organization(s) Office for Democratic Institutions and Human Rights of the OSCE Office of the United Nations High Commissioner for Human Rights Organization for Security and Co-operation in Europe Parliamentary Assembly of the OSCE Parliamentary Assembly of the Council of Europe Permanent Council Participating States of the OSCE United Nations Security Council Secretary general Short-term observer(s) Universal Declaration of Human Rights Member States of the United Nations United Nations United Nations Development Programme United Nations Parliamentary Assembly Western European Union World Parliamentary Assembly World Trade Organization

Chapter 1

Introduction

The power of international organizations has significantly increased over the last 30 years. The decisions made at the international level affect third parties that are not subjected to international law. Therefore, the question arises regarding the accountability of international organizations before those who are affected by international law but not subjected to it. A. Peters argues that “[a]ccountability may be realized through decision-making by majority votes and through the appointment and recall of the holders of high governing positions by the governed themselves.”1 This leads to the democratization of international organizations. The empowering or creation of international parliamentary assemblies was proposed as a strategy for democratization in the 1990s. Today, the number of international organizations that have a parliamentary assembly is not large compared to the total number of international organizations. Important organizations such as the UN and the WTO do not have a parliamentary body that represents the people of their members. The assemblies of other international organizations constitute mainly deliberative organs that are not directly elected by citizens and do not have budgetary and lawmaking powers. The ideas for establishing a new parliamentary assembly within the UN framework in order to solve the lack of democracy problem has remained for many years only an initiative, and there is not a great deal of political will for its realization. Instead, the UN chose a strategy to liaise with national parliaments through cooperation with the Inter-Parliamentary Union. The current situation shows that first, democratization of the international organizations resulted in only minor changes without significant reform, and second, success of democratization and parliamentarization highly depends on political will. However, the history of

1

Peters (2016), p. 56.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 A. Chiniaeva, Parliamentarization of International Governmental Organizations, European Union and its Neighbours in a Globalized World 2, https://doi.org/10.1007/978-3-030-71341-6_1

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1 Introduction

development of some international assemblies demonstrates that an increase in their powers is possible but demands a considerable amount of time. The process of parliamentarization of international organizations leads to the democratization of the decision-making process, that is, directly relates to changes in the laws of international organizations and creates new legislators of secondary sources of international law. This study aims to offer a general framework for a better understanding of the differences and similarities between institutional rules of intergovernmental organizations that have included parliamentary elements, and to provide an analysis of the role of various types of international parliamentary assemblies in the system of global governance, and a general understanding of the processes named “parliamentarization of international organizations.” In this work, two methods for studying international law, particularly the law of international organizations, were applied. The first method is a case study of different types of international parliamentary assemblies. During the case study, an analysis of the law of particular international organizations that include parliamentary assemblies or relate to them is provided. The second method is a comparative method. Two parliamentary assemblies of international organizations—the Parliamentary Assembly of the Organization for Security and Co-operation in Europe (OSCE PA) and the Parliamentary Assembly of the Council of Europe (PACE)—are compared in terms of structure, powers and relations with their IGOs. Also, research on activities and cooperation of assemblies will be undertaken. The aim of this research is to explore the positive effect of the work of international parliamentary assemblies and the possibility of providing an impact at the national level. The comparative method is also used to compare real and desirable powers of international assemblies. For this purpose, cases of existing international parliamentary assemblies are compared with the project of the UN Parliamentary Assembly. On the basis of this analysis of more powerful and less powerful assemblies and projects for the global (international) assembly, this work then makes a list of essential requirements and principles for the model of effective international parliamentary assembly.

1.1

Objectives and Terminology

The present work aims to fulfill the following theoretical and practical objectives: – Closely examine the parliamentary institution at the international level; – Study the influence of the process of parliamentarization of international organizations on public international law, particularly the law of international organizations; – Study the effectiveness of international parliamentary bodies;

1.1 Objectives and Terminology

3

– Identify functional problems and discover solutions proposed by different international parliamentary bodies; – Summarize requirements for a general model of the international parliamentary assembly to be functionally more effective. At the beginning of the discussion on the above-listed objectives, it is important to provide terminology that will be used during this study.

1.1.1

International Organizations

According to the definition2 provided by M. Ruffert and C. Walter, an international organization (IO) is “an association of two or more subjects of public international law based on an international treaty, that is vested with own bodies and designed to fulfil tasks of common interests.”3 This presented a summary of the main definition aspects by which the IO is characterized. In the literature, there exists general agreement that the IO as a subject of international law has to possess several characteristics. The number of elements (characters) correlate,4 but all of them include several common core aspects. The first aspect is a legal basis. The IO has to be established by an international multilateral treaty (e.g., founding treaty, charter, constitution, statute) that expresses agreement of its parties to establish an international organization. The law of treaties forms part of the law of international organizations.5 I. Seidl-Hohenveldern and G. Loibl described this aspect more broadly and noted that it is not mandatory to have a formal international treaty; it could be an international law agreement (“eine völkerrechtliche Willenseinigung” in any form) where member states clearly express their will to establish an IO and demonstrate an intention to make a binding commitment to work under international law, or where member states support the established organization by their activity in it. That can be described as an unwritten agreement between two or more states to establish an organization under international law.

A definition for the term “international organizations” has been provided in many studies. For instance: I. Seidl-Hohenveldern and G. Loibl provided eight characteristics for an organization by which it can be considered as an object of international law, and, consequently, as an international organization (Seidl-Hohenveldern and Loibl 2000, p. 5). The definition and main features of an international organization are provided also by Ruffert and Walter (2015); see also Malanczuk (1997). Encyclopedias including definitions are: Schermers and Blokker (2011), and Bindschedler (1995), which provides a general comprehensive analysis of the definition. Some definition aspects are provided in Sands and Klein (2009), and in Klabbers An Introduction to International Organizations Law (2015a). 3 Ruffert and Walter (2015), p. 5. 4 Three elements are in Schermers and Blokker (2011); eight characters can be found in SeidlHohenveldern and Loibl (2000). 5 Bindschedler (1995), pp. 1289–1309. 2

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1 Introduction

Second, the parties of the agreement, on creation of the IO, are subjects of public international law. They are recognized states or international organizations with legal personality. The number of involved states (parties) should be at least two.6 Other subjects of international law,7 such as international organizations, can be also parties to the agreement if the statutory documents of both organizations allow it.8 Third, the IO has to possess “a will of its own”9 (einen eigenen Willen) that does not necessarily coincide with the will of each of its member states.10 Hence, the IO needs to have at least one organ “with a distinct will” (volonté distincte)11 apart from any particular member state. The will is created by representatives of member states through their cooperation. It is important to specify that the will is of the separate body entitled to issue this particular decision, but not from the group of states itself. The requirement relates to the legal personality of the international organization. When the organization possesses a legal personality, it means the IO has rights and obligations under its own name. Legal personality in accordance with the “will theory” depends on its founders (states), which decide on an organization’s legal personality.12 However, not all states have clear intention concerning legal personality, consequently, not all organizations become a legal person after their establishment. The lack of legal personality affects the whole organization, including its parliamentary assembly. One of the examples is the Organization for Security and Co-operation in Europe (OSCE), which will be further discussed in Chap. 5. The fourth aspect is that the IO has to be established under international law. An agreement between two states cannot establish an IO under international law, if it is under the power of one or both national laws. This aspect excludes from the scope of the study other entities that are referred to as international organizations, such as non-governmental organizations (NGOs), or public international companies (interstate enterprises) that are usually established under the national or municipal law of particular countries.

1.1.2

Intergovernmental Organizations (IGOs)

According to Resolution 288 (X) of 27 February 1950 of the Economic and Social Council of the United Nations:

Klabbers (2015a) “An Introduction to International Organizations Law”, p. 9; Schermers and Blokker (2011), p. 39. 7 Seidl-Hohenveldern and Loibl (2000), p. 5. 8 Ruffert and Walter (2015), p. 56. 9 Schermers and Blokker (2011), p. 56. 10 Seidl-Hohenveldern and Loibl (2000), p. 5. 11 Klabbers (2015a), ibid., p. 9. 12 Klabbers (2015b), ibid., p. 46. 6

1.1 Objectives and Terminology

5

Any international organization which is not established by intergovernmental agreement shall be considered as a non-governmental organization for the purpose of these arrangements, including organizations which accept members designated by governmental authorities, provided that such membership does not interfere with the free expression of views of the organization.13

H. Schermers and N. Blokker offered two more characteristics to identify an IGO to distinguish them from supranational organizations such as the European Union (EU): – Representatives of governments exercise the decision-making power; a parliamentary assembly is an advisory body without power to take final decisions; – An intergovernmental organization is not superior to its Member States; it looks for cooperation between them. Another characteristic can be added to this list. It is the involvement of the member state governments in the work of the organization, in other words, the higher the degree of governmental involvement, the higher the possibility for the organization to be recognized as international. For instance, the Nordic Council can be classified as an international organization because of the respective governments’ active participation. In the case of the Nordic Council, the involved states demonstrate the recognition of the organization as an international one by their active cooperation with it.14 An opposite example is the OSCE, where governments are directly involved in the activity of the organization, but in the beginning refused to conclude a legally binding treaty, to prevent the foundation of an international organization in its traditional sense.15 Participating states used a politically binding agreement to establish the Conference on Security and Co-operation in Europe. (Later it was renamed an organization.) After the Cold War they demonstrated the will to conclude a statutory document that would transfer the OSCE into the category of international organizations recognized by international law. But the process of discussion of the constitutional documents’ projects by some participating States has been highly protracted, which showed an unwillingness rather than a will to conclude them. In this case, the OSCE is a victim of its participating States’ failure to reach consensus. Hence, it can be said that the OSCE is a political international organization16 established under a politically binding (soft law) agreement concluded between participating States. Thus, the OSCE is in the controversial category of international organization, as well as the category of soft law in international law.

13

Arrangements for Consultation with Non-Governmental Organizations, ECOSOC Resolution 1296 (XLIV) of 23 May 1968, para. 7. 14 Schermers and Blokker (2011), pp. 38–39. 15 Ruffert and Walter (2015), p. 5. 16 R. L. Bindschedler separated political and non-political organizations in accordance with the subject-matter they were concerned with. Political organizations deal with such matters as collective security, peace, and peaceful dispute resolutions; non-political organizations’ subject-matter relates to technical issues, for example telecommunications.

6

1 Introduction

Because of the ambiguous nature of the OSCE, its parliamentary assembly was chosen for the close study made in Chap. 5.

1.1.3

International Parliamentary Assembly

The word “parliament” originally meant “a talk” and was derived from the French parler (“to speak” or “parley”) and the Latin parliamentum. The word came to be regularly used in reference to a national assembly, beginning in the reign of Edward I of England in the thirteenth century. Generally, an international parliamentary assembly is considered an organ of an international organization composed of elected (direct representation) or nominated (indirect representation) parliamentarians from member states that act as the vox populi.17 The main common functions of all international parliamentary assemblies are deliberative and control functions. However, assemblies try to make the scope of their functions broader, and in some cases, have participation in the decision-making process and an opportunity to hold officials of the IGO formally accountable. This study provides analyses of the factual and desirable functions of the different types of parliamentary assemblies, and of successful and failed attempts, and ways to make international parliamentary assemblies stronger and more powerful.

1.2

Democratic Legitimacy of IGOs

The events of the last and current century show that there are many challenges (e.g., transnational terrorism, human trafficking, narco-trafficking, environmental problems, cybersecurity)18 that are beyond the effective capacity of the individual state. Therefore, states had to be changed (even slightly) from their original postWestphalian form, where internal sovereignty prevailed, to some international governmental actors for the purpose of maintaining peace and stability in the world. Parallel to those changes, several factors have significantly influenced the emerging right of democracy in IGOs in the twentieth century. First is the rapidly increased number of IGOs, which led to an internationalization of decision-making processes. Second is the end of the Cold War and the increased number of democratic states or those that claimed to be democratic.19 Democracy was generally accepted as the only legitimate form of domestic government.20 According to the

17

Lindemann (1997), pp. 892–898. Akinrinade (2015), p. 144. 19 Coicaud and Heiskanen (2011), p. 53; Wheatley (2010), p. 50; Stein (2001), p. 490; Krajewski (2008). 20 Falk and Strauss (2000), pp. 191–219; Fox (2008). 18

1.2 Democratic Legitimacy of IGOs

7

UN GA Resolution of September 26, 2005, the Head of UN Member States reaffirmed: Democracy is a universal value based on the freely expressed will of people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives.21

As a consequence of that general acceptance, the question arises as to why democratic institutions such as parliamentary assemblies shouldn’t be used at the international level. The absence of a parliamentary element became one of the common complaints regarding the democratization of international law, and, particularly, the international law-making process. J. Alvarez noted that “international law-makers lack the ties to democratically elected polities that legitimize law within democracies.”22 This issue relates directly to the question of the democratic legitimacy23 of international organizations. E. Stein wrote that “the IGOs themselves are considered ‘undemocratic’ since they operate with little transparency or public and parliamentary scrutiny.”24 The debates and discussions on the issue of enhancing the democratic legitimation25 of international organizations create different proposals of ways to do so. Establishment of parliamentary-type institutions and bodies was one of “the mechanism[s] for the democratization of global politics.”26 Moreover, R. Dahl, who was generally critical regarding the effective democratization of IOs, considering them “bureaucratic bargaining systems,” argued that in order for citizens to be informed, political and communication elites would need to engage in public debate and discussion of the alternatives in ways that would engage the attention and emotions of the public: “[Therefore] it would be necessary to create an international

21

A/RES/60, Resolution adopted by the General Assembly on 16 September 2005, World Summit Outcome, para. 135. 22 J. Alvarez proposed three types of complaints regarding the democratic deficit: vertical, horizontal and ideological in Alvarez (2007), pp. 159–174. This typology was studied more precisely in Wheatley (2010). 23 P. Nanz and J. Steffek argued that “the idea of democratic legitimacy is that the citizens decide for themselves the content of the laws that organize and regulate their political association. Separating the process of rule-making from politically accountable institutions, global governance is argued to suffer a massive ‘democratic deficit.’” More precisely is in Nanz and Steffek (2017), pp. 314–335. 24 Stein (2001), pp. 489–534. 25 D. Zaum provided the following description of legitimacy and legitimation: “An institution is legitimate if its power is justified in terms of moral and other social embedded beliefs, and if those subject to its rule recognize that it should be obeyed.” According to the author, the “legitimacy encompasses the social practice of legitimation: it needs to be claimed, sustained, and recognized.” See Zaum (2013), pp. 3–25. 26 Wheatley (2010), p. 65; E. Stein wrote that “in organizations at higher levels of integration, a standing consultative body composed of members of national parliaments might be established to assure greater accountability.” See Stein (2001), p. 532.

8

1 Introduction

equivalent to national political competition by parties and individuals seeking office.”27 Under pressure from critics regarding the lack of democracy (a democratic deficit),28 some IGOs started to involve parliamentary elements in their activity through cooperation with parliamentary associations such as the Inter-Parliamentary Union (IPU) (e.g., the UN, WTO); others included a parliamentary body in the institutional framework (e.g., the OSCE) or allowed already existing assemblies to obtain more powers (e.g., the Council of Europe (CoE)). The process of international parliamentarianism corresponds to “an idea of increasingly present and deeper democracy” at the international level; however, most of the current international parliamentary assemblies do not possess formal control and decision-making powers and do not repeat the national models of parliaments.29 A. Peters argued that international parliamentary assemblies cannot provide effective political oversight. The author studied the existing models of parliamentary assemblies and concluded that they could not directly influence the organizations’ decision-making process and therefore could not make “a tangible democratic output.” However, she supported the idea that powerful and significant IOs should go through the process of parliamentarization. She mentioned that this process is important for a rise of transparency in IOs, public scrutiny, and “promoting political dialog at the level of parliaments, political parties and civil society.”30 M. Krajewski considers international parliamentary assemblies that participate in decision-making process and possess control over the executive as the most advanced form of parliamentary participation in IGOs; the international parliamentary body is able to address the lack of democratic legitimacy at international level if it has real parliamentary powers and is generally elected.31 The European Parliament (EP) is the only example of a supranational parliamentary body that has got legislative and control powers. The model of the EP will be studied further in Chap. 3. The EP model became the basis for some theoretical proposals for international parliamentary bodies. (The Strauss-Falk proposal is studied in Sect. 8.2.) Another idea for enhancing democratic legitimacy was the proposed reform of the UN’s structure and the creation of a UN Parliamentary Assembly (UNPA). (The UNPA project will be discussed in Sect. 8.1.) The 2005 World Summit underlined “the central role of the United Nations” and pledged “to enhance the relevance, effectiveness, efficiency, accountability and credibility of the United Nations system.” T. Giegerich grouped these five attributes under the common term of “legitimacy,” “with its three aspects of input, output and social legitimacy, pertaining to

27

Dahl (1999), pp. 19–36. For instance, see Nanz and Steffek (2017), pp. 314–335. 29 de Puig (2008), p. 22. 30 Klabbers et al. (2009), p. 324. 31 Krajewski (2008). 28

References

9

the respective governmental body’s authority, performance and closeness to the citizens.”32 The normative approach to legitimacy includes input legitimacy (procedural aspects of how rules are created) and output legitimacy (the substantive results of the rule-making). Input legitimacy includes democratic legitimacy.33 T. Giegerich considers the fact that legitimation theories were developed with a view to sovereign States and that this does not mean they are “necessarily Statebound: they can and must be applied mutatis mutandis wherever governmental power is exercised, including at the international level.”34 The process of parliamentarization of international organizations is one of the ways to enhance democratic legitimacy. It provides changes for the policy-making process in IGOs. Consequently, parliamentarization of IGOs leads to the democratization of international law-making. If an international parliamentary assembly obtains powers inherent to national parliaments, it means also that a new type of legislator appears in international law. As a consequence, the decision-making process becomes more deliberative, happening through the exchange of arguments which aim at a consensus. Currently, the decision-making process that prevails is based on the exchange of commitments, aiming at a consensus that benefits all member states (bargaining), almost excluding interests of other groups besides the interests of governments.35 As was mentioned above, some IGOs include parliamentary elements or have improved already existing assemblies to enhance their democratic legitimacy. The inclusion is implemented through different ways that create different types of international assemblies, as discussed in the next chapter.

References Books, Book Chapters, Articles, Studies, Papers Akinrinade B (2015) Democratizing international law-making. In: Jalloh C, Elias O (eds) Shielding humanity, essays in international law in Honor of Judge Abdul G. Koroma. Brill, Nijhoff, p 144 ff Alvarez J (2007) Introducing the themes. Victoria Univ Wellington Law Rev 38(2):159–174 Bindschedler RL (1995) International Organizations, general aspects. In: Encyclopedia of public international law 2. North-Holland Publications, Amsterdam, p 1289 ff Dahl RA (1999) Can international organizations be democratic? A skeptic’s view. In: HackerCordón C (ed) Democracy’s edges (Contemporary political theory), Shapiro I. Cambridge

32

Giegerich (2005), p. 29. Krajewski (2008). 34 Giegerich (2005). 35 Krajewski (2008). 33

10

1 Introduction

University Press, Cambridge, p 19 ff. https://doi.org/10.1017/CBO9780511586361.003. Accessed 03 Aug 2018 de Puig LM (2008) International parliaments. Council of Europe, Strasbourg Falk R, Strauss AL (2000) On the creation of a global peoples assembly: legitimacy and the power of popular sovereignty. Stanf J Int Law 36(2):191 ff. https://ssrn.com/abstract¼1130378. Accessed 01 Aug 2018 Fox G (2008) Democracy, right to, international protection. MPEPIL. https://opil.ouplaw.com/ view/10.1093/law:epil/9780199231690/law-9780199231690-e773?prd¼EPIL. Accessed 05 Aug 2018 Giegerich T (2005) “A Fork in the Road” – constitutional challenges, chances and Lacunae of UN reform. German Yearb Int Law 48:29 ff Klabbers J (2015a) An introduction to International Organizations Law. Cambridge University Press, Cambridge Klabbers J (2015b) Straddling the fence: the EU and international law. In: Arnull A, Chalmers D (eds) The Oxford handbook of European Union Law. Oxford University Press, Oxford, p 52 ff Klabbers J, Peters A, Ulfstein G (2009) The Constitutionalization of International Law. Oxford Univesity Press, Oxford Krajewski M (2008) International organizations or institutions, democratic legitimacy. MPEPIL. http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e495. Accessed 01 Aug 2018 Lindemann H-H (1997) Parliamentary assembly, International. In: Encyclopedia of Public International Law 3 (EPIL), p 892 ff Malanczuk P (1997) Akehurst’s Modern introduction to international law. Routledge, London Nanz P, Steffek J (2017) Global governance, participation and the public sphere. Govern Opposition 39(2):314 ff. https://doi.org/10.1111/j.1477-7053.2004.00125.x. Accessed 05 Dec 2017 Peters A (2016) International organizations and international law. In: Cogan JK, Hurd I, Johnstone I (eds) The Oxford Handbook of International Organizations. Oxford University Press, Oxford. https://doi.org/10.1093/law/9780199672202.003.0002 Ruffert M, Walter C (2015) Institutionalised international law. C.H. Beck/Hart/Nomos, Munich Sands P, Klein P (2009) Bowett’s law of international institutions. Sweet & Maxwell, London Schermers HG, Blokker NM (2011) International institutional law: unity within diversity. Brill, Nijhoff, Leiden Seidl-Hohenveldern I, Loibl G (2000) Das Recht der Internationalen Organisationen einschließlich der Supranationalen Gemeinschaften. Carl Heymanns Verlag KG, Köln Stein E (2001) International integration and democracy: no love at first sight. Am J Int Law 95 (3):489 ff Wheatley SC (2010) The democratic legitimacy of international law. Hart Publishing, Oxford Zaum D (2013) International organizations, legitimacy, and legitimation. In: Zaum D (ed) Legitimating international organizations. Oxford University Press, Oxford, p 3 ff

Chapter 2

Characterization of International Parliamentary Bodies

International parliamentary institutions can be divided by the following characteristics.

2.1

Geographical Distribution

These categories include parliamentary assemblies that act at a worldwide (global), regional or sub-regional level.1 The Inter-Parliamentary Union (IPU) is the single inter-parliamentary organization acting at the world (global) level. It has gathered national-parliamentarians from the national parliaments of 178 countries. The IPU parliamentarians create an independent form of international cooperation.2 S. Marschall proposed the category of “intercontinental parliamentary assembly” for the IPU.3 The regional parliamentary assemblies bring together parliamentarians from particular geographical regions. For instance, the Parliamentary Assembly of the Council of Europe (PACE) represents the first regional (European) international parliamentary assembly; one of the purposes in creating the Council of Europe (CoE) was to bring European states into closer cooperation.4 Thus, all members of this assembly are representatives of European states. Another example is the Interparliamentary Assembly of the Commonwealth of Independent States (CIS) that combines parliamentarians from the former Soviet

1 It should be noted that a sub-region is a part a large region, for instance Northern Europe is a sub-region of Europe. 2 Arndt (2013). 3 Marschall (2007), p. 4. 4 Statute of the Council of Europe, Preamble.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 A. Chiniaeva, Parliamentarization of International Governmental Organizations, European Union and its Neighbours in a Globalized World 2, https://doi.org/10.1007/978-3-030-71341-6_2

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Union region. The legal basis for this Assembly is the CIS-Statute.5 According to Article 36 of the Statute, the task of the Assembly is to conduct inter-parliamentary consultations, to discuss issues of cooperation within the CIS framework and to work out suggestions for the activities of national parliaments. In 1948, Belgium, France, Luxemburg, the Netherlands and the United Kingdom signed the Brussels Treaty and established the Brussels Treaty Organization. It was a response to the USSR’s move to impose control over Eastern Europe. The Western European Union (WEU) was established in 1954 as a result of the modification of the Brussels Treaty. In 1954, the Federal Republic of Germany and Italy joined the WEU. According to Article IX of the Modified Brussels Treaty, the Assembly of the WEU was composed of representatives of the Treaty powers to the CoE. In the first decade of the 2000s, the Assembly was transferred to the EU and became an interparliamentary forum for the European Security and Defense Policy. The assembly was dissolved when the Modified Brussels Treaty was terminated in 2011.6 Another example of a regional or sub-regional assembly is the Nordic Council. The Council is a cooperative between the parliaments, governments, and administrative agencies of the European Nordic States: Denmark, Finland, Iceland, Norway, Sweden, the Aaland Islands, Faroe Islands and Greenland.7 The Helsinki Treaty forms the main legal basis for Nordic cooperation. In 1971 the Treaty was revised and the Statute of the Nordic Council became its integral part. The deliberative competence of the Nordic council is not limited to the cooperation area; it also includes security issues that are outside of the governmental cooperation parts of the Treaty.8 Often the Parliamentary Assembly of the OSCE (OSCE PA) is classified as a regional or sub-regional international assembly. However, this is not quite the case; the OSCE PA gathers parliamentarians from “Vancouver to Vladivostok.” Parliamentarians from different parts of the world: North America, Central Asia, and Europe, represent their parliaments. At the same time, membership is not broad enough to consider this assembly a worldwide one. It is easier to consider this assembly under the next characteristic in the following section.

2.2

Degree of Affiliation with the IGO

There are two categories of degree of affiliation of the parliamentary assembly with the IGO:

5

Statute of CIS, Minsk, 22 January 1993. Arndt (2013). 7 Walter (1997), p. 988. 8 Cameron (2009). 6

2.2 Degree of Affiliation with the IGO

2.2.1

13

Parliamentary Assemblies with Formal Status Within the IGO

Formal affiliation means that the assembly is an integral part of the IGO according to statutory documents (e.g., a statute, treaty, constitution). For instance, Article 10 of the Statute of the CoE9 states that PACE (the former Consultative Assembly) is an organ of the CoE. The Consultative Interparliamentary Council (BENELUX Parliament) is specified as an institution of the BENELUX Economic Union under Article 5 of the Treaty10 establishing the organization. In 1962 the above-mentioned Helsinki Treaty (Treaty of Co-operation between Denmark, Finland, Iceland, Norway and Sweden) was signed, and the Nordic Council11 became treaty-based and from a legal point of view became one of the bodies for Nordic cooperation.12 The establishment of latter two assemblies was inspired by the experience with PACE, the first assembly of an international organization in Europe.13

2.2.2

Parliamentary Assemblies with Informal Status Within the IGO

This category is divided into sub-categories, depending on the ways the parliamentary assembly is affiliated: • Through an inter-parliamentary agreement:14 Members of parliaments from the member states of the North Atlantic Treaty Organization (NATO) and the European Free Trade Association (EFTA) have established international assemblies. The difference is that these parliamentary bodies are not formally integral parts of their parent organizations.15 Usually this has happened when governments have not endorsed the idea of a parliamentary assembly that would be integrated into the governmental part of organization, but

9

Statute of the Council of Europe, European Treaty Series - No. 1, London, 5 May 1949. Révision portant sur le traité de 1958, available at: http://www.benelux.int/files/3914/0067/7093/ trait_Benelux_17.06.2008Ondertekend.pdf (16.04.2018). 11 According to Schermers and Blokker (2011) the Nordic Council can be considered “partly a parliamentary organization,” because it consists of members that were elected by and from national parliaments and from representatives of the governments. 12 Article 35 of the Helsinki Treaty No 6262. (Agreement between Finland, Denmark, Iceland, Norway and Sweden Concerning Co-operation). 13 Schermers and Blokker (2011), p. 414. 14 Schermers and Blokker (2011). 15 ‘Parent organization’ means here an IGO, in frameworks of which an international parliamentary assembly operates. 10

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2 Characterization of International Parliamentary Bodies

instead have favored the creation of national parliamentary associations outside the formal (constitutional) system. For instance, NATO was established under the Washington Treaty in 1949. The text did not include provisions for a parliamentary body. In 1954, the Canadian NATO Parliamentary Association was founded. The association is the one which drew up the resolution that proposed that the NATO nations form national NATO parliamentary associations that would meet annually and coordinate their activities through a NATO inter-parliamentary association, which would have a Paris-based16 headquarters and secretariat. Later, the resolution became one of key items on the agenda of the future NATO Parliamentarians’ Conference. The first conference of members of parliament from the NATO nations took place in 1955. One day before the conference, the Steering Committee, consisting of one representative from each delegation, completed the agenda and established the rules of procedure.17 Today the North Atlantic Assembly still does not possess any formal status, consequently, it does not participate in legal and decision-making processes within the NATO framework, despite the fact that in the 1990s the NATO Parliamentary Assembly played a role in facilitating the enlargement process of the organization, and governments recognized the Assembly’s contributions.18 The European Free Trade Association is an intergovernmental organization aimed at promoting the strengthening of trade and economic relations among its contracting parties: Iceland, Liechtenstein, Norway, and Switzerland.19 The European Economic Area (EEA) is a highly developed free trade are comprising the current 27 Member States of the European Union and three of the four members of the EFTA.20 The EFTA serves as a facilitator for the EEA, established between Iceland, Liechtenstein, and Norway and the European (Economic) Community (EEC) and its member states. Already in 1963, informal discussions about issues regarding the EFTA began among parliamentarians of the member states. In 1977, the Committee of Ministers was founded, and since 1981, it has held regular meetings with members of the EP. These relations were institutionalized through the establishment of the EEA Joint Parliamentary Committee (EEA JPC) when the EEA Agreement entered into force in 1994. It includes an equal number of members of the EP and members of parliaments of the EFTA states. According to Article 95 of the EEA Agreement, the EEA JPC contributes, through dialogue and debate, to a better understanding between the EEC and the EFTA states in the fields covered by 16 France’s withdrawal from NATO’s military structure occurred in 1966, thus the NATO moved the headquarters from Paris to Brussels. In 1968, the Assembly headquarters moved to Brussels. 17 Hobbs (2005), pp. 31–43. 18 Marauhn (2016). 19 Harpaz (2009). 20 The European Economic Area (EEA) Agreement was signed on 2 May 1992 (entered into force on 1 January 1994). The EFTA-EEA States are closely involved in monitoring the EEA Agreement. Article 95 of the agreement establishes an EEA Joint Parliamentary Committee (EEA JPC). Switzerland is the fourth Member of the EFTA that has observer status in the EEA JPC. Iceland, Liechtenstein and Norway are full Members of this Committee.

2.3 Supranational Parliamentary Institutions

15

this agreement. From the legal point of view, the Committee does not play a role in the decision-making process of the EEA. It facilitates the inter-parliamentary dialogue between the members of the EP and the EFTA member states. Another example is the OSCE. This Parliamentary Assembly is the youngest of the parliamentary assemblies in Europe. It was developed right after the Cold War when post-Soviet Union governments were opened to democratization and constructive dialogue and cooperation. As well as the NATO Parliamentary Assembly, the OSCE Parliamentary Assembly has tried to get formal status within the OSCE and become involved in the decision-making process. The uniqueness of the situation is that while the Assembly tries to be formally recognized by the organization, the organization itself does not possess the status of an IO from the international law point of view. The OSCE PA’s case will be considered in depth below. • Through the assistance of the IGO: The above-mentioned IPU is a good example of cooperation between a parliamentary association and an intergovernmental organization. The IPU works closely with the UN, however, it does not desire legal or decision-making powers within the UN or any other intergovernmental organization.21 It can be said that the UN, through the assistance of the IPU, provides itself with the parliamentary dimension without significant legal obligations. The cooperation between the UN and the IPU, as well as questions about a parliamentary assembly of the UN and the idea of a global parliament are highly disputed and of interest for further scrutiny, as will be carried out below.

2.3

Supranational Parliamentary Institutions

In comparison with the above-mentioned international parliamentary assemblies, the EP enjoys a high level of legitimation.22 Its exceptional characteristics and legal nature set the EP apart from the other assemblies. The first and most important characteristic is the organization to which the EP belongs. The European Union is an association of European states that has established a variety of common institutions and that possesses the competence to adopt not only legal acts binding upon Member States but also acts that have a direct effect within the domestic legal system.23 The European Court of Justice (ECJ) has established that EU law has primacy over domestic (national) law.24 Thus, the EU is not an international intergovernmental organization in its traditional meaning.

21

Arndt (2013). Ruffert and Walter (2015), p. 143. 23 Shaw (2017), p. 192. 24 See Case 26/62 Van Gend & Loos v Netherlands Internal Revenue Administration; Case 6/64 Costa v ENEL. 22

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2 Characterization of International Parliamentary Bodies

J. Klabbers writes that the “EU’s judicial history demonstrates a marked ambivalence toward international law.” On one hand, the EU is built under international legal instruments—the treaties.25 On the other hand, “the structure refuses to think of itself in terms of international law.”26 Usually the EU refers to itself as a supranational organization. The term “supranational” was used in Article 9 of the ECSC Treaty (the Treaty of Paris), according to which “The members of the High Authority [. . .] will abstain from all conduct incompatible with the supranational character of their functions.” H. Wagner considers that the term “supranational” was used in this case by founders for purpose to avoid a controversial expression like “federal.”27 F. Capotorti states that “the criterion for distinguishing such a category [supranational] is essentially functional: that is to say, it is on the basis of the principal functions with which the ECSC is entrusted (the exercise of powers withdrawn from the sovereignty of the member states) that it was defined as supranational rather than international.”28 Scholars have provided a number of aspects to distinguish supranational organizations from IGOs. H. Schemers and M. Blokker listed fundamental characteristics of intergovernmental and supranational organizations and demonstrated that the EU possesses more supranational characteristics than international intergovernmental characteristics. The authors maintain that F. Capotorti considered that the main criterion for this distinction were the functions with which the international organization was entrusted (“the exercise of powers withdrawn from the sovereignty of the member states”).29 For supranational organizations, the decision-making process should not entirely depend on the cooperation of all member states. The supranational organization may adopt the legally binding decision by majority vote, and member states which voted against would be bound “against” their will by this decision. For instance, under Article 294 of the TFEU (Treaty on the Functioning of the European Union) the European Parliament decides by majority vote. Unless indicated otherwise, the Council decides by qualified majority vote (Art. 16 (3) of the Treaty on European Union). For IGOs, as was mentioned above, the cooperation between member states is curtailed for the unanimity and consensus in making decision. Moreover, an IGO’s decision usually must be ratified by the member states to involve or be enforceable by a national legal system (no direct effect).

P. L. Lindseth called the European Treaties “enabling legislation.” He concluded that the Treaties were signed under international public law thus the European government is “an international phenomenon.” However, concurrently, the Treaties are a “mechanism to delegate regulatory power akin to a loi-cadre on the national level.” See Lindseth (2016), p. 162. 26 Klabbers (2015b), “Straddling the Fence: The EU and International Law”, p. 62. 27 Schermers and Blokker (2011). 28 Capotorti (2000), pp. 738–739. 29 Schermers and Blokker (2011), pp. 56–57. 25

2.3 Supranational Parliamentary Institutions

17

The supranational organization is empowered to make rules that have direct effect on national law, and citizens and residents of the member states. For example, citizens of the EU may invoke much of the EU law against their governments or even in relation to private matters because of the direct effect of the EU law, as happened when the Dutch transport company Van Gend & Loos filed a case against the customs authorities of the Netherlands. The company considered that the authorities had infringed Article 12 of the EEC Treaty30 that prohibited the introduction of new import duties or any increase in existing customs duties between the Member States. The ECJ ruled in the Van Gend & Loos case that: [the EEC] Treaty is more than an agreement which merely creates mutual obligations between the contracting States. This view is confirmed by the preamble to the Treaty which refers not only to governments but to peoples. It is also confirmed more specifically by the establishment of institutions endowed with sovereign rights, the exercise of which affects Member States and also their citizens [. . .]. The conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals.31

Later, in Costa v ENEL, the ECJ established the supremacy of European law over the law of the member states (including over member states’ constitutions).32 A. Menon and S. Weatherill consider that the EU is a Union where Member States “self-consciously took the decision to create institutions constitutionally separated from national legitimation processes.”33 P. Lindseth, as well as F. Capotorti, refer to the significant scope of autonomous regulatory power that the EU enjoys as a key aspect for distinguishing an international organization from a supranational one.34 Thus, based on the above arguments, the EP will be considered as a parliamentary institution of a supranational organization in this thesis, keeping in mind that dividing international intergovernmental organizations and supranational ones is nominative and the borders between them in many cases are fuzzy. The next unique feature relates to the question of whether the EP can be considered an international parliamentary assembly. The EP can be considered as a sophisticated form of an international parliamentary assembly. The EP has been studied as such in the literature.35 For instance, A. Cofelice and S. Stavridis thought that the EP should be considered “as an extreme value on a variable that can be labelled as ‘parliamentary powers.’”36 According to this position, it can be said that 30

Article 12 of the Treaty of Rome (EEC Treaty) was replaced by Article 30 TFEU. Judgment of the Court of 5 February 1963.—NV Algemene Transport—en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration. Case 26-62. 32 Judgment of the Court of 15 July 1964.—Flaminio Costa v E.N.E.L Case 6/64. 33 Menon and Weatherill (2007), p. 7. 34 Lindseth (2016), p. 152. 35 For example: Ruffert and Walter (2015); Schermers and Blokker (2011); Lindemann (1997), pp. 892–898. 36 Cofelice and Stavridis (2014), pp. 145–178. 31

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2 Characterization of International Parliamentary Bodies

the EP is the most powerful international parliamentary institution, and has become empowered, through its history and legal evaluation, by particular conditions that could be theoretically applicable for other international parliamentary assemblies. The EP could also be considered as a supranational parliament.37 This approach distinguishes supranational from international parliamentary assemblies. The main distinction between international parliamentary assemblies and supranational ones is the source of their legitimacy. The citizens of the EU provide legitimacy to the EP through direct universal suffrage under Article 14 of the TEU, and Articles 20, 22 and 223 of the TFEU. The citizens of the Member States vote at their place of residence, irrespective of their nationality, according to Article 20.2 (b) of the TFEU. Based on this, the concept of a European citizenship overarching national citizenship was developed.38 Moreover, undoubtedly, EU citizenship assumes having the nationality of a Member State under Article 20.1 of the TFEU. However, “it is also a legal and political concept independent of that of nationality.”39 There is another aspect pointing out the EP as a supranational parliament, in that it possesses substantial powers to take part in the decision-making process of the EU (as will be discussed in the next chapter). One common characteristic that can be noted regarding all of the assemblies mentioned above is their hope to become a “parliament” and to obtain the powers usually bestowed on such institutions.40 Name changes and the addition of “parliamentary” or “parliament,” as well as evaluation of some of these assemblies has demonstrated this desire. The EP already has this status. The aim of the following chapter is to consider the EP as a supranational parliamentary assembly and demonstrate a contrast between the EP and international parliamentary institutions.

References Books, Book Chapters, Articles, Studies, Papers Arndt F (2013) Parliamentary assemblies, International. MPEPIL. http://opil.ouplaw.com/view/10. 1093/law:epil/9780199231690/law-9780199231690-e525. Accessed 03 Aug 2018 Cameron I (2009) Nordic Council. MPEPIL. http://opil.ouplaw.com/abstract/10.1093/law:epil/ 9780199231690/law-9780199231690-e660?rskey¼stYbOp&result¼140&prd¼EPIL. Accessed 03 Aug 2018 Capotorti F (2000) Supranational organizations. In: Bernhardt R (ed) EPIL 4. North-Holland, Amsterdam

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Arndt (2013). The deep analysis of the connections and differences between nationality and citizenship was made by Closa (1995), pp. 487–518. 39 Opinion of Advocate General Poiares Maduro delivered on 30 September 2009. Case C-135/08 Janko Rottman v Freistaat Bayern, European Court Reports 2010 I-01449, para. 23. 40 Schermers and Blokker (2011), pp. 415–416. 38

References

19

Closa C (1995) Citizenship of the Union and nationality of the member states. Common Market Law Rev 32:487 ff, Kluwer Academic Publishers Cofelice A, Stavridis S (2014) The European Parliament as an International Parliamentary Institution (IPI). Eur Foreign Aff Rev 19(2):145 ff, Kluwer Law International Harpaz G (2009) European Free Trade Association (EFTA). MPEPIL. http://opil.ouplaw.com/ view/10.1093/law:epil/9780199231690/law-9780199231690-e633. Accessed 03 Aug 2018 Hobbs D (2005) The assembly from 1955 to 1989. In: NATO Parliamentary Assembly 1955–2005: 50 years of parliamentary diplomacy. NATO Parliamentary Assembly, Brussels, p 31 ff Klabbers J (2015b) Straddling the fence: the EU and international law. In: Arnull A, Chalmers D (eds) The Oxford handbook of European Union Law. Oxford University Press, Oxford, p 52 ff Lindemann H-H (1997) Parliamentary assembly, International. In: Encyclopedia of Public International Law 3 (EPIL), p 892 ff Lindseth PL (2016) Supranational organizations. In: Cogan JK, Hurd I, Johnstone I (eds) The Oxford handbook of the International Organizations. Oxford University Press, Oxford, p 152 ff Marauhn T (2016) North Atlantic Treaty Organization. MPEPIL. http://opil.ouplaw.com/view/10. 1093/law:epil/9780199231690/law-9780199231690-e662. Accessed 03 Aug 2018 Marschall S (2007) European parliaments in transnational organisations: Parliamentary Cooperation beyond the European Union. Conference “Fifty Years of Interparliamentary Cooperation”, 2007, Berlin, p 4 ff Menon A, Weatherill S (2007) Democratic politics in a globalising World: supranationalism and legitimacy in the European Union. LSE Law, Society and Economy Working Papers 13/2007. http://www.lse.ac.uk/collections/law/wps/wps.htm. Accessed 06 Aug 2018 Ruffert M, Walter C (2015) Institutionalised international law. C.H. Beck/Hart/Nomos, Munich Schermers HG, Blokker NM (2011) International institutional law: unity within diversity. Brill, Nijhoff, Leiden Shaw MN (2017) International law. Cambridge University Press, Cambridge Walter C (1997) Addendum 1996, parliamentary assemblies, international. In: Encyclopedia of public international law 3. Elsevier, Amsterdam, p 988 ff

Chapter 3

The European Parliament

The EP is a rare example of the parliamentary assembly of an international organization that has fought for its power and won. The EP went through certain milestones before the Lisbon Treaty,1 as seen below in Table 3.1, which provided the Assembly with full “co-legislative” powers in virtually all areas of the EU legislative activity, the right to elect the President of the European Commission, and an equal say with the Council as regards the entire EU budget, as well as other enhanced powers.

3.1

Composition

The main legal bases regarding organizational and operational issues are Article 14 of the TEU, Articles 223, 224, 226, 231 and 232 of the TFEU, and the Rules of Procedure. According to Article 14 of the TEU, the total number of representatives of the EU states directly elected for a term of 5 years may not exceed 750 members, plus the President. In 2013, the EP put forward a proposal about its composition with a view to the 2014 elections.2 The European Council supported this proposal and adopted Decision 2013/312/EU on establishing the composition of the European Parliament.3 According to Article 3 of the European Council’s Decision 2018/937 of 28 June 2018, the EP consists of 751 members, distributed among the EU Member States as follows: Germany—ninety-six; France—seventy-nine; Italy—seventy-six; Spain— 1

See also R. Corbett, F. Jacobs, and D. Neville, pp. 4–9. European Parliament Resolution of 7 February 2018 on the composition of the European Parliament (2017/2054(INL) — 2017/0900(NLE)). 3 European Council Decision (EU) 2018/937 of 28 June 2018 establishing the composition of the European Parliament. 2

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 A. Chiniaeva, Parliamentarization of International Governmental Organizations, European Union and its Neighbours in a Globalized World 2, https://doi.org/10.1007/978-3-030-71341-6_3

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3 The European Parliament

Table 3.1 List of milestones in development of powers of the European Parliament Year 1970, 1975

Milestone Budget Treaties

1975

Conciliation procedurea

1976

1979 1980

Act concerning the election of the representatives of the assembly by direct universal suffrageb Universal suffrage of EP Isoglucose case, judgment of the ECJc

1987

Single European Act

1993

Maastricht Treaty (Treaty on European Union)f

Powers achieved The EP received “budgetary powers” to amend the budget and to take a final vote on its adoption. In the case of disputable matters regarding legislation with budgetary consequences, they have to be referred to a Conciliation Committee composed of the members of Council and representatives of the EP Council introduced direct elections of the EP. The EP received full-time parliamentarians The ECJ recognized an indispensable role of the Parliament in the legislative process of the Community. The EP got de facto delaying power, which it could use to bargain for amendments (see pp. 33–34). Two new procedures for the adoption of Community Acts: (1) Cooperation procedure: Council has to refer its position to the EP, which has three months to approve it, reject it or press for amendments.d (2) Assent procedure: The EP received equal rights with the Council in requiring approval of the Parliament as well as of the Council for the ratification of accession treaties and association agreements.reject it or press for amendmentse The new co-decision procedureg was introduced for treaty articles, whereby text would need the approval of both Council and Parliament. The cooperation procedureh was extended to areas where Council acted by qualified majority. The assent procedurei was extended to a wide category of international agreements. It applied to the areas where the Council acted by unanimous decision. The EP received the right to vote on the nominations for the President of the Commission,j to be consulted regarding the nomination President of the European Monetary Institute (Central Bank),k and to appoint an Ombudsman.l The EP got the right of legislative initiative that was limited to asking the Commission (continued)

3.1 Composition

23

Table 3.1 (continued) Year

Milestone

1999

Treaty of Amsterdam

2003

Treaty of Nice

2006

Comitology Decisionq

2009s

Treaty of Lisbon (TFEU)

Powers achieved to put forward a proposal.m The term of office of the Commission became five years to match the term of the EP.n The provision for parliamentary committees of inquiry also enhanced the power of the EP.o The scope of co-decision was extended. It covered almost all non-agricultural legislation. The scope of co-decision procedure was extended; the EP got the right to take other institutions to the ECJ.p A new regulatory procedure with scrutiny was introduced.r This met a long-standing request by Parliament to improve its rights to monitor the implementation of legislative acts adopted under the codecision procedure. Parliament gained an effective right to block draft implementing measures in cases where it did not agree with the substance (veto certain categories of the Commission’s decisions). The EP received the rights to elect the President of the Commission.t The co-decision procedure was turned into the ordinary legislative procedure.u The assent procedure was extended and it was renamed as the consent procedure.v The new budgetary procedure required the approval of all expenditure by the council and the EP.w The EP received the right to revoke any delegation of legislative powers to the Commission.x The EP received a formal right to propose treaty revisions via changes prepared for an intergovernmental conference by a convention involving the EP and national representatives.y

a Joint Declaration of the European Parliament, the Council and the Commission Concerning the Institution of a Conciliation Procedure between the European Parliament and the Council, Official Journal C 089, 22/04/1975, p. 0001–0002 b Official Journal L 278, 08/10/1976, p. 0005–0011 c Judgment of the Court of 29 October 1980. - SA Roquette Frères v Council of the European Communities. - Isoglucose - Production quotas. - Case 138/79. Para. 33: The consultation provided for in the third subparagraph of Article 43 (2), as in other similar provisions of the [EEC] treaty, is the means which allows the parliament to play an actual (continued)

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3 The European Parliament

Table 3.1 (continued) part in the legislative process of the community, such power represents an essential factor in the institutional balance intended by the treaty. Although limited, it reflects at community level the fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly. Due consultation of the parliament in the cases provided for by the treaty therefore constitutes an essential formality disregard of which means that the measure concerned is void d Its applicability was limited to cases in which the Council acted by qualified majority, with the exception of environmental matters. Hence the procedure was applied only to ten Treaty Articles e Its applicability was limited to cases in which the Council acted by qualified majority, with the exception of environmental matters. Hence the procedure was applied only to ten Treaty Articles f The text of the Treaty available at: https://europa.eu/european-union/sites/europaeu/files/docs/ body/treaty_on_european_union_en.pdf (30.10.2017) g Now the procedure is enshrined under Article 294 TFEU. Initially the procedure was introduced in the Title II (61) of the Treaty on European Union (TEU). According to this provision, Article 189b, where the procedure for the adoption of acts is described, shall be inserted. According to this Article, the Council and Parliament approve the act with up to three readings in each institution and a conciliation committee to negotiate a compromise if no agreement is reach after two readings h Article 252 EC was abolished after the entry into force of the Treaty of Lisbon (1.1.5). Initially the procedure was included in Title II (61) of the TEU. According to this provision, Article 189(lit.c), where the procedure for the adoption of acts is described, shall be inserted i Title II (41) of the TEU inserted Article l38b that stated, “In so far as provided in this Treaty, the European Parliament shall participate in the process leading up to the adoption of Community acts by exercising its powers under the procedures laid down in Articles 189b and I89c and by giving its assent or delivering advisory opinions” j Under Title II (48) of the TEU, Article 158 was inserted. According to the new provision, “members of the Commission shall be appointed, in accordance with the procedure referred to in para. 2, for a period of five years” k Article 9.3 of the Protocol on the Statute of the European Monetary Institute to TEU; also, Article 109(f) of the TEU l Article 138(e) was inserted under the Title II (41) of TEU m This right is considered to be an “indirect” right. According to Article 138(b), inserted by Title II (41) of the TEU, “The European Parliament may, acting by a majority of its members, request the Commission to submit any appropriate proposal on matters on which it considers that a Community act is required for the purpose of implementing this Treaty.” The provision remained in the Lisbon Treaty under Article 225 TFEU n According to the new provision, Article 158, para. 1, “members of the Commission shall be appointed, in accordance with the procedure referred to in para. 2, for a period of five years.” o Article 138(c) was inserted under the Title II (41) of TEU p Article 263 TFEU supported the ECJ’ rulings in Cases 320/81 (Judgment of 7 March 1990, Acerbis and others v Commission); Case 294/83 (Judgment of the Court of 23 April 1986, Parti écologiste “Les Verts” v European Parliament); Case 70/88 (Judgment of the Court of 22 May 1990, European Parliament v Council of the European Communities. Capacity of the European Parliament to bring an action for annulment) q 2006/512/EC, Council Decision of 17 July 2006 amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission (The Council Comitology Decision r Article 5(a) of the Council Comitology Decision s The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (TEU), signed at Lisbon on 13 December 2007, entered into force on 1 December 2009 (continued)

3.1 Composition

25

Table 3.1 (continued) t

Article 17(7) TEU. According to the article, the European Council shall propose to the European Parliament a candidate for President of the Commission bearing in mind the results of the European elections u Article 14 TEU, Articles 289 and 294 TFEU. The Lisbon Treaty made co-decision the general rule for passing legislation at the EU level, covering the vast majority of areas of EU activity v Article 289(2) TFEU w The EU budget is regulated under Articles 310 to 319 TFEU. The annual budgetary procedure, as established by Article 314 TFEU, where Parliament is one of two main budgetary authorities. Parliament participates from the preparation stage. According to Article 318 TFEU, it has right to monitor budget implementation. Also, pursuant to Article 319 TFEU, the EP gives a discharge on the implementation of the budget x Article 290 TFEU y According to the declaration, in relation to the delimitation of competences, “the representatives of the governments of the Member States, meeting in an Intergovernmental Conference, in accordance with the ordinary revision procedure provided for in Article 48(2) to (5) TEU, may decide to amend the Treaties upon which the Union is founded, including either to increase or to reduce the competences conferred on the Union in the said Treaties”

fifty-nine; Poland—fifty-two; Romania—thirty-three; the Netherlands—twentynine; Belgium, Greece, Hungary, Portugal, Sweden and the Czech Republic— twenty-one (each); Austria—nineteen; Bulgaria—seventeen; Finland, Denmark and Slovakia—fourteen (each); Ireland—thirteen; Croatia—twelve; Lithuania— eleven; Latvia and Slovenia—eight (each); Estonia—seven; Cyprus, Luxembourg and Malta—six (each). The number of the seats allocated to Member States and the Members of the Parliament are determined on the basis of population size and “degressive proportionality.” This way of composition was introduced in Article I-20 of the European Constitution, which was not ratified. The principle was then consolidated in Article 14 TEU: “Representation of citizens shall be degressively proportional, with a minimum threshold of six members per Member State. No Member State shall be allocated more than ninety-six seats.”4 The concept of the degressive proportionality includes two principles: the principle of fair division and the principle of relative proportionality.5 The first principle states: “The larger the population of a Member State, the greater its entitlement to a large number of seats.” The second principle states: “Each Member of the European Parliament (MEP) from a more populous Member State represents more citizens than each Member from a less populous Member State.”6

4 The issue on the composition of the EP is disputed among academics. A new approach to the degressive proportionality was introduced in Delgado-Márquez et al. (2013), pp. 458–471. Also see Florek (2011). 5 Florek (2011). 6 Article 1 of the European Council Decision (EU) 2018/937 of 28 June 2018 establishing the composition of the European Parliament.

26

3.2

3 The European Parliament

Structure and Operation

The Rules of Procedure is the main document that regulates the organization and work of the EP. Table 3.2 includes and describes the main bodies of the Parliament.

3.2.1

Political Groups

The work of the Parliament crucially depends on political groups, which are the main actors in the EP. A political group is a political coalition of MEPs. Pursuant to Rule 33(2) of the Rules of Procedure of the EP, a political group must be composed of at least 25 MEPs from at least one-quarter of the Member States (at least seven countries). An MEP cannot be in two political groups simultaneously. Each political group has its own staff working in its bureau and secretariat, appoints a Chair and receives funds from the EP (Table 3.3).

3.2.2

Sessions

The regular meetings of the MEPs are a core part of their legislative work in committees and political groups. In accordance with Article 229 TFEU, the EP holds an annual session and meets on the second Tuesday in March. An extraordinary part-session is also possible at the request of the majority of MEPs or at the request of the Council or the Commission. The Rules of Procedure of the EP regulate the plenary sittings under the Title VII. The sessions are open to the public and the press. Previously, the Parliament had a right to decide by a two-thirds majority to sit in camera, however, the rule has never been used and was abolished in 1999.7 The EP operates simultaneously in three places: Strasbourg (France), Luxemburg (Luxemburg), and Brussels (Belgium).8 The General Secretariat of the Parliament is based in Luxembourg. The annual session of the EP is divided into twelve partsessions.9 The rule was fixed by Protocol 6 to the Treaties, which stated that these sessions take place in Strasbourg (the official home of the EP), including the budget session; additional sessions shall be held in Brussels as well as committee meetings. Initially, the definition of the location of the seat in Strasbourg “where 12 ordinary plenary part-sessions must take place on a regular basis, including those during which the Parliament is to exercise the budgetary powers conferred upon it by the 7

Corbett (2011), p. 191. Protocol (No. 6) on the Location of the Seats of the Institutions and of the Bodies, Offices, Agencies and Departments of the European Union. 9 Schütze (2015), p. 163. 8

3.2 Structure and Operation

27

Table 3.2 Main bodies of the EP and governing rules Term (for permanent bodies)/ Frequency of Meetings 2.5 years (Rule 19)

Election/ Arrangement Elected by the MEPs (Rule 16)

Body President of the EPa

Composition –

Vice-Presidents

14 Vice-Presidents (Rule 17)

2.5 years (Rule 19)

Elected by the MEPs (Rule 17)

Quaestors (political body)

5 Quaestors (Rule 18)

2.5 years (Rule 19) Meeting: once a month

Elected by the MEPs (Rule 18)

Bureau (political body)

President and the 14 VicePresidents, the Quaestors (in an advisory capacity) (Rule 24)

Meeting: twice a month

–

Duties • To direct all the activities of Parliament and its bodies • To moderate sittings to represent Parliament in international relations, on ceremonial occasions and in administrative, legal and financial matters (Rule 22) • To replace the President when necessary (Rule 23) • To perform the duties of the Bureau (Rules 25) • To implement of Parliament’s relations with the national parliaments (Rule 27) • To hold specific question hours (Rule 173) • To answer written questions from MPs (Rule 138) To be responsible for financial and administrative matters concerning MEPs (Rule 28) To take financial, organisational, administrative decisions on matters within the EP (Rule 25) (continued)

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3 The European Parliament

Table 3.2 (continued) Term (for permanent bodies)/ Frequency of Meetings Meeting: twice a month

Election/ Arrangement –

Body Conference of Presidents (political body)

Composition President of the Parliament and the Chairs of the political groups (Rule 26)

Conference of Committee Chairs (political body)

Chairs of all standing or special committees (Rule 29)

Meeting: once a month in Strasbourg during plenary sittings

–

Conference of Delegation Chairs (political body)

Chairs of all standing interparliamentary delegations (Rule 30)

Tuesdays of Strasbourg sessions (12 meetings in a year)

–

Standing Committees

20 parliamentary committees 1 committee includes 25 to 81 MEPs, a chair, a bureau, a secretariat (Rule 206, Annex VI to the Rules of Procedure)

2.5 years for the committee’s bureau (renewable) committees meet once or twice a month in Brussels

Parliament sets up standing committees proposed by the Conference of Presidents

Duties To take decisions on the organisation of the Parliament’s work about its relations with other institutions of the EU and with the national parliaments of Member States (Rule 27) To make recommendations to the Conference of Presidents about the work of committees and the drafting of the agendas of partsessions (Rule 29) To make recommendations to the Conference of Presidents about the work of the delegations or to carry out specific tasks for the Conference of Presidents (Rule 30) • To prepare draft amendments and adopt legislative proposals and reports on their initiatives (Annex VI to the Rules of Procedure) • To examine questions referred to them by the Parliament, or, during an adjournment of the session, the President on behalf of the (continued)

3.2 Structure and Operation

29

Table 3.2 (continued)

Body

Composition

Special Committeesb (temporary) Committee of Inquiryd (temporary)

30 MEPsc

Subcommitteesf

25 to 73 MEPs

a

57 MEPse

Term (for permanent bodies)/ Frequency of Meetings

Max 12 months (Parliament may extend the term) Max 12 months (may be extended up to 6 months by the Parliament) Procedure is the same as for the committees (Rule 212)

Election/ Arrangement

Parliament may, at any time, set up committee Parliament sets up a committee on proposal from Conference of Presidents A standing or special committee may set up subcommittee after authorisation by the Conference of Presidents (Rule 212)

Duties Conference of Presidents (Rule 210) To deal with specific issues (Rule 207) To investigate contraventions or allegations of maladministration of EU law (Rule 208) To deal with specific issues to report to the parent committee (Rule 212)

David Maria Sassoli is the current President of the European Parliament (as of 19.04.2020) As of the date 19.04.2020, there is no special committee in the EP. In November 2018, the last special committee—the Special Committee on Terrorism (TERR) adopted its final report on findings and recommendations (2018/2044(INI)) of 21.11.2018. Available at: https://www. europarl.europa.eu/doceo/document/A-8-2018-0374_EN.html?redirect. Accessed on 19.04.2020 c This number is the number of members in the last Special Committee on Terrorism approved by the parliament at the date of 25.11.2017. The full list of members is available at: http://www.europarl. europa.eu/resources/library/media/20170912RES83783/20170912RES83783.pdf (25.11.2017) d Two committees of inquiry have been established during this legislature, 2014–2019. First was the Committee on the Measurement of Emissions in the Automotive Sector, which worked from 17.12.2015 to 04.04.2017. The second was the Committee on Money Laundering, Tax Avoidance and Tax Fraud; it worked from 08.06. 2016, to 13.12.2017 e Number of members in the Committee on Money Laundering, Tax Avoidance and Tax Avasion at the date of 25.11.2017. The full list of members available at: http://www.europarl.europa.eu/ committees/en/pana/members.html (25.11.2017) f For instance, as of 19.04.2020, the Committee on Foreign Affairs has set up two subcommittees: on Human Rights and on Security and Defense. The sub-committees include 30 MPEs each b

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3 The European Parliament

Table 3.3 Political Groups of the EP No. 1 2 3 4 5 6 7 8 Total a

Name of the Political Groupa Group of the European People’s Party Group of the Progressive Alliance of Socialists and Democrats in the European Parliament Renew Europe Group Identity and Democracy Group of the Greens/European Free Alliance European Conservatives and Reformists Confederal Group of the European United Left—Nordic Green Left Non-attached Members

Abbreviation EPP S&D

ID Greens/EFA ECR GUE/NGL NI

Number of members 187 147 98 76 67 61 39 29 704

The numbers are as of 22.04.2020

Treaty,” was provided by the European Court in Case C-345/95.10 In addition, the ECJ earlier held that the Parliament is in session from the opening until the closure of the annual session.11 Every part-session lasts one working week in Strasbourg. The standard plenary sittings in Brussels are held six times per year for two days. The short additional plenary in Brussels can be called only for several hours, for example, to hear the European Council President’s speech.

3.3

Powers

Currently, the EP has legislative, budgetary and supervisory powers.

3.3.1

Legislative Power

As was described above, the EP received its rights and powers through the amending Treaties, beginning as an advisory and consultative organ, and becoming an institution with decision-making power. The EP’s approval must be obtained before legislation can be adopted in cases where the ordinary legislative procedure (Article

10

Judgment of the Court of 1 October 1997. French Republic v European Parliament. Case C-345/ 95, European Court Reports 1997 I-05215. 11 Judgment of the Court of 12 May 1964. Albert Wagner v Jean Fohrmann and Antoine Krier. Case 101-63.

3.3 Powers

31

294 TFEU) applies. Currently, the ordinary legislation procedure is applicable to eight-six areas, half of which have been extended through the Lisbon Treaty.12 According to the ordinary legislative procedure, a draft of an act has to go through three readings in both the European Parliament and the Council. When both agree on a text, the act can be adopted. The procedure can be concluded at a first or at second reading if mutual agreement is found. Pursuant to Article 289(1) TFEU, the Parliament and the Council together adopt regulations, directives, and decisions on proposals from the Commission using the ordinary procedure. Besides the ordinary legislative procedure, the EP can act through two special procedures:13 the consent (assent) procedure and the consultation procedure. The Single European Act (SEA) introduced the consent procedure, initially known as the assent procedure. The SEA changed Article 237 EEC Treaty14 (accession of new members of the Community) and Article 238 EEC Treaty15 (conclusion of agreements with a third state, a union of states or an international organization). These new provisions required the assent of the European Parliament for the Council to act further. Later, the scope of procedure was extended by the Maastricht, Amsterdam, Nice and Lisbon Treaties. The latter changed the name from the “assent” to the “consent” procedure, thereby demonstrating that the voice of the Parliament had become significantly stronger. The assent procedure was applicable by the Maastricht Treaty for the legislation process where the Council acts by unanimous decision, for instance: the provision for tasks, priority objectives and the organization of structural funds,16 and tasks of the European Central Bank.17 The Lisbon Treaty inserted new provisions under the consent procedure, for example, Articles 7, 14, 17, 27, 48 and 50 of the TEU, Articles 19, 83, 86, 218, 223, 311 and 312 TFEU, and Article 352 TFEU for cases where measures should be adopted by the Council when action by the Union is considered necessary and the Treaties do not provide the necessary powers. The consultation procedure is another procedure that can provide the Parliament with some influence. There are about thirty areas where the Council consults with the Parliament. The consultation procedure is applicable to areas under Article 27 (3) TEU (acting for the Council on a proposal from the High Representative and with the consent of the Commission), 41(3) TEU (establishing the specific procedure

12

Corbett et al. (2011), pp. 293–295. Article 289(2) TFEU. 14 Article 8 of the SEA. 15 Article 9 of the SEA. 16 The Treaty on European Union (Maastricht, 7 February 1992) inserted Article 130(d), but the Lisbon Treaty switched it to the ordinary legislation procedure. 17 Article 40 (ex Article 41) of the Protocol (No. 4) on the Statute of the European System of Central Banks and of the European Central Bank, however, currently it is also a matter for consultation of the parliament. OJ C 326, 26.10.2012, pp. 230–250. 13

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3 The European Parliament

for rapid access to appropriations in the Union budget for urgent financing), 48 (3) TEU (amendments of the Treaty) and to taxation (Article 113 TFEU), competition, harmonization of legislation related to the internal market (Article 115 TFEU), and some aspects of social security and social protection of workers and protection of workers where their employment contract is terminated, as well as representation and collective defense of the interests of workers and employers, including co-determination and conditions of employment for third-country nationals legally residing in the EU (Article 153(2) TFEU). Also, the Council consults with the Parliament when it is going to conclude an agreement that does not require the Parliament’s consent, but not where the agreements relate exclusively to the common foreign and security policy (Article 218(6)(lit. b) TFEU). Nevertheless, the European Parliament has a procedural right to be informed at all stages of the process and signature of such types of agreement.18 In 1980, the Isoglucose case19 answered the question of whether the Council could adopt Community legislation in the consultative procedure before receiving the Parliament’s opinion where it was required, according to the Treaty. Grounds of the case included the fact that the Council, without obtaining the requested opinion of the Parliament, adopted the regulation proposed by the Commission, which thus became Regulation No. 1293/79, amending Regulation No. 1111/77 that the applicant (a French company manufacturing, inter alia, isoglucose) asked to be declared invalid. Parliament intervened in support of the applicant and argued that the Council had not exhausted all procedural options available to obtain its opinion. The Court’s decision was in favor of Parliament.20 The judgment had an immediate effect, as the Parliament got an opportunity to use its power to delay when it was not satisfied with 18 Article 218(10) TFEU. Judgment of the Court (Grand Chamber), 24 June 2014. European Parliament v Council of the European Union (Agreement between the European Union and the Republic of Mauritius). Case C-658/11. The court stated in para. 54 that “Article 218(6) TFEU covers three types of procedure for concluding international agreements, each one prescribing a different role for the Parliament. Thus, the Parliament may be called upon to consent to the conclusion of an agreement, or it may only be consulted in that regard, or it may even be excluded from the process of concluding the agreement, without prejudice, however, to its right to be immediately and fully informed at all stages of the procedure, in accordance with Article 218 (10) TFEU.” 19 Judgment of the Court of 29 October 1980. SA Roquette Frères v Council of the European Communities. Isoglucose - Production quotas. Case 138/79. 20 As para 36 of Case 138/79 states:

[W]ithout prejudice to the questions of principle raised by that argument of the council it suffices to observe that in the present case on 25 June 1979 when the council adopted regulation no 1293/79 amending regulation no 1111/77 without the opinion of the assembly the Council had not exhausted all the possibilities of obtaining the preliminary opinion of the Parliament. In the first place the council did not request the application of the emergency procedure provided for by the internal regulation of the parliament although in other sectors and as regards other draft regulations it availed itself of that power at the same time. Further the Council could have made use of the possibility it had under article 139 of the Treaty to ask for an extraordinary session of the assembly especially as the bureau of the Parliament on 1 March and 10 May 1979 drew its attention to that possibility.

3.3 Powers

33

the response from the other institutions.21 In 1995, the framework of the applicability of Isoglucose was defined by Case C-65/93 European Parliament v Council of the European Union. The Court said that in urgent circumstances, if the Council did everything to get the Parliament’s opinion, it could decide if the Parliament decision making was delayed. Whereas, the Parliament: failed to discharge its obligation to cooperate sincerely with the Council. That is so especially since the Council was unable to avail itself of the possibility open to it under Article 139 of the Treaty, the information obtained by the Council from the President of the Parliament having made it clear that it was impossible for practical reasons to convene an extraordinary session of the Parliament before the end of 1992.22

Rule 61 of the Parliament’s internal Rules of Procedure was based on the Isoglucose case. According to the rule, “Where the Commission proposal as a whole is approved, but on the basis of amendments which have also been adopted, the vote on the draft legislative resolution shall be postponed until the Commission has stated its position on each of Parliament’s amendments.” However, in 2016, the Interinstitutional Agreement (IIA) between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making was concluded. The principle of the equal footing of the Parliament and the Council as co-legislators was reiterated by the new IIA. In addition, the Parliament and the Council agreed to ensure better synchronization of their treatment of legislative proposals. Afterwards, the Parliament provided measures for implementing the agreement, and Rule 61 was deleted.23 Another ability of the EP is the right to initiate legislation. In general, the Commission has the right of initiative under Article 17(2) TEU, but the Parliament has this right regarding the adoption of a uniform electoral procedure for European elections (Article 223 TFEU), provisions establishing the composition of the Parliament (Article 14 TEU), amendments of the Treaties (Article 48(2) TEU), the Statute for its Members (Article 223(2) TFEU), the Statute of Ombudsman (Article 228 (4) TFEU), the exercise of its own rights of inquiry and the determination of a clear risk of a serious breach by a Member State of the values of the Union (Article 7 TEU). The EP received, after the Maastricht Treaty, the right to request the Commission “to submit any appropriate proposal on matters on which it considers that the Union act is required for the purpose of implementing Treaties.”24 This is the “indirect” right to initiate legislation by the EP. Article 225 TFEU does not create an obligation for the Commission to propose the requested legislation, however, it creates an obligation to provide a reason for any refusal. In addition, in accordance with Article 265 TFEU, the Parliament can take the Commission to the Court of Justice of the EU if it fails to justify a negative decision. Also, the Commission’s failure to provide the 21

Corbett et al. (2011), p. 305. Case C-65/93 European Parliament v Council of the European Union, para. 27. 23 The Report on the General Revision of Parliament’s Rules and Procedure (2016/2114(REG)). 24 The right was maintained under Article 225 TFEU. 22

34

3 The European Parliament

Parliament with sufficient justification for not initiating legislation could be a reason for a motion of censure of the Commission’s activity under Article 234 TFEU (political sanctions).25 In 2010, the Parliament and the Commission revised their Framework Agreement of 2005. In accordance with paragraph 16 of the document: the Commission shall commit itself to report on the concrete follow-up of any request to submit a proposal pursuant to Article 225 TFEU (legislative initiative report) within 3 months following adoption of the corresponding resolution in plenary. The Commission shall come forward with a legislative proposal at the latest after 1 year or shall include the proposal in its next year’s Work Programme. If the Commission does not submit a proposal, it shall give Parliament detailed explanations of the reasons.

Hence the Commission’s Annual Work Programme is another way for the Parliament to influence the initiation of legislation. Pursuant to paragraph 35 of the EP-Commission Framework Agreement, “the Commission shall take into account the priorities expressed by Parliament and . . . provide sufficient detail as to what is envisaged under each point in its Work Programme.”26 The institutions cooperate in accordance with the timetable set out in Annex 4 to the Framework Agreement.

3.3.2

Budgetary Power

Before the Lisbon Treaty, the EU budget included compulsory expenditures (those which result from Treaty obligations or secondary legislation and expenditures resulting from international agreements) and non-compulsory expenditures (those which relate to issues such as social and regional policy, research and aid and others).27 At that time, the terms “compulsory expenditure” and “non-compulsory expenditure” were not used under Article 203 of the Treaty of Rome (EEC). According to Article 203, “the European Parliament shall have the right to amend the draft budget, acting by a majority of its members, and to propose to the Council, acting by an absolute majority of the votes cast, modifications to the draft budget relating to expenditure necessarily resulting from this Treaty or from acts adopted in accordance therewith.”28 The Lisbon Treaty abolished distinctions between the two types of expenditures, and Parliament had joint power with the Council over the overall budget. The procedure for budget adoption is regulated under Article 314 TFEU. Now the 25

Grabitz et al. (2017), p. 3. Framework Agreement on Relations between the European Parliament and the European Commission, OJ L 304, 20.11.2010, pp. 47–62. 27 Kaczorowska-Ireland (2016), p. 77. 28 Article 4 of the Treaty amending Certain Budgetary Provisions of the treaties establishing the European Communities and of the Treaty establishing a single Council and a single Commission of the European Communities of 22 April 1970, (OJEC). 02.01.1971, No. L 2. [s.l.]. ISSN 03786978, p. 1. 26

3.3 Powers

35

procedure is a variant of the ordinary legislative procedure.29 Of note is that the Parliament can be considered more powerful than the Council regarding the adoption of the budget. The latter may not impose a budget against the will of the Parliament, while the Parliament may, in some circumstances, have the last word and impose a budget against the will of the Council.30 There were instances when the Parliament rejected the budget proposal (1979 and 1984). After the Lisbon Treaty, the Parliament and the Council also had some difficulty reaching agreement (2011, 2013, and 2015), however, the Conciliation Committee found a compromise in each case, presenting a new draft budget that was ultimately adopted. In 2017, an agreement had already been reached by the Conciliation Committee. The draft was adopted by the Council, and the Parliament voted for it. The institutions agreed to a compromise package of EUR 157.857 billion in commitments and EUR 134.45 billion in payments. The main priorities for the budget were boosting growth, creating jobs, particularly for the younger generation, and the migration issue.31 In addition to the Lisbon Treaty, the relations between the Council, the Commission and the Parliament are regulated by the interinstitutional agreements on budgetary discipline and the multiannual financial frameworks. The main goals of the concept of a multiannual financial perspective were to reduce conflict, enhance budgetary discipline and improve implementation through better planning. The current legal basis includes Article 312 TFEU, Council Regulation (EU, Euratom) No. 1311/2013 of 2 December 2013, laying down the multiannual financial framework for the years 2014–2020;32 and the Interinstitutional Agreement of 2 December 2013 between the EP, the Council and the Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management.33 Involvement in the budgetary process is one of the strongest powers the Parliament has over the Commission. It can freeze issues in the budget proposal and let them out only after Parliament’s comments and notes have been addressed. Also, according to Article 319 TFEU, the EP has power to grant annual discharge to the Commission for their execution of the budget. The Parliament’s negative decision on this issue can be crucial for the Commission.

29

Craig and Búrca (2011), p. 57. Article 314 (7d) TFEU. 31 Full information regarding the budgetary process is available at: http://ec.europa.eu/budget/ biblio/documents/2018/2018_en.cfm (12.11.2017). 32 OJ L 347, 20.12.2013, pp. 884–891. 33 OJ C 373, 20.12.2013, pp. 1–11. 30

36

3.3.3

3 The European Parliament

Supervisory Power

The European Parliament carries out supervision authority over the Council, the Commission and other EU bodies in different ways. The Parliament has appointment and dismissal power. According to Article 17 (7) TEU, the European Council proposes to the European Parliament a candidate for President of the Commission. The Parliament elects the candidate by a majority of its component members. Under Article 17(7) TEU, besides the President of the Commission, the European Parliament approves the High Representative of the Union for Foreign Affairs and Security Policy34 and the other members of the Commission as a body by a vote of consent. The Parliament does not have the power to remove a particular person but only to approve or reject a whole Commission.35 The EP is able to force a Commission to resign as a body, and the High Representative of the Union for Foreign Affairs and Security Policy shall also resign from his/her duties in the Commission, but not the President and the particular commissioner. It can be done through a motion of censure, according to Article 17(8) TEU and Article 234 TFEU. If the Parliament adopts a motion of censure by two-thirds majority of the vote cast against a Commission, all of its members are required to resign. The motion of censure holds significant power that can even lead to a crisis in the EU.36 The single example of the real possibility to execute the motion of censure successfully by the Parliament resulted in the resignation of an entire Commission and its President in 1999 (the Santer Commission).37 The Parliament appoints a European Ombudsman under Article 228 TFEU. In accordance with Article 283(2) TFEU, the Parliament has to be consulted in respect of a high-ranking appointment such as the President, the Vice-President and the members of the Executive Board of the European Central Bank (ECB). The EP also plays a role in the appointments process to EU agencies. For instance, it has the right to have nominees on the Management Board of the European Environmental

34 High Representative of the Union for Foreign Affairs and Security Policy is ex officio the VicePresident of the Commission. (Article 18(4) TEU). 35 Corbett et al. (2011), p. 296. 36 Kaczorowska-Ireland (2016), p. 76. 37 Corbett et al. (2011), pp. 287–290, p. 310.

3.3 Powers

37

Agency,38 the European Monitoring Centre for Drugs and Drug Addiction,39 and the European Chemical Agency.40 Besides direct participation in appointments to the different bodies of the EU, the European Parliament takes an indirect part in the appointment to the European Court of Justice. According to Article 255 TFEU, before the appointment of a Judge and the Advocate-General of the Court of Justice and the General Court, a panel of seven former European Court or national Supreme Court judges and lawyers of recognized competence, one of whom shall be proposed by the European Parliament, gives an opinion on the candidates’ suitability. The European Parliament provides constant scrutiny through reports, questions and debates. The Parliament is able to examine an annual report and periodic reports, as well as “Programmes of Action” submitted by the EU bodies. In accordance with Article 225 TFEU, the Parliament can call upon the Commission to provide communications on situations in specific areas. Usually these communications relate to the relevant legislation and the Parliament’s specific requests. According to Article 233 TFEU, the Commission submits an annual general report on the activities of the Union for discussion in the open session by the Parliament. The Commission submits the report on the implementation of the budget,41 and reports regarding progress achieved in social rights areas.42 In addition, relations between the Commission and the parliament, and, particularly, guarantees for constructive and regular political dialogue, are regulated by the Framework Agreement on Relations between the Parliament and the Commission.43 For other institutions such as the European Council, the President of the European Council are requested to submit a report to the Parliament after each of its meetings. According to Article 15(6)(lit. d) TEU, the ECB (Article 284(3) TFEU) and the Ombudsman (Article 228 TFEU) must present reports to the European Parliament. The Parliament has another source of information through asking questions of the European institutions. According to Article 36 TEU, MEPs can table questions to the

38 Article 8 of the Regulation (EC) No. 401/2009 of the European Parliament and of the Council of 23 April 2009 on the European Environment Agency and the European Environment Information and Observation Network (Codified version). OJ L 126, 21.5.2009, pp. 13–22. 39 Article 9 of the Regulation (EC) No. 1920/2006 of the European Parliament and of the Council of 12 December 2006 on the European Monitoring Centre for Drugs and Drug Addiction. 40 Article 79 of the Regulation (EC) No. 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No. 793/93 and Commission Regulation (EC) No. 1488/ 94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC. 41 Article 318 TFEU. 42 Article 159 TFEU. 43 Framework Agreement on Relations between the European Parliament and the European Commission. OJ L 304, 20.11.2010, pp. 47–62.

38

3 The European Parliament

Council and can ask it to initiate new policies. Any member may also put questions to the High Representative of the Union for Foreign Affairs and Security Policy. Article 230 TFEU stipulates that the Commission shall reply to the question of the EP. The “question” procedure is regulated under Chapter 3 of the Rules of Procedure of the EP. Questions may be for written answers, for oral answers with debates, and also may be held at each part-session for a duration of up to 90 min (question times). The procedure is transparent: questions for written answers, including the answers, are published on the Parliament’s website.44 Pursuant to Articles 24 and 227 TFEU, every citizen of the EU and any natural or legal person residing or having its registered office in a Member State has the right to address a petition to the European Parliament on a matter that comes within the Union’s framework of activity. The EP participated in proceedings before the Court of Justice only once prior to 1979 (the pre-direct election period). It was the case regarding the dates of opening and closure of the annual session determined by Article 22 of the ECSC Treaty.45 The first significant case for the directly elected European Parliament was the abovementioned Isoglucose case,46 where the Court held that the Parliament was entitled to take part in legal proceedings before the Court of Justice. Nowadays, the Parliament is one of the privileged applicants47 (plaintiffs) in accordance with Article 263 TFEU. The Parliament may bring an action for annulment of acts adopted by the Union’s institutions, European bodies, offices or organizations where these acts are intended to produce legal effects vis-à-vis third parties. According to Article 265 TFEU, the Parliament may bring actions against the European institutions, bodies, offices and agencies if they fail to act. Simultaneously the Parliament’s actions are also subject to judicial review under Articles 263 and 265 TFEU. In addition, the European Parliament has rights under Article 218(11) TFEU to “obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties.” Another tool for exercising scrutiny over executive institutions is provided under Article 226 TFEU. It requires establishing temporary Committees of Inquiry to examine the facts of contravention or maladministration of the implementation of Union law. Moreover, according to Article 227 TFEU, any EU citizen, resident, company, or organization can submit a petition to the European Parliament about EU law. 44 Questions, answers and annexes thereto are available at http://www.europarl.europa.eu/plenary/ en/parliamentary-questions.html (22.11.2017). 45 Judgment of the Court of 12 May 1964. Albert Wagner v Jean Fohrmann and Antoine Krier. Reference for a preliminary ruling: Tribunal d'arrondissement de Luxembourg—Grand-Duchy of Luxembourg. Case 101-63. 46 Judgment of the Court of 29 October 1980. SA Roquette Frères v Council of the European Communities. Isoglucose—Production quotas. Case 138/79; Maizena GmbH v Council of the European Communities. Isoglucose—Production quotas. Case 139/79. 47 Kaczorowska-Ireland (2016), p. 77.

References

39

To conclude, one can say that the EP is a unique institution among international parliamentary assemblies. R. Corbett, F. Jacobs and D. Neville suppose that “the EU without the Parliament would be a system dominated by bureaucrats and diplomats, loosely supervised by ministers flying periodically into Brussels.” Also, scholars compared the EP with the US Congress, that “has its own identity and independent legitimacy and is separate from the executive.”48 The EP is a guarantor of transparency and democracy of the EU. The full-time MEPs represent the different regions of all EU Member States. They organize themselves in political groups but not a national delegation. As a consequence, a particular issue is discussed not between state representatives as it is in traditional IGOs, but between representatives of different political views (pluralism) that are included in EU law.49

References Books, Book Chapters, Articles, Studies, Papers Corbett R, Jacobs F, Neville D (2011) The European Parliament. John Harper Publishing, London Craig P, Búrca G (2011) EU law text, cases and materials. Oxford University Press, Oxford Delgado-Márquez BL, Kaeding M, Palomares A (2013) A more balanced composition of the European Parliament with degressive proportionality. Eur Union Politics 14(3):458 ff. https:// doi.org/10.1177/1465116513485470. Accessed 30 June 2018 Florek J (2011) Allocation of seats in the European Parliament and a degressive proportionality. Cornell University Library, Ithaca. https://arxiv.org/abs/1104.3075. Accessed 14 Oct 2017 Grabitz E, Hilf M, Nettesheim M (2017) Das Recht der Europäischen Union. Kommentar. Band III. Verlag C.H. Beck oHG, Munich Kaczorowska-Ireland A (2016) European Union Law. Routledge, Milton Park Schütze R (2015) European Union Law. Cambridge University Press, Cambridge

48 49

Corbett et al. (2011), p. 319. Corbett et al. (2011), pp. 5–6.

Chapter 4

Inter-Parliamentary Union

4.1

Historical Development, Definition and Legal Status

Another type of international organization with an active involvement of parliamentarians is an inter-parliamentary association. The following chapter is about one of the popular inter-parliamentary international associations—the Inter-Parliamentary Union (IPU). Sir William Randal Cremer, a British MP, and a French Deputy, Monsieur Frédéric Passy, were the founders of the IPU. They held a preliminary meeting in Paris in 1888, and the following year the first Inter-Parliamentary Conference (since 1899 called the IPU) was held in London. One of the two IPU’s regular sessions (former annual conferences) have been held usually in one of the world’s capital cities,1 the inviting country providing all the facilities for the conference.2 In 1921, the IPU was permanently headquartered in Geneva, where at least one of its yearly sessions takes place.3 The initial purpose of the IPU was the promotion of peace through arbitration between nations.4 According to Article 1 of the early version of the Statute, the IPU’s object is “to promote personal contacts between members of all Parliaments, constituted into National Groups, and to unite them in common action to secure and maintain the full participation of their respective States in the firm establishment and development of democratic institutions and the advancement of the work of international peace and co-operation.”5

1

The full list of cities is available at: http://archive.ipu.org/strct-e/lstconf.htm (20.01.2018). Wilding and Laundy (1972), p. 388; Arndt (2009). 3 Rule 4 of the Rules of the Assembly. IPU. Adopted in 1971. 4 Schwarz (2015), p. 329. 5 Wilding and Laundy (1972), p. 388. 2

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 A. Chiniaeva, Parliamentarization of International Governmental Organizations, European Union and its Neighbours in a Globalized World 2, https://doi.org/10.1007/978-3-030-71341-6_4

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4 Inter-Parliamentary Union

Another purpose of the IPU is the establishment of parliamentary institutions, including the promotion of human rights. Later, that purpose has been reinforced by the IPU in its Universal Declaration on Democracy that was adopted on the occasion of the 98th Inter-Parliamentary Conference in Cairo, on 11–16 September 1997.6 In the International Geneva Year Book, the IPU can be found under the title “Organizations with Special Status.”7 There is not a clear answer regarding the legal status of the IPU in the literature. Generally, the IPU is classified as a non-governmental private organization, whose purpose is limited to parliamentary cooperation.8 It cannot be classified as a public international organization, because the typical public international organization is a form of cooperation that is founded in an international agreement.9 The common form of the agreement is a treaty concluded between states. Also, government representatives can express a decision to create an organization or they can be actively involved in the creation of the organization. This fact can also demonstrate the existence of an unwritten agreement (see above, p. 3). The IPU did not have active governmental participation when it was created. It was not created between states; it was created solely by national parliaments. Therefore, it does not fit the formal requirements of an international public organization—foundation via an international agreement between states. However, an alternative point of view exists, in which the IPU is classified as an international organization, which “is distinguishable from non-governmental organizations and private voluntary organizations in its membership of parliaments, the public, legislative organs of States, rather than of private or personal interests.” Moreover, “no parliament would be able to participate in the work of the IPU without the explicit or implicit consent of the Executive.” This position recognized that the IPU is “a public organization with strict membership conditions”—it is open only to parliamentarians, not to individuals qua individuals.10 The absence of a clear picture regarding its status creates obstacles for the IPU for its work, such as the lack of an ability to provide full protection to staff members (tax exemptions, obtaining visas for all delegates attending events and meetings organized by the IPU), and the ability to cooperate with other international organizations.

6

Arndt (2009). Dembinski-Goumard and Dembinski (2008); Dembinski-Goumard (2005). 8 Schermers and Blokker (2011), p. 35. 9 Schermers and Blokker (2011), p. 35. According to this, study there are three key elements that define an international organization as a form of cooperation: (1) founded on an international agreement; (2) having at least one organ with a will of its own; (3) established under international law. 10 I. Brownlie and G.S. Goodwin-Gill, “Joint Opinion on the Inter-Parliamentary Union,” Prepared on the instructions of Mr. Anders B. Johnsson, Secretary General Inter-Parliamentary Union, Geneva, Switzerland, 31 May 1999. See paras 1, 2, 4, 5, 8 of the statement and para. 65 of the opinion. 7

4.1 Historical Development, Definition and Legal Status

43

In 2010, the IPU started to look for the opportunity to solve this problem through the conclusion of an international convention on the IPU. The report11 setting out the reasons for the concluding of the convention was discussed at the 186th session of the Governing Council. The IPU tried, through using this approach, to get “a clear expression of States’ commitment to work together in the IPU.” The convention would help the IPU attain the status of an international public organization. Also, it would allow the IPU to solve its problems regarding the privileges and immunities for its delegates and officials, and would place the IPU on the same level as major international organizations, and, consequently this would facilitate better cooperation with them. The IPU was recognized as an international organization at least by two states where it is located: Switzerland and the USA.12 Switzerland recognized the personality and legal capacity of the IPU due to it by virtue of its status, and guaranteed the independence and freedom of action belonging to it as an international institution.13 On September 17, 1981, the Mission of the US to International Organizations signed a tax reimbursement agreement with the IPU.14 Also, the IPU established a liaison office in March 1988 in New York.15 After that, the White House issued an executive order on the IPU.16 This document confirmed the IPU’s international status by designating the IPU as “a public international organization entitled to enjoy the privileges, exemptions, and immunities conferred by the International Organizations Immunities Act.” According to the Act, [T]he term international organization means a public international organization in which the United States participates pursuant to any treaty or under the authority of any Act of Congress authorizing such participation or making an appropriation for such participation, and which shall have been designated by the President through appropriate Executive order

11 Results of the 122nd Assembly and related meetings of the Inter-Parliamentary Union, An International Convention on the IPU, p. 54. Available at http://archive.ipu.org/conf-e/122/122.pdf (20.12.2017). 12 Currently, the US is not a member of the IPU (period of US membership is from 1935 to 1999). The US was a member of the IPU from 1935, according to “An Act to Authorize Participation by the United States in the Interparliamentary Union,” approved on June 28, 1935 (22 U.S.C. 276–276a–4). In 1998, congress passed legislation to end US participation on October 1, 1999 (Public Law 105–277, Sec. 2503 United States Membership in the Bureau of the Interparliamentary Union). 13 Articles 1 and 2 of the Agreement between the Swiss Federal Council and the Inter-Parliamentary Union to Settle the Juridical Status of the Inter-Parliamentary Union in Switzerland. Available at: http://www.internationaldemocracywatch.org/attachments/141_Agreement-IPU-Switzerland-juridi cal-status-IPU-28-September-1971.pdf (24.04.2020). 14 United States Treaties and Other International Agreements, Volume 33, Part 4, Department of State, 1988, p. 4143. 15 The Liaison Office was replaced by the Office of the Permanent Observer of the IPU to the United Nations (OPO) after granting of observer status to the IPU by the UN General Assembly in November 2002. 16 The document is available at: http://www.internationaldemocracywatch.org/index.php/interparliamentary-union-treaties-and-protocols/143-executive-order-of-the-white-house-on-the-ipu1998 (04.01.2018).

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4 Inter-Parliamentary Union as being entitled to enjoy the privileges, exemptions, and immunities provided in this subchapter.17

In 1999, the US withdrew its IPU membership because of controversy regarding a financial issue.18 However, nothing was said regarding losing the status of an international organization granted earlier by the US to the IPU, in the document proposing the withdrawal of membership. Currently, the IPU continues to provide its activity in the US within the UN framework. The IPU actively cooperates with the UN. In 1996, the two organizations signed a cooperation agreement whereby the UN recognized the IPU as “the world organization of Parliaments.”19 Later, Heads of State and Government resolved to strengthen cooperation between the UN and national parliaments through the IPU, including in areas of peace and security, economic and social development, sustainable development and disaster risk reduction, international law, human rights, democracy and gender issues, according to the UN Millennium Declaration of 2000.20 In 2002, the IPU was invited to participate in the sessions and the work of the UN General Assembly as a permanent observer.21 Since that time, it has had the right to speak, submit proposals, circulate documents, but never to vote. Resolution 57/47 on cooperation between the UN and the IPU detailed the IPU’s observer status.22 In 2016, the UN and the IPU concluded a new cooperation agreement under which the important role of parliamentarians for achieving the aims of the UN’s longstanding project, the 2030 Agenda for Sustainable Development, was recognized.23 The UN did not want to extend to a great extent the final version of the new agreement in respect of the IPU. In 2015, the IPU presented the draft of this agreement to the UN, which included ten detailed articles regarding general provisions, parliamentary development cooperation and consultation, reciprocal representation, joint meetings and activities, the status of the IPU at the UN, cooperation between the secretariats, exchange of information and documents, supplementary agreements, and entry into force, amendments and duration. The main parts of these articles were shortened and changed, and the article on the status of the IPU at the 22 U.S. Code §288. Public Law 105-277, Sec. 2503 United States Membership in the Bureau of the Interparliamentary Union. 19 Cooperation Agreement between the UN and the IPU of 24 July 1996. Available at: http://www. internationaldemocracywatch.org/attachments/142_Cooperation-Agreement-UN-IPU-24-July1996.pdf (10.01.2018). 20 UN General Assembly, Resolution A/RES/55/2 of 18 September 2000. Available at: http://www. un.org/millennium/declaration/ares552e.htm (10.01.2018). 21 UN General Assembly, Resolution A/RES/57/32 of 20 January 2003. Available at: http://archive. ipu.org/Un-e/a-res-57-32.pdf (10.01.2018). 22 UN General Assembly, Resolution A/RES/57/47 of 16 January 2003. Available at: http://archive. ipu.org/Un-e/a-res-57-47.pdf (10.01.2018). 23 Cooperation Agreement between the United Nations and the Inter-Parliamentary Union. Available at: http://archive.ipu.org/finance-e/UN-IPU.pdf (11.01.2018). 17 18

4.1 Historical Development, Definition and Legal Status

45

UN was not included. It is noteworthy that, according to this article, the IPU defined itself as “the international organization of the parliaments of sovereign States.” According to the UN and the IPU Agreement, the IPU may enter into separate agreements and memoranda of understanding with UN agencies, funds and programs.24 It has concluded agreements, for instance, with UNESCO and the Food and Agriculture Organization of the UN (FAO),25 the International Labour Organization (ILO),26 a memorandum of understanding with the Office of the UN High Commissioner for Human Rights (OHCHR),27 and a memorandum of understanding with the UN Development Programme (UNDP).28 The UN and its agencies provide the IPU with funding and support its projects to assist parliamentarians as part of its promotion and good governance.29 Some of the documents include a definition of the IPU. According to the Agreement with OHCHR, paragraph 1.4, [T]he IPU is the world organization of Parliaments of sovereign States [emphasis added]. It is the focal point for the world-wide parliamentary dialog and works for peace and co-operation among peoples and from the firm establishment of representative democracy. To that end it contributes, inter alia, to the defense and promotion of human rights – an essential factor of parliamentary democracy and development.

The preamble of the Memorandum of Understanding of 2007 with the UNDP states that the IPU “is an international organization of parliaments of sovereign States with its headquarters in Geneva” (emphasis added). The Cooperation Agreement with the ILO, paragraph 1.1, recognized (emphasis added) that the IPU: as the world organization of national parliaments, by virtue of its character and responsibilities plays an important role in promoting peace, democracy and international cooperation, in furtherance of and in conformity with the purposes for which the ILO was established.

Moreover, the supplementary materials to the Agreement with the ILO state that: [A]s an association of parliaments the IPU has a special status, and in 1975 the Governing Body approved the recognition of the jurisdiction of the ILO Administrative Tribunal by the IPU. This approval implied recognition of the IPU as equivalent to an intergovernmental

24 Article VII(2) of the Agreement between the United Nations and the Inter-Parliamentary Union of 2016. 25 UN doc. A/52/456 of 13 October 1997, Cooperation between the United Nations and the InterParliamentary Union, Report of the Secretary-General, p. 4. 26 Cooperation Agreement between the ILO and the IPU, signed 27 May 1999, Geneva. Official Bulletin, Volume LXXXII, Series A, 1999. 27 Memorandum of Understanding on Co-Operation between the IPU and OHCHR of 2nd July 1999, Treaty Series 2072 I:35925-35939 II:1221, United National Publications, p. 408. 28 Memorandum of Understanding signed by the UNDP and the IPU on 21 November 2007. Results of the 118th Assembly and related meetings of the Inter-Parliamentary, p.54. The new Memorandum of Understanding was signed on 27 November 2017. 29 For example, the UNDP provided findings and support to the IPU. See the Yearbook of the UN 1997, p.1492; the Yearbook of the UN 1998, p.1341.

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4 Inter-Parliamentary Union organization for the purposes of the Statute of the Tribunal since, under that Statute, the Tribunal was at the time open only to international intergovernmental organizations.30

There is an opinion in the literature that the IPU could become a specialized agency of the UN system.31 However, this is hardly possible. Firstly, according to Article 57 of the UN Charter, the specialized agency needs to be treaty-based— “established by intergovernmental agreement.” Secondly, it is difficult or even impossible to secure the political will regarding this issue. Moreover, the IPU itself does not have an interest in this transformation, because the organization would have to change its initial purposes and work methods, and even lose its identity as the IPU.32 Therefore, the UN and the IPU have chosen another way for closer cooperation, through the creation of the Standing Committee on United Nations Affairs. The mandate of this committee includes examining UN operations at the national level, providing a platform for regular interaction between parliamentarians and United Nations officials, reviewing implementation of international commitments, facilitating closer ties between the United Nations country teams and national parliaments and helping shape a parliamentary input to major UN processes.33 Also, the IPU has developed its contacts with other international parliamentary institutions, such as the European Parliament and the Parliamentary Assembly of the Council of Europe. Both assemblies are associate members of the IPU (see below, p. 47). In 1993, PACE and the IPU concluded a Memorandum of Understanding on cooperation. The document provides for the organizations to participate in and observe each other’s statutory meetings and ad hoc meetings on common concerns. The President of the IPU is invited to address PACE, and the President of PACE may address the IPU. Where appropriate, the IPU may submit a written communication on a subject under consideration by PACE. Also, the Memorandum stipulates some working arrangements regarding the exchange of official documentations on a regular basis.34 Starting in 2002, the Presidential Committee of PACE has attended annual IPU Conferences.35 Both parliamentary institutions organize capacitybuilding workshops to advocate the importance and nature of the human rights role of parliaments at national and international levels.36

30 GB.274/LILS/1, 274th Session, Geneva, 23 March 1999. Available at: http://www.ilo.org/public/ english/standards/relm/gb/docs/gb274/lils-1.htm. 31 Kissling (2011), p. 25. 32 Heinrich (2010), p. 28. 33 UN Resolutions A/68/272 of 19 May 2014, A/70/298 of 25 July 2016 on Interaction between the United Nations, national parliaments and the Inter-Parliamentary Union. 34 Memorandum on co-operation between the Parliamentary Assembly of the Council of Europe and the Inter-Parliamentary Union of 11 May 1993. 35 Evans and Silk (2013), p. 368. 36 Saul et al. (2017), p. 8.

4.2 Composition and Structure

4.2

47

Composition and Structure

In accordance with Article 3 of the IPU Statutes, every parliament is welcomed in the IPU if it is established in conformity with the laws of a sovereign state whose population it represents or is an aspirational state recognized by the UN. The Governing Council makes a decision to admit or readmit a parliament. Each member and associate member of the union has to pay annual contributions. These contributions constitute the bulk of the IPU’s budget.37 As of January 2018, the overall membership of the IPU was 178 national parliaments, including all EU Member States and twelve Associate Members.38 Four organs were established under the IPU Statutes: The Assembly, the Governing Council, the Executive Committee and the Secretariat.39 The IPU Assembly (former IPU Conference) is the principal statutory body of the organization and meets twice a year. Normally, each session lasts for four days during the autumn and spring. As a plenary organ, it debates issues in a framework of focal points under Article 1 of the IPU Statutes and makes recommendations expressing the views of the organization. The Assembly works in accordance with its Rules.40 Standing Committees assist the Assembly in its work. There are four Standing Committees, each functioning with its own Rules:41 the Committee on Peace and International Security, the Committee on Sustainable Development, Finance and Trade, the Committee on Democracy and Human Rights and the Committee on United Nations Affairs. The Governing Council (former Inter-Parliamentary Council) is the plenary body of the organization. The work of the Council is regulated by its own rules. The body is composed of three representatives from each member parliament42 and normally holds two sessions a year.43 It determines and guides the activities of the organization and oversees their implementation in compliance with the IPU’s focal points as defined in the Statutes. The Governing Council elects the President of the IPU for

37 The budget of the IPU for 2018 was 15,871,200 CHF (Swiss francs) in accordance with the “2018 Consolidate Budget,” IPU Doc. No. EX/276/6(b)-P.1 CL/201/7-P.1 of 18 October 2017. 38 Andean Parliament, Arab Parliament, Central American Parliament (PARLACEN), East African Legislative Assembly (EALA), European Parliament (EP), Interparliamentary Assembly of Member Nations of the Commonwealth of Independent States, Inter-Parliamentary Committee of the West African Economic and Monetary Union (WAEMU), Latin American Parliament, Parliament of the Central African Economic and Monetary Community (CEMAC), Parliament of the Economic Community of West African States (ECOWAS), Parliamentary Assembly of the Council of Europe (PACE), Parliamentary Assembly of the Black Sea Economic Cooperation (PABSEC). 39 Article 8 of the IPU Statutes. 40 Rules of the Assembly adopted in 1971 (last revision was in 2017). Available at: http://archive. ipu.org/strct-e/asmblrules-new.htm (20.01.2018). 41 Rules of the Standing Committees adopted in 1971 (last version was in April 2017). Available at: http://archive.ipu.org/strct-e/cmtrules-new.htm (23.01.2017). 42 Article 18 of the IPU Statutes. 43 Article 17 of the IPU Statutes.

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three years term, who is ex officio President of the Governing Council.44 Also, it elects the members of the Executive Committee and appoints the Secretary General of the IPU. It establishes the list of international organizations and other bodies that shall have observer status at the IPU’s meeting on a regular basis. The Council also adopts the annual program and budget of the union.45 The Executive Committee is an administrative organ of the IPU. The Executive Committee consists of the President of the IPU, fifteen elected members, the President of the Bureau of Women Parliamentarians and the President of the Board of the Forum of Young Parliamentarians. The Executive Committee includes a Sub-Committee on Finance, which reviews and makes recommendations on its financials matters and guides the Secretariat regarding the preparation of the annual IPU budget. The Executive Committee makes recommendations to the Governing Council on different matters, including assessment of the candidates wishing to join the IPU, in accordance with the requirements provided in Article 3 of the Statutes of the IPU. Also, the Committee examines candidatures for the post of Secretary General and proposals to the Governing Council. The Committee sets the date and place of Governing Council sessions and establishes a provisional agenda. It also proposes the IPU’s annual work program and budget.46 The Executive Committee works in accordance with its own rules.47 As was mentioned above, the Governing Council appoints the Secretary General of the IPU. The Secretary General is a head of a Secretariat. It is regulated under its own rules,48 besides the IPU Statutes and Financial Regulations49 as well as the other three statutory organs. The Secretariat is the permanent headquarters of the IPU, located in Geneva, Switzerland and in New York, USA (Office of the Permanent Observer of the IPU to the United Nations). It provides the execution of the decisions of the Governing Council and of the Assembly and prepares proposals for a draft work programme and budget for the consideration of the Executive Committee.50 Currently, the number of staff working at both the headquarters is forty members. Besides the above-listed bodies, the following committees, working groups and ad hoc bodies of the union compose the structure of the IPU: the Committee on the Human Rights of Parliamentarians, the Committee on Middle East Questions, the Group of Facilitators for Cyprus, the Committee to Promote Respect for

44

Article 19 of the IPU Statutes. Article 21 of the IPU Statutes. 46 Article 26 of the IPU Statutes. 47 Rules of the Executive Committee adopted in 1972 (last version was in April 2017). Available at: http://archive.ipu.org/strct-e/exrules-new.htm (22.01.2018). 48 Rules of the Secretariat of the IPA adopted in April 1996 (last version was in March 2013). Available at: http://archive.ipu.org/strct-e/scrtrules-new.htm#2 (23.01.2018). 49 Financial Regulations of the IPU adopted in April 1996, (last version was in April 2017). Available at: http://archive.ipu.org/strct-e/finregl-new.htm#3 (23.01.2018). 50 Article 28 of the IPU Statutes. 45

4.3 IPU Activities

49

International Humanitarian Law, the Advisory Group on Health, the Bureau of Women Parliamentarians, the Gender Partnership Group, the Forum of Young Parliamentarians of the IPU and six working groups. Currently, six geopolitical groups are active in the IPU: Africa, the Arab Group, Asia-Pacific, Eurasia, Latin America and the Caribbean Groups and the Twelve Plus Group51. The mandate and composition of these bodies is established by the Governing Council.

4.3 4.3.1

IPU Activities Common Principles for Support to Parliaments

Common Principles for Support to Parliaments is one of the recent global projects developed by the IPU. The document was formally adopted by the IPU’s governing bodies on 16 October 2014 during the IPU's 131st Assembly. It is the result of an extensive consultation process involving many parliaments, which has produced a coherent, clear and comprehensive outcome. A five-member working group from the IPU, the UNDP, the National Assembly of France, the EP and the National Democratic Institute were brought together by the IPU to start developing the principles. Parliaments and partners in parliamentary support provided their comments and input during the process. As Martin Chungong, Secretary General of the IPU, said: [T]he Common Principles pull together the experience of more than forty years of external support to parliaments. They underline, among other points, the central role of parliament in defining its strategic objectives, and the role that external assistance can play in supporting the development of democratic parliaments. The Common Principles provide a strong framework for more effective cooperation between parliaments and their partners.52

The objects of the principles are to improve and to broaden assistance to the partners who provide support to parliaments worldwide, and to make it possible for them to work toward sharing a fundamental approach for the design and implementation of parliamentary support. The IPU intends to create efficient networks between parliaments, states, IGOs and NGOs at both the national and international levels. Notably, this is the first real global effort to improve significantly or even to create a new type of cooperation between parliaments and partners in parliamentary support53 using the worldwide inter-parliamentary organization as a platform. For this purpose, the document

“Twelve-Plus group” includes 47 states (mostly European states and Western states such as Canada, New Zealand and Australia). 52 Letter to Lamberto Zannier, OSCE Secretary General, from Martin Chungong, Secretary General of the IPU, regarding the endorsement of the Common Principles for Support to Parliaments, dated 19 March 2015. 53 The term “parliamentary support partners” refers to those actors that are external to parliaments and who are engaged in parliamentary support work. 51

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proposes one general and nine specific principles for support to parliaments: the support should be guided by the needs of parliaments; take account of the social, economic and political contexts of individual parliaments; aim for sustainable outcomes; include all political tendencies; be grounded in international standards; address the needs and potential of women and men equally; use local and regional expertise; use effective coordination and communication; and guarantee ethical and responsible conduct by partners. As of 20 December 2019, the IPU had received 161 endorsements of the document. The Common Principles were supported by 135 national parliaments, seven parliamentary assemblies, including the EP, and nineteen partner organizations, including such organizations as the ILO and the UNDP.54 Probably, if the IPU could get the political will behind it to use such support elements to create an efficient parliamentary network, the Common Principles could be an alternative way of creating a worldwide dimension for the establishment of a global parliamentary assembly as a new organ of the UN.

4.3.2

Parliamentary Conference on the WTO

Soon after the WTO started its activities, the debate began on whether this global international organization needed an associated parliamentary structure, and, if so, what the latter’s role, functions and structure could be.55 For the first time, the group of members of parliaments from the WTO Member States attended the third WTO Ministerial Conference in 1999 in Seattle, where an ad-hoc meeting regarding the establishment of the WTO Parliamentary Assembly took place. They adopted the document named “Call for the Establishment of Standing Body of Parliamentarians Representing All Member Countries by the Parliamentarians Attending the Third Ministerial Conference of the World Trade Organization.”56 The parliamentarians called for the establishment of a standing body of parliamentarians. However, the proposal for establishing a standing body attached to the WTO was not supported by the WTO members. Therefore, another option was advocated—the addition of an informal inter-parliamentary forum to the WTO that could evolve over time.57

54

Endorsements of the Common Principles for Support to Parliaments as of 20 December 2019. Available at: https://www.ipu.org/our-impact/strong-parliaments/setting-standards/common-princi ples-support-parliaments (25.04.2020). 55 Options for a Parliamentary Dimension of the WTO, Discussion Paper presented by Kobsak Chutikul, MP (Thailand) at Parliamentary Conference on the WTO, Geneva, 17-18 February 2003. 56 Call for the Establishment of Standing Body of Parliamentarians Representing All Member Countries by the Parliamentarians Attending the Third Ministerial Conference of the World Trade Organization of 2 December 1999. Available at: http://www.thunderlake.com/ministerials/ wto_parliament.pdf (05.02.2018). 57 Kaiser (2006), pp. 62–63.

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On 5 October 2001, one month before the WTO Ministerial Conference in Doha, the EP and the IPU proposed the joint EP and IPU Memorandum. The memorandum included several options on how best to organize parliamentary work with respect to the WTO. The first option was the establishment of a standing body of parliamentarians formally linked to the WTO. The second option was the creation of a standing body as a separate, independent structure. The third option was providing a parliamentary dimension for the WTO through already existing parliamentary institutions such as the IPU.58 All options would provide parliamentarians with common advantages: to be informed about WTO developments, to get an opportunity to participate in WTO negotiations, to get a better understanding of the perspectives of other WTO members via the discussions at international level, and, finally, to provide monitoring of public support for the WTO “as a multilateral forum for resolving cross-border trade disputes in a peaceful manner.”59 At the fourth Ministerial Council in Doha in 2001, the IPU and the EP convened a one-day parliamentary meeting (of about one hundred parliamentarians from the WTO Member States) on the idea of a parliamentary conference on the WTO. The invited parliamentarians supported the joint EP and IPU memorandum and agreed to establish a steering group to prepare a conference on trade issues. The first session of that conference took place in Geneva in February 2003. The event was a joint undertaking of the IPU and the EP, whose aim was to bring a parliamentary dimension to multilateral cooperation on trade issues, and, as a consequence, to strengthen democracy at the international level. The conference became a regular event. In 2017, the eleventh WTO Ministerial Conference took place in Buenos Aires, Argentina. Usually sessions of the Parliamentary Conference on the WTO are held once a year and on the occasion of WTO Ministerial Conferences. The objectives of the conference included all the advantages provided above. Specifically, in accordance with Article 1.1 of the WTO Parliamentary Conference Rules of Procedure,60 it “is a forum for the exchange of opinions, information and experience . . . for the promotion of common action on topics related to the role of parliaments and the organisation of parliamentary functions in the area of international trade issues.” The conference provides the WTO with the parliamentary dimension, and, as a consequence, that increases the external transparency of the organization. According to the Rules of Procedure “the Conference plays the role of a parliamentary dimension to the WTO by:

58

Final Declaration/Conclusions, Parliamentary Conference Doha/Qatar, 11 November 2001. Available at: http://www.europarl.europa.eu/intcoop/conference_wto/2001_doha/documents/ final_declaration_en.pdf (05.02.2018). 59 Kaiser (2006), pp. 62–63. 60 Rules of Procedure of the Parliamentary Conference of the WTO, adopted on 26 November 2004, amended on 12 September 2008. Available at: http://archive.ipu.org/splz-e/trade08/rules.htm (03.07.2018).

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– overseeing WTO activities and promoting their effectiveness and fairness; – promoting the transparency of WTO procedures and improving the dialogue between governments, parliaments and civil society; – building capacity in parliaments in matters of international trade and exerting influence on the direction of discussions within the WTO.” Obviously, the WTO members choose for themselves the most convenient form of parliamentary interaction by creating a platform for discussion organized by the EP and the IPU instead of a standing body of the WTO with advisory power. By virtue of this choice, the IPU gained another opportunity to strengthen its position as a worldwide parliamentary body that provides parliamentary dimensions for the huge and powerful intergovernmental organizations.

References Books, Book Chapters, Articles, Studies, Papers Arndt F (2009) Inter-Parliamentary Union (IPU). MPEPIL. https://opil.ouplaw.com/view/10.1093/ law:epil/9780199231690/law-9780199231690-e1060?rskey¼ruP01V&result¼2&prd¼OPIL. Accessed 24 Apr 2020 Dembinski-Goumard D (2005) International Geneva yearbook, 2005–2006: organization and activities of international institutions in Geneva 19, UN Dembinski-Goumard D, Dembinski I (2008) International Geneva yearbook 2008: organization and activities of international institutions in Geneva 20, UN Evans P, Silk P (2013) The parliamentary assembly practice and procedure. Council of Europe Publishing, Strasbourg Heinrich D (2010) The case for a United Nations Parliamentary Assembly. Committee for a Democratic U.N, Berlin Kaiser K (2006) Article IV WTO agreement in WTO: institutions and dispute settlement. In: Wolfrum R (ed) Max Planck commentaries on World Trade Law 2. Brill, Leiden, p 62 ff Kissling C (2011) The legal and political status of International Parliamentary Institutions 4. Committee for a Democratic U.N, Berlin Saul M, Føllesdal A, Ulfstein G (2017) The International Human Rights judiciary and National Parliaments: Europe and beyond. Cambridge University Press, Cambridge Schermers HG, Blokker NM (2011) International institutional law: unity within diversity. Brill, Nijhoff, Leiden Schwarz I (2015) The work of the Inter-Parliamentary Union. In: Hunt M, Hooper H, Yowell P (eds) Parliaments and human rights: redressing the democratic deficit. Bloomsbury Publishing, London, p 329 ff Wilding N, Laundy P (1972) An encyclopedia of Parliament. Cassel, London

Chapter 5

The Organization for Security and Co-operation in Europe

5.1 5.1.1

Legal Basis and Legal Status of the OSCE The Blue Book

The history of the Organization for Security and Co-operation in Europe started in 1972, when the first Multilateral Preparatory Talks took place at Dipoli, the meeting center near Helsinki. The heads of diplomatic missions from 34 countries1 participated in negotiations. The first compromise was found in less than 1 year of hard disputes between the Western nations and the Eastern bloc and resulted in the adoption of the Final Recommendations of the Helsinki Consultation, which is also known as the “Blue Book.”2 The document mainly included conditions under which the Conference on Security and Co-operation in Europe (CSCE) should be held, particularly the organization of the conference, its agenda and the instructions, participation, contributions, guests, date, place, rules of procedure and financial arrangements.3 Then from 1973 to 1975, the three stages of the CSCE listed in the Blue Book occurred.4 The signing of the Helsinki Final Act became a final significant result of the negotiation series and hard work among the gathered states;5 some of them belonged to the West (NATO) and some to the East (Warsaw Pact). 1

There are 35 original participating States; however, Monaco joined the negotiations only in 1973 after adoption of the Blue Book. The country was among the original signatories of the Helsinki Final Act. 2 Bloed (1993), p. 7. 3 Final Recommendations of the Helsinki Consultations, 3 July 1973. 4 On 3–7 July 1973, Stage I of the CSCE took place in Helsinki; from 18 September 1973 to 21 July 1975, Stage II took place in Geneva, and, finally, from 30 July to 1 August, Stage III took place. 5 Original participating States of the CSCE/OSCE: Austria, Belgium, Bulgaria, Canada, Cyprus, Czechoslovakia, Denmark, Finland, France, the German Democratic Republic, the Federal © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 A. Chiniaeva, Parliamentarization of International Governmental Organizations, European Union and its Neighbours in a Globalized World 2, https://doi.org/10.1007/978-3-030-71341-6_5

53

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Although the Helsinki Final Act is considered as the basic document, it should be noted that the three main areas, which became known as the “three baskets” of the CSCE on substantive issues, were listed for the first time on the pages of the Blue Book in its agenda: I. Questions related to security in Europe; II. Cooperation in the fields of economics, of science and technology and of the environment; III. Cooperation in humanitarian and other fields; IV. Follow-up to the conference. The first three items became the basis for the organization and characterized its structure and activity.

5.1.2

The Helsinki Final Act

The main discussion about the above-listed baskets was during Stage II of the CSCE. The most disputed were the first (security) and third (humanitarian) areas. However, agreement on the adoption of a Final Act was achieved on July 12, 1975 and, the document was signed by participating States on August 1, 1975. The Final Act is a comprehensive and significant document of the Organization for Security and Co-operation in Europe that includes the Declaration on Principles Guiding Relations between Participating States, that, among other principles, includes sovereign equality; respect for the rights inherent in sovereignty; refraining from the threat or use of force; inviolability of frontiers, territorial integrity of states, and peaceful settlement of disputes; non-intervention in internal affairs; and respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief, equal rights and self-determination of peoples. It is noteworthy that all these principles, including human rights, were listed under the questions relating to security, or the first basket. A. Bloed and M. Wood, together with D. Purisch,6 wrote that it was made on the initiative of the Western states to demonstrate “interlinkage of the baskets”7 and emphasized that the cooperation among participating States and progress within such areas as security and economy is not possible without progress in human rights. M. Cogen noted that the Western countries stressed “the acceptance of human rights as a step towards more

Republic of Germany, Greece, the Holy See, Hungary, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, Monaco, the Netherlands, Norway, Poland, Portugal, Romania, San Marino, Spain, Sweden, Switzerland, Turkey, the Union of Soviet Socialist Republics, the United Kingdom, the United States of America and Yugoslavia. 6 Bloed (1993) and Wood and Purisch (2011). 7 Bloed (1993), p. 27.

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freedom in Central and Eastern Europe.”8 Consequently, the high importance of human rights for security and stability in the region was highlighted by the fact of including them in the first basket. It was expressed in the politically binding text of the Final Act, where the participating States declared that all principles “are of primary significance.”9 The Helsinki Final Act is not a legally binding document. Already, the title, “Conference on Security and Co-operation in Europe Final Act,” speaks itself about its legal nature; according to L. Oppenheim’s definition, “the Final Act of a Conference does not itself normally constitute an agreement or treaty; nor does signature of the Final Act (which merely records the results arrived at by the conference, so that signature merely confirms that those results were indeed achieved) commit the signatory states to signing or becoming a party to whatever treaty resulted from the conference.”10 Moreover, the states that adopted this document made clear their intention not to conclude a legally binding document,11 by adding in the text that it was “not eligible for registration under Article 102 of the [UN] Charter.”12 This phrase means that the document is not in the category of an “international treaty” or other international instruments that are required to be registered with the UN, and, consequently, it cannot be invoked before an organ of the UN. However, the Helsinki Final Act became a significant politically binding document that includes references to the international agreements to which participating States are bound legally. In accordance with the Helsinki Final Act 1975: [I]n the field of human rights and fundamental freedoms, the participating States will act in conformity with the purposes and principles of the Charter of the United Nations and with the Universal Declaration of Human Rights. They will also fulfil their obligations as set forth in the international declarations and agreements in this field, including inter alia the International Covenants on Human Rights, by which they may be bound.13

5.1.3

Charter of Paris for a New Europe

The second CSCE Summit Meeting after Helsinki took place in Paris from 19 to 21 November 1990. This summit commemorated the new post-Cold War period for

8

Cogen (2015), p. 147. Preamble of the Declaration on Principles Guiding Relations between Participating States, Helsinki Final Act 1975. 10 Oppenheim’s International Law (Vol. I)—Peace (9th rev ed), R. Jennings (ed), p. 1187. 11 The same happened with other OSCE documents such as the OSCE Document of the Stockholm Conference of 1986, the OSCE Charter of Paris 1990, and the OSCE Code of Conduct on PoliticoMilitary Aspects of Security, 1994. 12 Aust (2012), p. 50. 13 VII. Respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief, Helsinki Final Act 1975. 9

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Europe. Also, it became a key meeting for the CSCE itself, not only as a conference, but as an international institution. After signing the Helsinki Final Act in 1975, the CSCE remained with the status as a conference for establishing political cooperation among participating States.14 This status was the intention of the original participating States. In 1990, the situation changed. During the preparation of the summit, a significant number of issues for strengthening the role of the CSCE were raised. The opinions of the participating States were divided. Some states proposed a transformation of the conference into an international organization with legal basis. Notably, Poland and Czechoslovakia supported this position. Meanwhile, the more powerful participating States, such as the US, were in favor of maintaining the political conference character of the CSCE. They considered that it would be better to strengthen its role as a forum for political consultation. However, this idea also required the institutionalization of the CSCE.15 A consensus was found, and, as the result, the participating States signed the Charter of Paris for a New Europe on November 21, 1990. The document included the part “New Structures and Institutions of the CSCE Process,” which is considered as the basis for the institutional structure of the OSCE. Also, two political decisionmaking bodies were established: the CSCE Council and the Committee of Senior Officials, and three administrative institutions: the Secretariat, the Office for Free Elections, and the Conflict Prevention Centre. The difference between the Helsinki and Paris Summits is that the first was focused on founding and developing the framework for political cooperation, in other words, it was an externally oriented summit mainly looking for state partners. During the second summit, already participating States agreed on the framework for cooperation, and they tried to create a strong institutionalized forum for further strengthening political cooperation. Hence, states changed their attitude, and the

14 For instance, the important role of the conference in cooperation between the US and the USSR was stressed by the US Attaché in the USSR, Jack Matlock. He said that “The positive experience of cooperation of [the USSR and US], which played a significant role in the development of the Final Act, and in the successful progress of the conference as a whole show that continuation of such cooperation on the issues of practical implementation of the decisions of the conference would serve the interests of relaxing tensions and peace in Europe as well as Soviet-American relations” (emphasis added). History and Public Policy Program Digital Archive, Archive of Foreign Policy of the Russian Federation, Fond 733, opis 6, delo 2. Translated by Svetlana Savranskaya for the National Security Archive. Available at http://digitalarchive.wilsoncenter.org/document/121173 (11.09.2018). In addition, Prime Minister Jacques Chirac (France) during the conversation with Vice Premier Deng Xiaoping (China) on 12 May 1975 said, “Naturally there is no question of institutionalizing this summit procedure but to end the conference. For us this is not a solution to the problem of security and we put emphasis on the aspect of cooperation. We seek security by other means.” Obtained and translated for CWIHP by Martin Albers and included in CWIHP e-Dossier No. 45. http://digitalarchive.wilsoncenter.org/document/118650 (11.09.2018). 15 Bloed (1993), p. 60.

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meeting became internally oriented, where states were focused on the internal work of the conference and its functionality. The Helsinki Final Act and the Charter of Paris are basic documents which all countries that want to join the OSCE have to sign. Today, if a particular country wants to be an OSCE participating State, it sends a Note Verbale to the OSCE, demonstrating its willingness to accept fully all the commitments and responsibilities stemming from these and other relative CSCE/OSCE documents, and to act in accordance with the provisions contained therein.

5.1.4

Rome Decision 1993 and the Question of Legal Capacity

The OSCE, as well as the above-mentioned IPU, has had problems regarding their legal status. In 1993, the fourth meeting of the Ministerial Council took place in Rome. In order to assist in harmonizing the rules to be applied, the ministers in Rome adopted a politically binding CSCE Council Decision on Legal Capacity and Privileges and Immunities (1993 Rome Decision),16 and Annex 1 on Provisions Concerning the Legal Capacity of the CSCE Institutions.17 Annex 1 to the decision, among others, included such issues as provisions concerning the legal capacity of the CSCE institutions, privileges and immunities. The documents became very significant, because participating States admitted in it “the usefulness of legal capacity being granted to the CSCE institutions in the territories of all the CSCE participating States.” They also agreed that “it was appropriate that certain privileges and immunities be granted to the CSCE institutions and their officers and staffs.” Moreover, after the adoption of the Rome Decision, the CSCE obtained some characteristics that were beyond the status of a conference. Particularly, the recognition of the need to establish the institutional framework for managing relations and communication between participating States was added to such characteristics as the multiplicity of states and the existence of a substantial measure of contact between them, and awareness of the common problems of concern.18 However, the ministers that adopted the Rome Decision mentioned that the competence to make rules concerning the legal status of the CSCE and its privileges and immunity “rests with the legislature.” Therefore, it was recommended to participating States to implement the provision of the decision and Annex 1 in accordance

16

The Final Document of the Rome Ministerial Council does not contain the Rome Decision. The Rome Decision was issued as a separate document CSCE /4-C/Dec.2 of 1 December 1993. Text of the document is available in Appendix 1 to the thesis. 17 CSCE/4-C/Dec.2 Annex 1. 18 Menon (1992), pp. 79–97.

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with their constitutional and related requirements.19 In other words, the Rome Decision proposed to the participating States to provide the legal personality to the CSCE under their domestic law. More than 20 years later, nearly a quarter of the participating States, including host states to the OSCE institutional structures (such as Austria—OSCE Secretariat, Poland—ODIHR, Czech Republic—OSCE Documentation Centre, the Netherlands—HCNM, Denmark—OSCE PA), have adopted legislation or measures implementing the Rome Decision.20 Since 2000, legal experts in different combinations—such as OSCE working groups (open-ended, informal), panels of eminent persons, and expert groups have been looking for an approach to establish the legal status of the OSCE under international law.21 Currently, the topic is under consideration in the open-ended Informal Working Group on Strengthening the Legal Framework of the OSCE, which meets at least three times a year.22 The group works at expert level under the Permanent Council. Ambassador John Bernhard has been the chairperson since 2012. Discussions about the issues of strengthening the legal framework of the OSCE are held among the participating States, particularly legal experts, and representatives of the OSCE missions, field offices and the Legal Services Department of the OSCE Secretariat, which does the massive preparation needed for these meetings. The Informal Working Group was created to find a possible and a comfortable solution for the legal personality problem for all participating States. Several possible solutions for the problem were offered for discussion in 2015.23 One of them was to update the above-mentioned Rome Decision of 1993. Authors of this option stressed that, for the last two decades, the CSCE/OSCE had passed through a massive process of transformation, and that an update of the Rome Decision could preserve its relevance and practical application. Another suggestion was the implementation of the Rome Decision through signature and ratification of the 2007 Draft Convention on International Legal Personality, Legal Capacity and Privileges and Immunities.24 In 2005, the “Panel of Eminent Persons” in its Report on Common Purpose (Towards a More Effective

19

Paras 5-8 of the Decision on Legal Capacity and Privileges and Immunities, CSCE /4-C/Dec.2 of 1 December 1993. 20 Tabassi (2019), pp. 53–54. 21 Tichy (2019), p. 84. 22 Report to the Ministerial Council on Strengthening the Legal Framework of the OSCE in 2018, MC.GAL/10/18 of 7 December 2018. 23 Para. 4 of the Report to the Ministerial Council on Strengthening the Legal Framework of the OSCE in 2015. MC.GAL/4/15 of 1 December 2015. 24 CIO.GAL/48/07/Rev.6, dated 23 October 2007. Text of the Draft Convention is available in Appendix 2 to the thesis.

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OSCE)25 stressed that “Participating States should devise a concise Statute or Charter of the OSCE containing its basic goals, principles and commitments, as well as the structure of its main decision-making bodies. This would help the OSCE to become a full-scale regional organization.” Moreover, the panel recommended to participating States to “agree on a convention recognizing the OSCE’s legal capacity and granting privileges and immunities to the OSCE and its officials.” In 2007, the draft convention was drawn up by an informal working group at expert level. This convention was agreed on by experts, however, its further life was blocked at the participating States level26 because of three footnotes placed by Russia, Belarus and the United States. These footnotes made the conclusion of the draft convention conditional on the existence of a “Charter of the OSCE.” Consensus between participating States regarding the footnotes’ condition was not reached, and signing of the convention has not been possible for the last 10 years. The fact that the last described option to implement the Rome Decision through signature and ratification of the 2007 Draft Convention is not a practical possibility, at least at this point in time, inspired the working group to propose the following option: signing and ratifying the Draft Convention of 2007 without disputable footnotes as a means of implementing the commitments in the 1993 Rome Ministerial Decision without further ministerial action. It was stressed that participating States expressed consensus in the Rome Decision on the need to provide privilege and immunities for the CSCE/OSCE, however, a form of implementation was not issued. Some participating States27 have done so to date but not in a uniform fashion. 25 Para. 30 of the Final Report and Recommendations of the Panel of Eminent Persons on Strengthening the Effectiveness of the OSCE, 27 June 2005. Available at: https://www.osce.org/ cio/15805?download¼true (24.05.2018). 26 Report to the Ministerial Council on Strengthening the Legal Framework of the OSCE in 2014, MC.GAL/5/14 of 2 December 2014. 27 For instance Austria see (before 2017) Federal Law on the Legal Status of OSCE Institutions in Austria, Federal Law Gazette No. 511/1993 as amended; effective as of 15 May 1993, (after 2017) The Agreement between the Republic of Austria and the Organization for Security and Co-operation of Europe (OSCE) regarding the Headquarters, Federal Law Gazette (Bundesgesetzblatt) III No. 84/2018.; Czech Republic see Act in respect of the CSCE Secretariat and Institutions, Act No. 125/1992. Germany see Federal Republic of Germany, Verordnung über Vorrechte und Immunitäten der Organisation für Sicherheit und Zusammenarbeit in Europa (OSZE), 18 February 2016, Federal Law Gazette (Bundesgesetzblatt) II No. 4 of 2016, 138 et seq.; Hungary see Act on Extension to Institutions, Officers and Employees of the Conference on Security and Co-operation in Europe, Representatives of Participating States and Members of CSCE Missions of the Privileges, Exemptions and Mitigations Granted under the 1961 Vienna Convention on Diplomatic Relations, Act LXXXV of 1994; Italy see the Law, 30 July 1998, n.301, published in the Official Gazette n. 196 on 24/08/1998; the Netherlands see Dutch Act of 31 October 2002 on the legal personality, privileges and immunities of the High Commissioner on National Minorities, Staatsblad 2002, 580 Official Gazette of the Kingdom of the Netherlands; Sweden see Lag (1976:661) om immunititet och privilegier i vissa fall (Act on Privileges and Immunities in Certain Cases), 2 b §, effective 1 July 1994; Lag (1994,716) om rättslig ställning för institiutioner inom Konferensen om säkerhet och samarbete i Europa (ESK) (Act on the Legal Capacity of CSCE Institutions), effective 9 June 1994. Unofficial English translation of key passages: “According to the Act on Privileges and Immunities in Certain Cases, 2 b §, such immunities and privileges as set

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Based on the absence of uniformity, it was concluded that participating States are free to sign an international agreement with each other to meet their Rome Decision commitments if they share the same the position. In this case, no additional ministerial action would be required. In other words, all participating States are free to fulfill their commitment under the Rome Decision through the 2007 Draft Convention signature and ratification if they have the will to do so.28 Those participating States that do not agree with the statements of the convention may meet their commitments under the Rome Decision in other ways. For more than 20 years, the OSCE, which was not created by a treaty, has claimed a public, intergovernmental status and therefore it has tried to prove the existence of an international agreement. The OSCE has tried to do so through the implementation of the Rome Decision at national level by the OSCE participating States. The question is whether the recognition of the organization under municipal law by every participating States means recognition at international level. R. Bindschedler argued that “The formation of an international institution is possible by means of corresponding provisions in the municipal law of individual countries involved [e.g., the first period of the Nordic Council]. This will not, however, be an international organizational law unless its status as a subject of international law can be based upon customary international law.”29 Custom is one of main sources of international law. According to Article 38(1) (lit. b) of the Statute of the International Court of Justice (ICJ), the ICJ applies “international custom, as evidence of a general practice accepted as law.” International custom includes two elements: the material one is behavior that is concordant and is the general practice of the state, and the psychological one (opinio juris) is the belief that this conduct stems from legal obligations and not from other motives.30 E. Manton31 presented evidence of both elements from the OSCE’s activity to show the possibility that the OSCE commitments qualify as regional customary law. The author examined the following areas to find evidence of state practice (the first element): the process of drafting of OSCE documents, these documents themselves and treaties that were concluded between OSCE participating states and that have out in paras 3-16 of the 1993 Rome Decision on the Legal Capacity and Privileges and Immunities Annex 1 are accorded to the CSCE Secretariat and the ODIHR.” “According to the Act on the Legal Capacity of CSCE Institutions, the Secretariat and ODIHR may acquire rights, assume obligations and institute legal proceedings in Sweden”; Switzerland see Federal Act on the Privileges, Immunities and Facilities and the financial Subsidies granted by Switzerland as a Host State, 22 June 2007, RS 192.12 and Ordinance to the Federal Act on the Privileges, Immunities and Facilities and the Financial Subsidies granted by Switzerland as a Host State, 7 December 2007, RS 192.121; United States see Section 422 of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (Public Law 103-236); Executive Order 13029 of December 3, 1996. 28 Para. 6 of the Report to The Ministerial Council on Strengthening the Legal Framework of the OSCE, in 2014 MC.GAL/5/14 of 2 December 2014. 29 Bindschedler (1995), p. 1290. 30 Boczek (2005), p.30. Also see Treves (2006). The Author named the same elements: objective (diuturnitas) and subjective (opinio juris sive necessitatis). 31 Manton (2006), pp. 195–214.

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incorporated the OSCE commitments. The consensus-based decision-making process is considered as a form of state practice.32 Analysis of the language of the OSCE documents and the fact that they were adopted unanimously indicate another piece of evidence of state practice. The long life of the Helsinki Final Act and the fact that it is included within OSCE commitments is “evidence of a general state practice consistent with OSCE principles.”33 Finally, the implementation of the OSCE commitments into legally binding treaties concluded between participating States is another piece.34 E. Manton refers to the above-mentioned Nicaragua case to find the opinio juris (second element). Therein, the ICJ stated that acceptance of the text of the Helsinki Final Act regarding the obligation to refrain from the threat or use of force confirms the existence of opinio juris of the participating States concerning the prohibition to use force in international relations.35 According to the author, “the Helsinki Final Act and other OSCE documents fulfil criteria for state practice as decisions of an international organization.” However, this discussion was applied to the “human dimension,” for which the main part of such commitments is already inserted in legally binding documents of other international organizations such as the UN. Moreover, it was supposed that all participating States would fully commit to their OSCE obligations. The events of the recent past and a number of unresolved international conflicts within the OSCE area (e.g., Nagorno-Karabakh, Transnistria) demonstrate the absence of consensus to meet and act under OSCE politically-binding obligations, despite the fact that consensus was reached regarding these issues at the OSCE Permanent Council and Ministerial Council meetings. Currently, the lack of legal personality and undefined legal status as an international organization creates a number of problems for the OSCE, which are described in various internal and external documents,36 and articles and books,37 and have been discussed by the participating States. These challenges can be divided into several groups of problems:

32

E. Manton provided the references to ICJ, particularly the Namibia Advisory Opinion of 1971 and Fischeries Jurisdiction cases of 1974, where the court found that “participating in codifying conferences can be evidence of state practice,” and to D. Shelton, who argued that “the process of drafting and voting for non-binding normative instruments also may be considered a form of state practice.” 33 Ford (1999). 34 E. Manton provided examples regarding the OSCE minority rights commitments and relevant treaties. 35 Para. 189 of the ICJ Reports of Judgments, Advisory Opinions and Orders, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 27 June 1986. 36 For instance, see HELSINKI +40 PROJECT, Food-for-Thought Paper: The OSCE’s Lack of an Agreed Legal Status—Challenges in Crisis Situations; SEC.GAL/20/00 of 6 March 2000; SEC. GAL/71/00 of 13 July 2000. 37 For instance, see Tichy and Köhler (2009); Brander (2009); White (2005), p. 51; Schermers and Blokker (2011), p. 991.

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1. Inability to use some instruments of international law (headquarters agreements, treaties). 2. At international level: 2a. Difficulties in competing with other international organizations because of different positions in the international arena 2b. Difficulties in receiving the same standard treatment as granted to other international organizations 2c. Inability to file claims against subjects of international law. 3. At national level: 3a. Recognition as a private law subject (opening bank accounts, registering vehicles in the OSCE’s name) 3b. Inability to initiate legal proceedings before national courts 3c. Lack of ability to provide full protection to staff members (tax exemptions, obtaining accreditations)

5.1.5

Budapest Summit 1994 and the Legal Status of the OSCE

In 1994, the Budapest Summit took place. This meeting of the Heads of State or Government was remarkable for continuing the CSCE’s institutional transformation that had started in Paris in 1990. Participating States decided to rename the Conference (CSCE) as the Organization for Security and Cooperation in Europe (OSCE). Technically, it was a formal step, because at that date, the CSCE already had some institutional structure and was able to act independently within its mandate granted by participating States.38 Moreover, the geography of the CSCE became broader: in 1994, the number of participating States exceeded fifty, from two continents. The Heads of State or Government stressed that “the CSCE is the security structure embracing States from Vancouver to Vladivostok.”39 Thus the OSCE was recognized as a political organization and with the characteristics of an international organization. The question of its legal personality and granting the status of an IGO appeared again. As was discussed in Sect. 1.1, in one theory of international law there are key elements that define an international organization as a form of cooperation: it is (1) an association of states; (2) founded on an international agreement (constitutional document); (3) at least one organ with a will of its own; (4) established under international law.40 38

For instance, in 1994 the CSCE structure included the Secretariat in Prague, the Conflict Prevention Centre in Vienna and the Office for Free Elections in Warsaw. All of these institutions were established in 1990 at the Paris Meeting of the Heads of State or Government. 39 Para. 2 of the Budapest Summit Declaration, Towards a Genuine Partnership in a New Era, Corrected Version 21 December 1994. 40 Schermers and Blokker (2011), Cogen (2015) and Klabbers (2015a, b).

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From the theoretical point of view, the OSCE is missing only one requirement to be admitted as an international organization, but it is the most significant one—a conventional basis (treaty, statute or charter). There are different definitions for the OSCE in literature. In its official documents, it is defined as a diplomatic and political forum for dialogue, negotiation and cooperation.41 M. Cogen gives a broader definition of it as “a diplomatic forum based on consultation and monitoring”42 and a “contemporarily legal and political decision-making institution at a pan-European scale.”43 For the purpose of this paper, the OSCE is considered as a political intergovernmental organization with limited legal personality, established under a politically binding (soft law) agreement concluded between participating States. J. Kubiš, the OSCE Secretary General from 1999 to 2005, summarized that: The OSCE possesses the essential criteria to enable it to be categorized as an intergovernmental organization. While the traditional view regards the conclusion of a constituent treaty as essential for the creation of an intergovernmental organization, another school holds that the absence of a formal constituent legal instrument need not be an impediment for an international entity to possess or acquire the status of an international organization with its own legal capacity. The OSCE’s structure and functions have undergone significant changes over the years, all in the direction of bringing it closer to other international organizations.44

One of the challenges for the OSCE as an IGO without a legal personality was the deployment of the Special Monitoring Mission of the OSCE in Ukraine. The Permanent Council requested the Secretary General to deploy the first group of OSCE officials within 24 h.45 The team was deployed within this time, however, only after 10 weeks, the legal arrangements regarding implementation of the mandate and the protection of the deployed staff members were in place and in force.46 Consequently, international staff members stayed without any legal protection, privileges and immunities for more than 2 months in the territory of an active conflict, before the Ukrainian authorities ratified the Memorandum of Understanding on Deployment of an OSCE Special Monitoring Mission. Nowadays, despite the lack of legal personality and unclear legal status, the OSCE is one of the more highly active among international organizations. The fortieth anniversary of the Helsinki Final Act was celebrated in 2015. Today, the

41 CSCE, Helsinki Summit Declaration, 1992, para. 22. Also the Charter of Paris for a New Europe (1990) defines the CSCE Council as a “central forum for regular political consultations within the CSCE process.” 42 Cogen (2015), p. 148. 43 Cogen (2015), p. 149. 44 Para. 34, SEC.GAL/20/00 of 6 March 2000, A Background Report on the OSCE Legal Capacity and Privileges and Immunities. 45 PC.DEC/1117 of 21 March 2014 on Deployment of an OSCE Special Monitoring Mission to Ukraine. 46 Para. 3, MC.GAL/5/14 of 2 December 2014, Report to the Ministerial Council on Strengthening the Legal Framework of the OSCE in 2014.

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OSCE includes fifty-seven participating States (pS) and eleven47 partners of cooperation in the Mediterranean Region, Asia and Australia. The strategy used by the OSCE is establishing dialogue and developing partnerships with governments, civil society and the private sector.48 This strategy has been successfully applied for many years and has helped to demonstrate the OSCE’s strong working character. The recent big wins for the OSCE’s legal status are two headquarters agreements with Austria49 and Poland.50 The OSCE was not recognized before as an international organization under international law by its participating States; it had only “a fragmented legal status” with different applicability in particular national laws.51 L. Tabassi, the former Head of the Office of Legal Affairs of the OSCE Secretariat, stressed the high significance of the events and specified that “registration of both agreements is being pursued with the UN Secretariat under Article 102 of the UN Charter.”52 The main advantage of the organization that it is extremely active on the ground via its long-term working missions. Missions of the OSCE have been deployed in seventeen53 places, including such conflict areas as Ukraine, the Russian-Ukrainian border and Nagorno-Karabakh. This structure of the institution and chain of missions allows the organization to react promptly and begin work on the ground immediately, for example, the Special Monitoring Mission in Ukraine (SMM) was deployed 24 h after the decision was taken by the pS. Unfortunately, recent events, such as the downgrading and closure of OSCE offices54 due to bias and suspicion from the host state, and problems with the funding and the mandate have undermined the field presence as its comparative advantage. The OSCE plays a significant role as a regional security organization under Chapter VIII of the Charter of the United Nations, contributing to international peace and security and promoting security and confidence in the OSCE area through

47 Algeria, Afghanistan, Australia, Egypt, Israel, Japan, Jordan, South Korea, Morocco, Thailand, Tunisia. 48 Dominguez (2014), p. 162. 49 On June 14, 2017, Austria recognized the OSCE as a legal entity under international law and concluded with the organization the Agreement Regarding the Headquarters of the OSCE. BGBl. III‑Ausgegeben am 4. Juni 2018‑Nr. 84. Available at: https://www.ris.bka.gv.at/Dokumente/ BgblAuth/BGBLA_2018_III_84/COO_2026_100_2_1531327.pdfsig (02.05.2020). 50 On 28 June 2017, Poland concluded the Arrangement between the OSCE and the Republic of Poland regarding the Status of the OSCE in the Republic of Poland. Dziennik Ustaw Rzeczypospolitej Polskiej, dnia 16 marca 2018 r., Poz. 560. Available at: http://prawo.sejm.gov. pl/isap.nsf/download.xsp/WDU20180000560/O/D20180560.pdf (02.05.2020). 51 Droesse (2019), p. 224. 52 Tabassi (2019), p. 54. 53 At the end of 2016, the OSCE had 17 field operations. See Tabassi (2019), p. 52. 54 One of examples is the case of the unpredictable governmental refusal to prolong the mandate of the office of the OSCE Project Coordinator in Baku (Azerbaijan) in 2015; after that the OSCE had only one month to close its offices and move its staff members.

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confidence and security-building measures.55 The comprehensive approach to security and the division of the organization into three baskets (the politico-military, the economic and environmental, and the human dimensions) allows the OSCE to handle a large number of issues and react promptly, either through its decisionmaking bodies and institutions or field operations. One such body of the OSCE structure is the OSCE Parliamentary Assembly.

5.2 5.2.1

OSCE Parliamentary Assembly Establishment

The OSCE PA is a relatively new international parliamentary assembly created after the Cold War, when compared with such assemblies as PACE and the NATO Parliamentary Assemblies, which were created after the Second World War. The OSCE PA’s history started in 1990 with the Paris Charter, where the pS recognized the “important role of parliamentarians in the CSCE process” and “called for greater parliamentary involvement in the CSCE”56 through the establishment of a CSCE Parliamentary Assembly, including members of parliaments from all pS. However, prior to this final suggestion, the idea of an OSCE Parliamentary Assembly had already been proposed by some of its future members in July 1990 at the NATO Summit. There, President Bush stated during his speech that the USA had suggested six initiatives for constitutional developments of the CSCE.57 The suggestions were included in the draft of the Declaration on a Transformed North Atlantic Alliance (“London Declaration”). According to paragraph 22 of this declaration, the countries of the North Atlantic Alliance recommended that the CSCE governments establish “a CSCE parliamentary body, the Assembly of Europe, to be based on the existing parliamentary assembly of the Council of Europe in Strasbourg (CoE) and include representatives of all CSCE member states.”58 The idea of establishing the OSCE PA met some obstacles in the beginning. The initial idea was to establish a parliamentary assembly on the basis of PACE. Although the USA initially proposed this idea, it never agreed to it. Any idea of the PACE’s possible role in relation to the new CSCE Assembly was blocked by the key CSCE pS, including the USA itself. In this regard, A. Bloed thought that the US

55

Stribis (2011). Charter of Paris for a New Europe, 1990. 57 Verbatim Record of the North Atlantic Council with the Participations of Heads of State and Government, 5th July 1990, C-VR (90)36, Part I, p. 12. 58 The Declaration on a Transformed North Atlantic Alliance was issued by the heads of state and government participating in the meeting of the North Atlantic Council in 1990. Available at: https:// www.nato.int/cps/en/natohq/official_texts_23693.htm? (26.04.2020). 56

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Administration did not want to grant the CoE an institutionalized place within the CSCE process.59 The most likely reason was that the important states of the CSCE (the USA, Canada, the USSR) were not member states of the CoE at that time.60 Later, it was decided that the CSCE would have a parliamentary dimension independent from any other international organization. However, the OSCE PA used the fact of its relations with the PACE as an argument for strengthening its own position in the organization. In the Resolution on Transparency and Further OSCE Reform: Reinforcement of Parliamentary Participation in the Organization,61 members of parliament mentioned that “six parliamentary CSCE conferences organized by the Inter-Parliamentary Union (Helsinki 1973, Belgrade 1975, Vienna 1978, Brussels 1980, Bonn 1986, Vienna 1991) for the creation of the OSCE’s parliamentary dimension . . . resulted in proposals to give the OSCE’s parliamentary dimension similar functions to the Parliamentary Assembly of the Council of Europe.” According to the Paris Charter, the Heads of State or Government decided that parliamentarians themselves had to “discuss the field of activities, working methods and rules of procedure of such a CSCE parliamentary structure, drawing on existing experience and work already undertaken in this field.”62 Consequently, the model of PACE was applicable during the establishment of the Parliamentary Assembly of the OSCE (OSCE PA). Later in Madrid, parliamentarians used the existing experience of the CoE but also of the EP and the North Atlantic Assembly.63 In April 1991, the final resolution concerning the establishment of the CSCE Parliamentary Assembly (also known as the Madrid Declaration) was agreed by consensus at the meeting of parliamentarians from the pS of the CSCE. The Madrid Declaration included a number of common rules of procedure and determined the size of delegations and their mandate. In addition, the parliamentarians decided to schedule the first annual session of the Assembly on 3–5 July of 1992 in Budapest. The Budapest Session was characterized by the adoption of the Budapest Declaration, the first elections64 and acceptance of the invitation from the Danish Parliament to locate the Secretariat in Copenhagen. The city has hosted the Assembly since then. Currently, the Assembly consists of 323 members from fifty-six national parliaments.65 The parliaments from the countries that signed the Helsinki Final Act and 59

Bloed (1993), p. 116. Oliver (1996), p. 43. 61 Para. 5, Resolution on Transparency and Further OSCE Reform: Reinforcement of Parliamentary Participation in the Organization, Astana Declaration 2008. 62 Charter of Paris for a New Europe, 1990. 63 Final Resolution Concerning the Establishment of the CSCE Parliamentary Assembly, Madrid, 2nd and 3rd April 1991. 64 Ilkka Suominen from Finland was elected as the new President of the CSCE Parliamentary Assembly. Also, delegates from Canada, Russia, Turkey and Hungary became vice-presidents. 65 The Holy See does not have a national parliament; hence, it may send two representatives to the meetings as guests of honor. 60

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the Charter of Paris are participating states of the OSCE that can be members of the OSCE PA.66 The members of the Assembly are appointed by their national parliaments.67 The composition of the Parliamentary Assembly and Rules of Procedure were changed several times during the 25 years of the Assembly’s existence. Initially, the number of seats for each country in the Assembly was determined in the Final Resolution of the Madrid Conference.68 Nowadays, the quotas can be found in the Appendix to the Rules of Procedure of the Assembly. The national parliamentarians from the countries that are OSCE Partners for Co-operation are admitted to the OSCA PA Assembly as observers. Also, the European Parliament (EP), Inter-Parliamentary Union (IPU), Inter-Parliamentary Assembly of the CIS (IPA CIS), NATO Parliamentary Assembly (NATO PA) and Parliamentary Assembly of the Council of Europe (PACE) have observer status.69 The main task of the Assembly is to facilitate inter-parliamentary dialogue among the OSCE participating States. The Assembly was established as an advisory and independent organ that combined parliamentarians from the CSCE pS. Initially, the parliamentary dimension was not included in the formal CSCE process. The same approach could be found in the North Atlantic Assembly.70 However, today the Assembly is involved in different areas of the OSCE’s activity. In accordance with the Assembly’s Rules of Procedure, it assesses the implementation of the objectives of the OSCE, discusses subjects addressed during meetings of the Ministerial Council and the summits of Heads of State or Government, develops and promotes mechanisms for the prevention and resolution of conflicts, supports the strengthening and consolidation of democratic institutions in the OSCE participating States and contributes to the development of the institutional structures of the OSCE and of relations and cooperation between the existing OSCE institutions.71 The MPs meet at least three times a year.72 The Annual Session convenes in July every year. It consists of meetings of the Standing Committee, the General Committees and plenary meetings of the Assembly. The OSCE PA meets for 5 days in one of the participating States. At the Annual Session, MPs elect the President, VicePresidents and Treasurer, adopt declarations and resolutions, and report on and discuss the timeliest issues. For instance, during the Session of 2016 in Georgia, MPs discussed and adopted resolutions on such issues as the rights of refugees,

66

Rules of Procedure OSCE PA, 29 July 2013. Rule 3, Rules of Procedure OSCE PA, 29 July 2013. 68 Article 1 of the Final Resolution Concerning the Establishment of the CSCE Parliamentary Assembly agreed at Madrid, 2nd and 3rd April 1991 (The Madrid Document). 69 Rule 44, Rules of Procedure OSCE PA, 29 July 2013. 70 Bloed (1993), p. 117. 71 Rule 2, Rules of Procedure OSCE PA, 29 July 2013. 72 In addition, Rules of Procedure includes the Mediterranean Forum, which is provided jointly with one of the other statutory meetings of the Assembly (Rule 14) and Extraordinary Sessions, which are convened by the President at the request of two-thirds of the members of the Standing Committee (Rule 15). 67

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challenges of migration, and integrating gender-based analysis and gender mainstreaming in the response to the migrant and refugee crisis. Since 2002, during the first 2 months of the year, usually in February, MPs of the OSCE PA gather for the Winter Meeting at the Hofburg Palace in Vienna.73 This meeting is the second largest event in the Assembly’s calendar. Parliamentarians have an opportunity to communicate directly with the OSCE’s high-level officials. In addition, hearing the presentations by the General Committee’s rapporteurs and discussion of ideas is a large part of the agenda. This helps the parliamentarians to familiarize themselves with the work of the Permanent Council of the OSCE and the Forum for Security Co-operation, as well as with the work of the Secretariat and other OSCE Institutions, before they draft their resolutions for the Annual Session. Finally, the Autumn Meetings of the parliamentarians take place in one of the OSCE participating or Partner States.74 The Meeting enhances the dialogue on important topics related to the OSCE commitments. The Autumn Meeting is usually combined with the Mediterranean Forum and different conferences. Winter and Autumn Meetings last no more than 3 days.

5.2.2

Structure

The main structural divisions of the OSCE PA are the Bureau, four Committees, and the International Secretariat. The Officers of the Assembly consist of the President,75 nine Vice-Presidents and the Treasurer. All are elected at the Annual Session by secret ballot. The President holds the office for 1 year. The Vice-Presidents serve 3 years. The President and Vice-Presidents may be re-elected only once to the same office. The Treasurer is elected for 2 years and can be re-elected twice to the same office.76 The President, Vice-Presidents and the Treasurer, together with the Officers of the three General Committees and the President Emeritus compose the Bureau. The Bureau is responsible for implementing the decisions of the Standing Committee, implementing the operation of the Assembly between Standing Committee meetings, and considering the preparation for the Annual Sessions, the Winter and the Autumn Meetings and for the Extraordinary Sessions.77 The Standing Committee includes the President, Vice-Presidents, and the Treasurer together with the Officers of the General Committee and the Heads of national Delegations. The Standing Committee prepares the work of the Assembly in

73

Headquarters of the OSCE is in Vienna, Austria. Rules 12, 13, Rules of Procedure OSCE PA, 29 July 2013. 75 George Tsereteli (Georgia) has been President of the OSCE Parliamentary Assembly since 9 November 2017. 76 Rule 5(6), Rules of Procedure OSCE PA, 29 July 2013. 77 Rule 6, Rules of Procedure OSCE PA, 29 July 2013. 74

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between its sessions. The Committee adopts resolutions, which will be sent to the OSCE Ministerial Council.78 The OSCE PA has three General Committees: 1. The General Committee on Political Affairs and Security; 2. The General Committee on Economic Affairs, Science, Technology and Environment; 3. The General Committee on Democracy, Human Rights and Humanitarian Questions. National Delegations nominate the Members of the Committee. To be a member of at least one General Committee is a requirement for parliamentarians. Every General Committee is served by its Bureau that consists of a Chair, Vice-Chair, and General Rapporteur elected from its Members. According to paragraph 7 of the Madrid Resolution Concerning the Establishment of the CSCE (OSCE) PA, “the Assembly will have a small permanent secretariat whose budget, resources, mode of operation and headquarters will be established by the Committee of Heads of Delegation.” Currently, the Standing Committee elects the Secretary General for 5 years on the proposal of the Bureau. The term can be prolonged twice by the Standing Committee. The present Secretary General is Roberto Montella (Italy). He was elected at the 2015 OSCE PA Annual Session in Helsinki and assumed his duties on 1 January 2016. In 2019, R. Montella was re-elected at the OSCE PA Standing Committee in Luxembourg for the second 5-year term, starting January 1, 2020. The rule of 5 years is a new one that explains why the term of the previous Secretary General, R. Spencer Oliver, was renewable more than twice, and he served the office more than 20 years from 1992 until 2015. Compared to other international parliamentary assemblies such as PACE, the OSCE PA International Secretariat does not have a large permanent staff; about twenty international specialists work there.

5.2.3

Budget

The Madrid Resolution stipulated that the Assembly’s budget was under the control of the Committee of Heads of Delegations.79 Currently the Standing Committee approves the budget. The Treasurer, with the assistance of the Secretary General, presents the budget proposal to the Committee. According to Rule 41(4) of the Rules of Procedure, and Article 10 of the Madrid Declaration, national contributions to the

78

Rule 35, Rules of Procedure OSCE PA, 29 July 2013. Para. 6 of the Final Resolution Concerning the Establishment of the CSCE Parliamentary Assembly. Madrid, 2–3 April 1991. 79

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budget of the Assembly shall be apportioned according to the formula used to divide the costs of the intergovernmental OSCE.80 In 2015 at the Helsinki Annual Session, the Assembly adopted the Resolution on Modernization of the System of National Contributions to the OSCE Budget. Parliamentarians considered that the budget of the OSCE Parliamentary Assembly was not sufficient to ensure completion of all the tasks the Assembly was bound to perform.81 It was stressed that the modernization process should be driven by the principle of capacity to pay, while taking into account the economic realities of the participating States. Also, the criteria of gross national income was the basis for calculations. The MPs suggested amending Rule 41(4) of the OSCE Parliamentary Assembly’s Rules of Procedure to allow for appropriate exceptions from the governmental formula and to contribute a minimum fixed-sum amount of EUR 10,000.82 The budget covers the Assembly’s expenses related to its main activities, such as holding the Annual Sessions and the Winter and Autumn Meetings, election observation and the costs of the International Secretariat in Copenhagen and the Liaison Office in Vienna. The Danish Parliament provides the Secretariat with office facilities free of charge. The Standing Committee approves the budget for the next year83 at the Annual Session in July every year. For instance, it unanimously approved the 2015–2016 budget in the amount of EUR 3,102,000 at the 2015 Annual Session in Helsinki. The size of the budget for the 2016–2017 fiscal year was EUR 3,161,000. Compared to the other international assemblies, the budget of the OSCE PA is the smallest.

5.2.4

Relation with the Parent Organization

5.2.4.1

Status of the OSCE PA

As was discussed above, the OSCE PA initially was established as an independent body in the OSCE structure. In accordance with the OSCE Rules of Procedure, Rule II, C.3 “The Parliamentary Assembly of the OSCE (OSCE PA), as an autonomous OSCE body which is composed of members of parliament from the OSCE

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Participating States adopted the scale of distribution for determining the contributions to the adopted budget, including any adjustments in Chapter XII, Paras 3 and 4 of the Helsinki Document 1992. According to this scale, contribution percentages range from 0.15% for such countries as the Holy See, Liechtenstein, Malta and San Marino to 9% for France, Germany, Italy, the Russian Federation, the United States and the United Kingdom (See: W. Deutsch, “Financing of the OSCE” in OSCE Yearbook 1998, p. 398). 81 Para. 7 of the Resolution on Modernization of the System of National Contributions to the OSCE Budget, Annual Session in Helsinki, July 2015. 82 Ibid., paras 10, 11, 12, 13. 83 Fiscal period is from 1 October to 30 September.

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participating States and maintains close relationships with other OSCE structures, determines its own rules of procedure and working methods”84 (emphasis added). In 2017, Austria signed the Headquarters Agreement with the OSCE, whereby, according to Article 1 (sec.1, lit b.) “‘OSCE’ shall refer to the Organization for Security and Cooperation in Europe, composed of its structures, including the OSCE Parliamentary Assembly” (emphasis added). Some authors consider that the Assembly is not a part of the OSCE, but “an independent body consisting of parliamentarians from the OSCE member states.”85 The following scheme demonstrates this position.

The OSCE PA is not a part of the OSCE.

OSCE PA

OSCE

The overlapping of the circles here means cooperation between the assembly and the OSCE. However, the Assembly (the parliamentary part of the OSCE) was initially established because of the will of participating States (the governmental part of the OSCE) to serve the values and aims of the OSCE. In the scheme, common values and aims are missing. If the OSCE PA is an independent structure, providing only a forum for parliamentarians’ debates, it means that it can have its own aims, scope and scale of activity without any relevance to the OSCE. However, the OSCE PA always stays within the framework of OSCE activity, as demonstrated in the scheme below. Moreover, the OSCE pS agreed in the Madrid Document “to establish within the framework of the Conference on Security and Cooperation in Europe a Parliamentary Assembly.”

84

MC.DOC/1/06 of 1 November 2006. For example, B. Habegger, Democratic Control of the OSCE: The Role of the Parliamentary Assembly, Helsinki Monitor, Vol. 17, 2006, Issue 2, pp. 133–143. 85

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The OSCE PA is a part of the OSCE. OSCE

OSCE MPs

OSCE pS

The circle of the OSCE members of parliament (MPs) and OSCE participating States (pS) represent the parliamentary and the governmental parts of the OSCE. Both parts act and cooperate with each other under the same aims and values within the OSCE frameworks and were established according to the same will of governments. The following scheme demonstrates the place of the Assembly within the OSCE structure. The OSCE can be separated into the governmental and parliamentary parts, where each of the parts includes its institutional structure.

5.2 OSCE Parliamentary Assembly

5.2.4.2

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Travel Ban for the Parliamentarians of the Assembly

At first glance, it is obvious that the OSCE PA is not outside the OSCE structure, and is included in the family of the OSCE institutions. Therefore, all international rules and exemptions for the OSCE apply to the OSCE PA, too. However, in 2015 before the Annual Session in Helsinki, there was an issue regarding the impossibility for a group of MPs from the Russian Federation to participate in the meeting because of the EU travel ban list. This case also raised a question concerning applicability to the OSCE PA of the exemption provided by the EU law for the OSCE.

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On 17 March 2014, the Council of the European Union adopted Decision 2014/ 145/CFSP86 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine by the Russian Federation and imposed travel restrictions on some high-ranking Russian officials, among whom were MPs of the OSCE PA. According to Article 1(3) of the EU Council Decision, four exceptions may be applicable to the general rule on travel restriction if the EU Member States are bound by obligations under international law: (a) as a host country to an international intergovernmental organization; (b) as a host country to an international conference convened by or under the auspices of the United Nations; (c) under a multilateral agreement conferring privileges and immunities; or (d) under the 1929 Treaty of Conciliation (Lateran pact) concluded by the Holy See and Italy. These exceptions are explicitly applicable to the OSCE. Pursuant to Article 1(4), “paragraph 3 shall be considered as also applying in cases where a Member State is host country to the Organization for Security and Cooperation in Europe (OSCE).” In this regard, a question appeared about the status of the OSCE PA and the applicability of this exception to the Assembly. Finland, as the country chosen for the Annual Session of the OSCE PA in 2015 was not sure whether to provide Russian officials with entrance visas, because, although they were members of the Assembly, they also were under the travel restriction, according to the EU legislation. Even the status of Finland as a “host country to an international intergovernmental organization” was not clear. From the international law point of view, this case could be solved in the following way. The first step is to determine the meaning of “host State” and its applicability. According to the 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character, Article 1(15) “host State” means the State in whose territory: (a) the Organization has its seat or an office, or (b) a meeting of an organ or a conference is held.” On the one hand, this provision is not directly applicable because Finland has neither signed nor acceded to the 1975 Vienna Convention. Moreover, the Convention is not yet in force. On the other hand, the Convention drafted by the International Law Commission was made to clarify and codify the existing practice at the request of the UN General Assembly. It was adopted at a UN Conference. There is a certain weight that can be given to it as a point of reference if States wish to. Consequently, if the 1975 Vienna Convention definition is applied, Finland “would qualify as a host country to the OSCE” in terms of Article 1 (3)(lit. a) and (4) of the EU Council Decision 2014/ 145/CFSP.

86

OJ L 78, 17.3.2014, p. 16. See also: Council Decision 2014/512/CFSP of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilizing the situation in Ukraine, Preamble (2), OJ L 229, 31.7.2014, p. 13.

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The second step is the applicability of the status of “international intergovernmental organization” to the OSCE. As was discussed before (Sect. 1.1 and Sect. 5.1.4), the OSCE is not recognized as an IGO in the strict sense of international law. It is considered as a political organization with the characteristics of an IGO established under soft law. However, the above-cited European Council Decision 2014/145/CFSP specifies directly that it shall be applied without prejudice to the cases where the EU Member States are bound by OSCE commitments.87 The last step is the determination of the status of the OSCE PA as a body of the OSCE. As discussed above, according to the Charter of Paris for a New Europe, Heads of State or Government participating in the CSCE called for greater parliamentary involvement in the CSCE through creation of the parliamentary assembly. In the Helsinki Summit Document 1992, Heads of State or Government participating in the CSCE declared, “We welcome the establishment of the CSCE Parliamentary Assembly [. . .] and look forward to the active participation of parliamentarians in the CSCE process.”88 In the above-mentioned OSCE Rules of Procedure, Rule II. C.3 states that the OSCE PA is “an autonomous OSCE body which is composed of members of parliament from the OSCE participating States and maintains close relationships with other OSCE structures, determines its own rules of procedure and working methods.” Under “close relationships” should be considered: participation of the OSCE PA in the meetings of the Ministerial Council, the annual presentation of the OSCE draft budget proposal to the Standing Committee of the PA and the comments by the PA on the Draft Budget, the dialogue between the PA President and the Permanent Council in Vienna on the Declarations of the Annual Assemblies, the participation of PA Representatives in all formal and informal open-ended meetings of the OSCE, the joint operations of the PA and the ODIHR in election-monitoring, the involvement of the PA in the work of the field missions.89

Hence, the OSCE PA is in close cooperation with the OSCE executive structures under the framework of the Helsinki process. Therefore, the reference to the OSCE in the EU Council Decision should be understood in broader terms, including all OSCE institutions and other executive structures and bodies which operate under the OSCE framework. However, the Government of Finland solved this “visa case” mainly from the political point of view without taking into account any general international definitions and consideration of relationships between the OSCE governmental and parliamentary divisions. The main reason for this decision was that Finland requested advice from the EU Member States regarding the entitlement for entrance to Finland of the Russian MPs from the EU ban list. The EU countries were against

87

Article 1(3)(4). Para. 41, CSCE Helsinki Document 1992 “The Challenges of Change.” 89 Para. 5, Kyiv Declaration of the OSCE Parliamentary Assembly and Resolutions Adopted at the Sixteenth Annual Session. 88

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it; hence, Finland was obliged to accept the position, so the visa request for parliamentarians from Russia was denied. This decision led to an extensive debate in the Standing Committee of the OSCE PA that year. Both sides in favor of providing visas to the blacklisted parliamentarians and against the decision were unanimous that it was important to continue an open dialogue on resolving the crisis in Eastern Europe. The former OSCE PA President Ilkka Kanerva expressed his opinion that the Assembly needed “to address the EU to reconsider the rules so the OSCE PA can continue to promote a political dialogue and mutual contacts . . . So that parliamentarians can get together from every member country freely.” The American delegation also proposed some sort of solution, and expressed its opinion that the Government of the Russian Federation could have sent representatives that were not blacklisted, but instead, it decided not to send them at all.90 However, in this particular case, it probably would have been better to listen to persons who were on the list and supported publicly the position of the Russian Government, to understand their position better in order to find approaches for constructive and open dialogue. Later, in 2016, the Parliamentary Assembly during the Annual Session adopted the Resolution on Unrestricted Access of Members of the OSCE Parliamentary Assembly Attending Official OSCE Events and Other Parliamentary Activities.91 In the resolution under paragraph 12, MPs requested the OSCE participating States “to abide by their commitment to guarantee to all members of the Parliamentary Assembly the freedom to attend any official OSCE events and other parliamentary activities by issuing any visas or travel permits required for entry into their territories for at a minimum the duration [. . .], unless otherwise contrary to the principles of international law.” In this case, the OSCE’s Secretariat supported the OSCE PA. However, it could not do this officially because of political and diplomatic relations with the participating States; therefore, it could not significantly affect the situation. The OSCE and the OSCE PA have a common goal of promoting the rule of law, security, democracy and respect for human rights. Nevertheless, the OSCE PA has been challenged for many years as regards strengthening its cooperation with the parent organization.

5.2.4.3

Participation in the Decision-Making Process

Since 1999, the OSCE PA has started to actively promote strengthening its own role in the work of the decision-making processes of the OSCE. For example, the

“Finland Denied Russian Lawmakers’ Visas after EU Consultations - OSCE PA.” Available at: http://sputniknews.com/politics/20150705/1024231414.html (14.07.2016). 91 Tbilisi Declaration and Resolutions adopted by the OSCE Parliamentary Assembly at the TwentyFifth Annual Session, 1 to 5 July 2016. 90

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Assembly has pointed out that the European Parliament has wide powers in overseeing the European Commission’s activity, as well as PACE, with its opportunity to provide the Committee of Ministers with its opinion and elect the Secretary General, his/her Deputy, and Judges of the European Court of Human Rights (ECtHR).92 The Assembly stressed that because of the relations between the OSCE and the OSCE PA, the organization was lagging behind these international organizations in regard to transparency and accountability.93 Starting with the Annual Session in St. Petersburg in 1999, the Parliamentary Assembly has regularly proposed different ways of strengthening cooperation with the OSCE. In the St. Petersburg Declaration 1999, the Assembly proposed the following to the OSCE: 1. to oblige the Ministerial Council to ask the opinion of the OSCE PA before making decisions; 2. to approve the OSCE Secretary General by a majority of the MPs of the OSCE PA; 3. to report on the activity and budget of the OSCE Institutions to the OSCE PA; 4. to submit written questions of the OSCE PA to the Chairman-in-Office. Also, in the Paris Declaration 2001, it proposed: 1. the obligation for the Ministerial Council to take the opinion of the Parliamentary Assembly into account before making major decisions; 2. regular consultation among all OSCE institutions and information exchange; 3. the availability of the report of the OSCE’s external and internal auditors to the OSCE PA in a timely manner; 4. appointing the ad hoc Committee to monitor the implementation of the resolution and to promote transparency and accountability of the OSCE.94 In the Edinburgh Declaration 2004, the Assembly requested and called for: 1. free access for the OSCE PA to all OSCE meetings and events and inclusion of an OSCE PA representative in the consultative process; 2. establishing a working group by the OSCE PA President on the OSCE budget; 3. a response by the OSCE to the Assembly’s recommendations on the draft OSCE budget. In 2006, the Assembly decided to make another attempt to draw the attention of the OSCE to the budget issue. The President of the PA appointed a special 92

Paras 5, 4 of the Resolution on Correcting the Democratic Deficit of the OSCE, St. Petersburg Declaration of the OSCE PA, 10 July 1999. 93 Para. 5, Resolution on Co-operation between the OSCE and OSCE PA, Edinburgh Declaration 2004. 94 In accordance with Rule 35.5 of the OSCE PA’s Rules of Procedure: “The Standing Committee may appoint ad hoc Committees for specific purposes, prescribing their term of office, composition and mandate.”

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representative on the OSCE budget. His mandate included gathering information and following budgetary developments in the OSCE governmental structures, acting as a focal point for assembly recommendations on political and management questions related to the OSCE budget, encouraging discussion within the OSCE PA on the effective use of OSCE budgetary resources. Usually, the special representative provides the Assembly with the report at the annual winter meeting.95 In the Kyiv Declaration 2007, the Assembly called for the implementation of the recommendations provided in the Report of the 2005 Washington Colloquium on the Future of the OSCE.96 In the Astana Declaration 2008, the Assembly repeated that: 1. the OSCE PA should be involved in the OSCE decision-making and consultation process, 2. the OSCE PA should have access to all OSCE internal information, 3. the OSCE budget should be approved by the OSCE PA and requested: 1. a better use of the Assembly by participating States as a key element in the organization’s efforts to be credible in promoting democracy, 2. discussion and taking into consideration the initiatives of the Assembly by the Permanent Council of the OSCE. In the Vilnius Declaration 2009, the Assembly urged the OSCE to engage independent external auditors to oversee the disbursement and expenditure of all funds within the OSCE. These auditors would report directly to the Chairmanship Troika and the President of the OSCE PA. In the Oslo Declaration 2010, the Assembly invited: 1. the Ministerial Council to examine possibilities of involving the OSCE PA in the Annual Security Review Conference97 and the Permanent Council to examine the possibility of cooperation with the Assembly regarding operational initiatives, workshops and training projects organized within the Annual Security Review Conference framework;98

95

For example, Report of Petur H. Blondal, Special Representative on the OSCE Budget, for the OSCE PA Winter Meeting, Vienna, 18–20 February 2015. 96 The document summarized the structural problems of the OSCE and provided recommendations for their solutions. Some of the recommendations were to increase the roles of the ODIHR and the OSCE PA and to ensure the independence of the OSCE election observation. Also, it was proposed to increase the role of the OSCE PA through political initiatives such as organizing “fact finding missions” and facilitating negotiations. 97 The Annual Security Review Conference (ASRC) was established by the 2002 OSCE Ministerial Council in Porto in order to promote and strengthen security dialogue among the participating states and review the organization’s work in the security area. 98 Paras 19, 20 of the Resolution on Strengthening the Involvement of the OSCE Parliamentary Assembly in the Corfu Process on Security in Europe, Oslo Declaration 2010.

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2. the OSCE Chairperson-in-Office, the OSCE participating states and the OSCE governmental structures to respond to the OSCE PA’s recommendations and to make better use of the special representatives and ad hoc committees of the OSCE PA in the field of conflict prevention and crisis management.99 In the Istanbul Declaration of 2013,100 the Assembly summarized its last year’s opinion on cooperation with the OSCE, its functions within the organization’s framework and the proposals of the OSCE PA regarding the necessary reforms for the OSCE. Technically, it reiterated everything it had declared for the last 14 years. The OSCE PA asked for: 1. approval of the OSCE budget and confirmation of the Secretary General; 2. approval of the annual accounts of the OSCE institutions; 3. hiring the external auditor for the OSCE Institutions by a Standing Committee of the OSCE PA by the Assembly; 4. formal entitlement of the Assembly to oversee all OSCE institutions and possibly to organize fact finding missions by the Assembly; 5. close association with the OSCE decision-shaping and decision-making bodies and the Secretariat; 6. improvement of the MP’s capacity to report about OSCE issues and policies in their national parliaments. For all these years, the OSCE PA was the only OSCE body that had been advocating for an increase of accountability arrangements within the organization.101 In 2016, the Parliamentary Assembly adopted the Tbilisi Declaration, where it did not repeat the same statements regarding the strengthening of its role in the OSCE. It appears that a new strategy was chosen. The Assembly asked “to develop, in co-operation with the OSCE executive structures, an action plan on how the OSCE PA and the executive structures can work more closely together, inter alia, on the three dimensions of the OSCE . . . to the benefit of both sides.”102 To sum up, the OSCE PA has demonstrated for many years to the governmental part of the OSCE that it has the right to be actively involved in the activities of the OSCE and to be heard, just as any other OSCE institution. Some results were achieved. Currently, the OSCE PA participates in the meetings of the Ministerial Council; the OSCE annually presents the budget proposal to the Standing Committee of the Assembly for the MPs to comment on. Moreover, the PA President and the Permanent Council in Vienna have established a dialogue on the declarations of the

99 Paras 10, 11 of the Resolution on Strengthening the Role, Efficiency and Impact of the OSCE PA, Oslo Declaration 2010. 100 Particularly seen in the Resolution on Enhancing Trust, Transparency and Accountability within the OSCE Institutions, Istanbul Final Declaration 2013. 101 Moser (2019), p. 274. 102 Para. 12, Resolution on Strengthening Relations between the OSCE PA and the OSCE, Tbilisi Declaration 2016.

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OSCE PA annual assemblies. The Assembly’s representatives receive an opportunity to participate in all OSCE formal and informal open-ended meetings. MPs are involved, together with the ODIHR, in joint election observation activity and in the work of the field missions.103 Nevertheless, the fact that the OSCE has been demonstrating a democratic deficit for many years becomes obvious after close scrutiny of the relations between the organization and its parliamentary assembly.

5.2.4.4

Consensus Rule

The OSCE PA often criticizes the OSCE for lack of democratic accountability and transparency in the decision-making process. One of the main reasons for criticism is the decision-making procedure of the governmental part of the OSCE—the consensus rule. According to the Rules of Procedure of the OSCE, part II(A)(2),104 consensus is “the absence of any objection expressed by a participating State to the adoption of the decision in question.” Paragraph 3 of the same article specifies that “Any texts, which have been adopted by a decision-making body by consensus, such as decisions, statements, declarations, reports, letters or other documents, shall hereinafter be referred to as OSCE decisions or OSCE documents. Such documents shall have a politically binding character for all the participating States or reflect the agreed views of all the participating States.” In other words, a participating State might not agree with the politically binding decision, but still not object to the adoption of the decision. In the report by the colloquium “The Future of the OSCE,” the Assembly specified that the consensus rule concerning the budget, personnel appointments (for example, the Secretary General or Heads of Institutions) and general administrative issues needed modification. In addition, the decision-making process should be the more transparent. For instance, the Permanent Council meetings might be more open for the press and the public. Usually, the chairperson asks the press to leave the room after the official part is over, for example, after addressing the highranking authorities and guests, or after the reports of the Heads of the OSCE institutions. The Assembly also considered that participating States should only be able to prevent consensus openly and publicly.105 Currently, the discussions of the decisions by participating States are closed for the press and the public. Hence, the participating States express their objections behind closed doors, or they may communicate through internal channels with the Chairmanship in writing and

103

Para. 5 of the Resolution on the Role and the Status of the Parliamentary Assembly within the OSCE, Kyiv Declaration 2007. 104 The document is available at: https://www.osce.org/mc/22775?download¼true (02.06.2018). 105 Report by the Colloquium on “The Future of the OSCE,” A Joint Project of the OSCE Parliamentary Assembly and the Swiss Institute for World Affairs, Washington, 5–6 June 2005, p. 8., OSCE Yearbook 2005, pp. 381–388.

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provide their objections or proposed amendments to the draft proposal of the decision before the expiration of the silence period.106 Usually, “OSCE decisions are adopted at meetings of decision-making bodies or, if so determined by consensus, through the application of a ‘silence procedure’—the procedure for adoption of documents in the periods between meetings of a decision-making body.”107 The Assembly considers that the consensus rule, which was established for the CSCE/OSCE in the Blue Book,108 significantly “limits the potential of the OSCE.”109 For instance, the consensus rule did not allow the OSCE to respond immediately to prevent the escalation of the situation during both of the crises in Yugoslavia and the Ukraine. In the Yugoslavia case, for the first time, the exception was applied to the consensus rule—the consensus minus one.110 It was made to suspend Yugoslavia from the CSCE.111 The decision was adopted at the thirteenth meeting of the Committee of Senior Officials.112 The only way for the organization was to make an exception to its own rules for the purpose of condemnation of that member and seeking actions to de-escalate aggression in the former Yugoslavia. Hence, in this case, the OSCE was unable to react swiftly to the crisis, because the participating State which was supposed to take a part in the decision-making process was at the center of the conflict. It was not possible for the organization to move forward if the consensus rule was applicable in the situation. In this case, the danger of endless negotiations and paralysis of decision-making appeared to be very serious. So far, the consensus minus one rule has been applied only once, in the Yugoslavia case (against Serbia and Montenegro).113

106

Para. 4, Annex I, MC.DOC/1/06 of 1 November 2006. Manual for Supporting the OSCE Chairmanship, Office of the OSCE Secretary General, Fourth Edition, October 2014, p. 23. 108 In accordance with the Blue Book 1973, Rule 6(69), the initial definition of “consensus” was “the absence of any objection expressed by a Representative and submitted by him as constituting an obstacle to the taking of the decision in question.” 109 Oliver (1996), p. 47. 110 The rule of the consensus minus one was proposed to provide flexibility in the general consensus rule. According to the Prague Document on Further Development of CSCE Institutions and Structures, adopted on 30 January 1992 at the second meeting of the CSCE Council, part IV, para. 16 states: “appropriate action may be taken by the Council or the Committee of Senior Officials, if necessary in the absence of the consent of the State concerned, in cases of clear, gross and uncorrected violations of relevant CSCE commitments. Such actions would consist of political declarations or other political steps to apply outside the territory of the State concerned. This decision is without prejudice to existing CSCE mechanism.” This statement became known later as “consensus minus one.” 111 OSCE Handbook 1975–2000, p. 29. 112 13-CSO/Journal No. 7, Annex 1. See also the 40 Helsinki Final Act 1975-2015, OSCE (2015), p. 39. 113 Beginning from November 2000, the Federal Republic of Yugoslavia consisted of two republics: Serbia and Montenegro. The referendum regarding separation took place in Montenegro on May 107

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Another example is the Ukrainian case, where the consensus rule almost became an obstacle for the adoption of the Decision on Deployment of an OSCE Special Monitoring Mission to Ukraine (OSCE PC Decision No. 1117) in 2014. The decision was discussed for several weeks and consensus could not be found because of the opposition of one participating State to the formulation of provisions in the text. Therefore, the possibility to apply the exception to the consensus rule was proposed by other participating States. However, it was a politically unpopular measure and it was not supported by the majority of the participating States, and the idea to apply consensus minus one was rejected. Consensus was finally found and the decision was adopted. To sum up, this particular decision-making process took a lot of time, because of the need to reach consensus. It can be noted that sometimes participating States use consensus as an instrument, if not to prevent a decision, at least to significantly delay its adoption. In 2016 and 2017, the consensus rule became the main obstacle for the appointment of individuals for two special OSCE envoy positions: the High Commissioner on National Minorities and the Representative on Freedom of the Media. One of the participating States criticized the offices for “double standards” in their activity. Therefore, it objected to the appointment of candidates to the positions. As a consequence, these two high positions of the OSCE remained vacant for more than half a year.114 Some authors consider that the adoption of decisions by majority vote is a good option in case of the real danger of paralyzing the adoption of a crucial decision, which is inherent in the consensus rule.115 However, according to R. S. Oliver, the former Secretary General of the OSCE PA, the application of “a majority vote system in the OSCE would be both unrealistic and undesirable” from the perspective the participating States.116 Despite the fact that the consensus minus one once helped to avoid a decisionmaking obstacle, the OSCE PA is against using this exception, as well as against using consensus. As an alternative to the consensus rule, the Assembly proposed a procedure of the “approximate consensus”—“a rule requiring a consensus of 90% of both membership and financial contributions.”117 The OSCE PA considers that no individual participating State, including key players, has the possibility of veto using

2006 in Montenegro. Hence, Serbia retained the seat at the OSCE. On 22 June 2006, Montenegro was admitted as the 56th participating State. 114 On18 July 2017, the OSCE Ministerial Council adopted by consensus the decisions to appoint the following senior-level officials: Thomas Greminger (Switzerland) as the OSCE Secretary General; Ingibjörg Sólrún Gísladóttir (Iceland) as the Director of the OSCE Office for Democratic Institutions and Human Rights; Lamberto Zannier (Italy) as the OSCE High Commissioner on National Minorities; Harlem Désir (France), as the OSCE Representative on Freedom of the Media. 115 Schermers and Blokker (2011), p. 535. 116 Oliver (1996), p. 47. 117 Vienna Declaration 1994, Resolution on Political Affairs and Security.

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this formula.118 The approximate consensus would require a minimum of six participating States to paralyze the decision-making process of the OSCE. The logical explanation and above-provided examples demonstrate the weakness of the consensus rule in the decision-making process of the OSCE. However, this question is disputable and hardly acceptable for the Permanent Council of the OSCE. The major part of the OSCE PA’s resolutions include recommendations regarding the abolishment or reformation of the consensus rule, and, as a consequence, it creates the impossibility of achieving agreement on their text between the parliamentarian and governmental parts of the OSCE.119

5.3

OSCE PA Activities

Since its establishment, the OSCE PA has played a significant role and taken a distinctive place in the OSCE structure. At the Istanbul Summit in 1999, the Heads of State or Government of the OSCE participating States agreed that the Assembly “has developed into one of the most important OSCE institutions continuously providing new ideas and proposals” and welcomed the “increasing role, particularly in the field of democratic development and election monitoring.”120 Rule 2 of the Assembly’s Rules and Procedures lists the main responsibilities of the Assembly: • to assess the implementation of the objectives of the OSCE; • to develop and promote mechanisms for the prevention and resolution of conflicts; • to contribute to the development of the OSCE’s institutional structures and to foster relations and cooperation between them. The difference between the CoE and the OSCE is that the OSCE takes a comprehensive security approach to human rights issues and the CoE’s approach is based more on setting legally binding standards.121 The OSCE has to be flexible, due to its lack of legal personality. Its main instruments are non-legally binding documents. However, these instruments have an advantage. They allow participating States to agree quickly on norms without strict scrutiny of the text of a document because it does not have any legal effect. This flexibility allows the OSCE to react fast. For instance, during the Yugoslav Wars, the OSCE drafted a comprehensive set of standards (the Copenhagen Document) in the field of human rights, including minority protection. These political commitments served as basis for the drafts of a number of significant documents,

118

Oliver (1996), p. 48. Nothelle (2006), p. 358. 120 Para. 17, Istanbul Document, January 2000/Corr. 121 Uhl and Knoll (2009), p. 438. 119

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such as the legally binding Framework Convention for the Protection of National Minorities (1995) drawn up by the Council of Europe, and the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992).

5.3.1

OSCE PA and Protection of National Minorities

The issue of national minorities was one of the main highly discussed questions at the beginning of the 1990s. In July 1992, the parliamentarians of the OSCE PA discussed the national minorities issue at the first annual meeting of the Assembly in Budapest. The Budapest Declaration of the OSCE PA (1992) stipulates that “aggressive nationalism, violation of minority rights, uncontrolled armed forces and the enormous difficulties accompanying the transition to market economy threaten the stability in the CSCE area and our objective to bring peace, democracy and prosperity to it.” The proposal for establishment of an office of a High Commissioner on National Minorities of the CSCE was welcomed by the parliamentarians. These intense debates over the national minorities question were highly productive and led to the establishment of a High Commissioner on National Minorities (HCMN) by the participating States at the Helsinki Summit, which took place right after the OSCE PA meeting in Budapest.122 From the beginning of the establishment of the HCNM, the OSCE PA has supported its activities. The Commissioner, in turn, regularly addresses the OSCE PA on its activities at the meetings of the Assembly. In 2016, the President of the OSCE PA publicly supported the reappointment of Astrid Thors for a second term as the High Commissioner for National Minorities of the OSCE. However, A. Thors did not seek reappointment because one of the participating States expressed displeasure with the idea of a second term and could block the possibility of reappointment due to the consensus rule.123 A. Thors always stressed in her speeches to the OSCE PA that the HCNM’s early warning and fast action abilities to respond to crisis situations is not possible without the support and cooperation of the participating States. It can be possible under the condition of open and direct dialogue, and parliamentarians have an important role to play in this regard by keeping governments accountable. Indeed, regular

122

The High Commissioner on National Minorities of the National Minorities was established by the Helsinki Decisions on Strengthening CSCE Institutions and Structures at Helsinki Summit on 9–10 July 1992. 123 The Russian Federation expressed its displeasure regarding the re-appointment of Astrid Thors. The main reason was that after the official visit of Ms. Thors to Crimea in 2014 she said in the press release issued on March 6, 2014 that the HCNM did not find violations of the rights of Russians in Crimea and that those who took pro-Ukrainian position, particularly Crimean Tatars were under threat and needed of protection. Later this statement was included into the joined HCNM ODIHR Report on the Human Rights and Minority Rights Situation of 12 May 2014, p. 79.

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intercommunication between the Office of the HCNM and the PA facilitates better assessment of the national minority issue by parliamentarians and the performance of the duties of the OSCE PA.

5.3.2

Monitoring of Fulfilling OSCE Commitments by pS

Keeping participating states accountable is one of the main and most difficult tasks for any international parliamentary assembly. For the OSCE PA, the situation is even worse. Since its establishment, the OSCE PA has had a very weak position in the OSCE’s institutional system. It was not given any opportunity to be involved in the decision-making process. The Assembly only has a consultative role, one where the decision-making bodies are not obliged to respond to a request of the Assembly. The OSCE PA has a free hand to make suggestions on all aspects of OSCE activity, however, these suggestions and opinions lose the main part of their significance because participating States and OSCE institutions do not have any obligation to act upon them. In the beginning, the main activity of the Assembly was criticizing the other OSCE structures. This method usually is not an efficient one. Later, the OSCE PA found more effective ways to be heard by the participating States and the OSCE itself. Among the traditional functions of international parliaments, as deliberative bodies, is the ability to constrain the executive power of the states to act according to their international obligations. For this purpose, parliamentarians check whether that state has fulfilled its obligations. The OSCE PA does so in the following ways: • cooperation with the OSCE field missions and offices, • addressing crisis/conflicts and sensitive issues (e.g., fighting terrorism, human trafficking, human rights violations, political detention) in the OSCE area, • observing national election processes in participating States. The following discussion relates to the first and second methods listed above. The third method will be closely studied in detail in Sect. 7.1, regarding election observation of the OSCE PA and its cooperation with other participants in this activity.

5.3.2.1

Cooperation with the OSCE Field Missions and Offices

The OSCE PA has an advantage compared to PACE—a presence on the ground, particularly in Central Asia and Eastern Europe. The Assembly has the opportunity to collect information directly via participation in OSCE field operations. Regularly, the Assembly organizes meetings with the representatives (e.g., Heads of Missions). Usually, they take place at the Autumn Meeting of the OSCE PA in the form of

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roundtables, conferences or statements by the representative of the particular field office.124 In 2015, the OSCE Parliamentary Assembly and the OSCE Centre in Ashgabat held a seminar for the Turkmen MPs on parliamentary activities. Lawmakers from Turkmenistan discussed activities of the OSCE PA and opportunities to deepen their engagement in its work. The event contributed to enhanced involvement of Mejlis (the Turkmen Parliament) members in the PA's activities, and, as a result, strengthened cooperation between the Mejlis and parliaments of the other OSCE countries.125 Regularly, the OSCE PA sends its representatives to the areas of actual or potential conflicts. The Assembly provides political support to the Organization’s work in the field through annual declarations and appropriate political interventions. As a body, the Assembly keeps careful watch on adequate funding and effective mandates of the OSCE field presences. In its Baku Declaration of 2014, the OSCE Parliamentary Assembly called for the OSCE to “adopt full, effective, and long-term mandates for OSCE field operations,” reiterating similar previous appeals. Currently, parliamentary support is essential for the field presence of the OSCE because of the threat hanging over it. At the end of 2016, the OSCE had seventeen field operations. The mandates of the OSCE’s field operations in Armenia, Tajikistan, Kyrgyzstan and Uzbekistan all expired on 31 December 2016 without further agreement on their extension. Unfortunately for the OSCE, these events prove the words of Christine Muttonen, former OSCE PA President, that the OSCE is only as strong as its participating States allow it to be.126

5.3.2.2

OSCE PA Addressing Crisis/Conflicts in the OSCE Area

The Assembly is tasked to provide security management only by its own Rules and Procedures (Rule 2c). The OSCE PA has not been tasked per se with conflict management. The Charter of Paris 1990 does not contain relevant references. The document on the OSCE PA establishment—the Madrid Declaration 1991—provides only general stipulations that the Assembly can “assess the implementation of the objectives of the CSCE,”

124

For instance: South East Europe Round Table in 2016 in Skopje, Republic of Macedonia, in which representatives of the field operations in Albania, Skopje, Serbia, Montenegro, Bosnia and Herzegovina, Kosovo participated; Round Table with Heads of the OSCE Central Asia Field Operations (Kazakhstan, Kyrgyzstan, Tajikistan) in 2015 in Ulaanbaatar, Mongolia; Conference on Regional Development in South East Europe in 2011 at the Fall Meeting in Dubrovnik, Croatia. 125 PA.PR/2/15, 15 April, “OSCE Parliamentary Assembly, Centre in Ashgabat hold seminar for Turkmen MPs on parliamentary activities.” 126 Press release is available at: https://www.oscepa.org/parliamentary-diplomacy/helsinki40/ project-news/press-releases/2016/2509-osce-parliamentary-assembly-special-representative-holdshigh-level-meetings-in-kyrgyzstan-delivers-speech-at-osce-academy-on-conflict-prevention (05.07.2018).

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“discuss subjects addressed during the meetings” of the Ministerial Council (MC) and the CSCE/OSCE Summits, and generally “initiate and promote whatever measures may further cooperation and security in Europe.” In 2016, the Assembly issued a Resolution on “Possible Contributions of the OSCE Parliamentary Assembly to Developing Effective Response to Crisis and Conflicts.’127 The Assembly’s activity in the crisis/conflict management area was admitted also by the Ministerial Council of the OSCE. In the 2003 MC Decision on “OSCE Strategy to Address Threats to Security and Stability in the Twenty-First Century,”128 it was stressed that “the overall capacity of OSCE to identify, analyze and take coordinated action in response to threats needs to be further consolidated.. . . The early warning and conflict prevention activities of the OSCE Parliamentary Assembly represent a valuable contribution to these efforts.” In 2011, participating States tasked the Secretary General under the MC Decision on “Elements of the Conflict Cycle, Related to Enhancing the OSCE’s Capabilities in Early Warning, Early Action, Dialogue Facilitation and Mediation Support, and PostConflict Rehabilitation”129 to prepare a proposal on how to make better use of the possible contributions of the OSCE Parliamentary Assembly in developing a more effective response to emerging crisis and conflict situations. In 2012, the OSCE Secretariat produced the Food-for-Thought Paper regarding this issue. It was discussed in a meeting of the “Open-ended Working Group on the Conflict Cycle” on May 16, 2012, but, unfortunately, was never followed up on by the OSCE decision-making bodies.130

Kyrgyzstan Among the suggested measures for making better use of the OSCE PA in emerging crises/conflicts was that the Chairperson-in-Office (CiO) could consider nominating an appropriate parliamentary member of the OSCE PA as its special envoy/representative.131 The PA OSCE applied this practice during the crisis situation in

127

OSCE PA Tbilisi Declaration, July 2016, Resolution on Possible Contributions of the OSCE Parliamentary Assembly to Developing Effective Response to Crisis and Conflicts. 128 Para. 22, MC.DOC/1/03 of 2 December 2003, Eleventh Meeting of the Ministerial Council, OSCE Strategy to Address Threats to Security and Stability in the Twenty-First Century. 129 MC.DEC/3/11 of 7 December 2011, Eighteenth Meeting of the Ministerial Council, Elements of the Conflict Cycle, Related to Enhancing the OSCE’s Capabilities in Early Warning, Early Action, Dialogue Facilitation and Mediation Support, and Post-Conflict Rehabilitation. 130 Para. 6, OSCE PA Tbilisi Declaration, July 2016, Resolution on Possible Contributions of the OSCE Parliamentary Assembly to Developing Effective Response to Crisis and Conflicts. 131 SEC.GAL/84/12 of 10 May 2012 Implementation of MC Decision No. 3/11 on “Elements of the Conflict Cycle”, with a focus on Early Action in Response to Crises and Conflicts, Food-forThought Paper prepared for the 3rd Meeting of the “Open-ended Working Group on the Conflict Cycle.”

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Kyrgyzstan.132 The OSCE Parliamentary Assembly engaged in the country through the OSCE PA Special Envoy, Adil Akhmetov, who took part in the international collective mediation efforts. The interim President, Roza Otunbaeva, formally requested the OSCE PA Special Representative for Central Asia, Kimmo Kiljunen, to “co-ordinate the preparation process for the International Independent Commission for Inquiry”133 into the tragic events that happened in the southern part of Kyrgyzstan.134 At the OSCE PA’s Winter Meeting on 24 February 2011, K. Kiljunen reported on the organizational proceedings and the results of the Independent Commission of Inquiry on the June 2010 events.135 Working from October 2010 to January 2011, a team of experts conducted around 700 interviews, and collected around 1000 statements and 5000 photographs.136 The KIC concluded “that the violence of June does not qualify as either war crimes or genocide.” At the same time, it detected “acts [that] would amount to crimes against humanity . . . against an identifiable group on ethnic grounds” and “many other criminal acts committed in both Osh and Jalalabad during the events that fall under the Criminal Code of Kyrgyzstan.” It also stated that it “found that there have been and still are serious violations of international human rights law committed by the State in the aftermath of the events.” Also, the report made key recommendations on steps forward to the authorities in Kyrgyzstan. The report and its recommendations received wide support in the OSCE community, however, it was not officially supported by the Permanent Council. In Bishkek, the Parliament voted to ban the author from the country, despite the fact that some political actors, including President Otunbaeva and civil society representatives, have publicly spoken out in favor of the report and called on the Parliament to follow up on the report’s recommendations. The political reaction that was demonstrated after the announcement of the report proved that it was independent work of the KIC, whose aim was only to present findings and facts. Experts did not try to condemn or justify the Kyrgyz Government. There is another hidden advantage of the Assembly as an independent body. In this situation, the representative of this international parliamentary assembly had an opportunity to speak openly. The Committee was not tied to political, economic or any other relations, as representatives of the OSCE governmental part are. Hence, the parliamentary assembly has merits in frankly addressing sensitive and conflictrelated issues such as torture, illegal detention, and other human rights violations. 132

The public uprising happened in April 2010 in Bishkek. During this event, 80 persons were killed after the leader of the country had ordered his troops to open fire against protesters in front of the building of the presidential administration. 133 OSCE Parliamentary Assembly, “Kiljunen organizing international investigation of violence in Kyrgyzstan,” News from Copenhagen 355, 28 July 2010. 134 In 2010, around 450 people died as a result of interethnic violence in southern Kyrgyzstan. 135 Report OSCE PA, Tenth Winter Meeting, Vienna, Austria, 24–25 February 2011, p. 7. 136 General Committee on Political Affairs and Security, Final Report for the 2011 Annual Session “Follow-Up on Recommendations in the OSCE PA’s Oslo Declaration,” pp. 4–5.

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Guantanamo Another example is appointing a special representative on Guantanamo tasked with following up and reporting on the situation of detainees in this US detention camp. Several years prior to appointing the special representative on the issue, the Assembly adopted the Resolution on the Prisoners Detained by the US at the Guantanamo Base, where it expressed concern about the “unlawful combatant” status of the Guantanamo detainees. In 2004, the Assembly adopted the “Resolution on Torture” at the Edinburgh Annual Session, where again, MPs expressed their concern for the fate of certain Guantanamo detainees who have been held for years without trial or legal representation. Also, the OSCE PA conducted high-level visits in 2006, 2007 and 2008. The delegations got an opportunity to communicate with the representatives of the US Government and the personnel at the Guantanamo facility, however, despite numerous requests from the OSCE PA, the delegation was not permitted to speak with detainees. That fact did not allow the OSCE PA representatives to adequately assess the conditions of the detainees.137 In the Helsinki Final Declaration (2015), the parliamentarians recognized “that criminal terrorists and other non-state actors can pose significant security and human rights threats, and that neither existing criminal legislation nor the traditional laws of war may be adequate for addressing such challenges, yet mindful that it is necessary to balance the need to enhance counterterrorism measures with safeguarding fundamental rights and freedoms.”138 Using the opportunity to address sensitive issues, MPs drew the attention of the OSCE participating States to a set of legal questions, such as the definition of the “global war on terror” and justification of its applicability, and the status of people captured in the course of targeted operations in the context of the “global war on terror.” The problem is that the US authorities do not consider people captured and detained in Guantanamo as “prisoners of war.” Consequently, the US does not apply to the detainees the 1949 Geneva Convention, and considers that the US has the right to detain the “supposed terrorists” for the time necessary to establish the fact of their involvement in international terrorist activity, which represents a permanent threat against the US. In other words, there is no time limit for the detention. This situation has been strongly criticized by human rights organizations. The criticisms focus particularly on the fact that the deprivation of liberty of prisoners of war and civilian prisoners for an indefinite period in order to be able to continue to interrogate them is incompatible with Article 17(3) of the Third Geneva Convention, and with Article 31 of the Fourth Geneva Convention. The OSCE PA members consider that the law should be adapted to the new world situation and it may be worth considering whether additional instruments could be

137

OSCE PA, Report on Guantanamo by the Bureau of the OSCE PA Third General Committee, 2015, p. 3. 138 Helsinki Final Declaration 2015, Chapter III Democracy, Human Rights and Humanitarian Questions, para. 106.

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created in the future to counter or prevent new challenges to international peace and security. However, MPs also stressed that even if it appeared that the Geneva Conventions did not apply in the case of “enemy combatants,” nevertheless, international humanitarian law and human rights commitments continued to apply.139 The OSCE PA proposed, as an additional instrument, the Code of Conduct on Politico-Democratic Aspects of Cooperation (Code of Conduct)140 prepared by the Ad Hoc Committee chaired by Professor Rita Süssmuth, President of the German Bundestag. The code reaffirms human rights and fundamental freedoms. Paragraph 11 of the Code of Conduct stipulates that: The participating States strongly condemn all forms of torture as one of the most flagrant violations of human rights and human dignity. They commit themselves to strive for its elimination. They recognize the importance in this respect of international norms as laid down in international treaties on human rights, in particular the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

The Code was approved by the OSCE PA in Stockholm on 9 July 1996 und submitted to the Ministerial Council for consideration by the OSCE Summit in Lisbon in December 1996.141

5.3.2.3

Human Trafficking

The issue of human trafficking was raised in the OSCE PA’s agenda at the 1999 St. Petersburg Annual Session. During the Annual Session in Berlin in July 2002, the Assembly adopted the Resolution on Combating Trafficking in Human Beings, Especially Woman and Children. In September 2002, J. De Hoop Scheffer, Minister of Foreign Affairs of the Netherlands, listed priorities for the Netherlands’ OSCE Chairmanship 2003; combating trafficking of human beings was one of them, particularly, the illegal trade in human beings, weapons and drugs.142 During the OSCE PA winter meeting in 2003 in Vienna, several delegates raised the issue of trafficking in human beings, emphasizing the development of an actionoriented approach, rather than holding more seminars. Half a year later, the Assembly adopted the Rotterdam Declaration at the Annual Session, where it was suggested that “the OSCE effectively organize its work on combating trafficking 139

Lizin (2007), pp. 251–269. OSCE Parliamentary Assembly Code of Conduct on Politico-Democratic Aspects of Co-operation. OSCE Yearbook 1997, Annex, p. 483. For the purpose of preventing confusion: there is another Code of Conduct on Politico-Military Aspects of Security that was adopted by participating States of the CSCE/OSCE at the Budapest Summit of 5 and 6 December 1994, as Chapter IV of the “Budapest Decisions.” 141 Johnsson (2001), p. 809 142 Bakker and Bomert (2004), p. 58. 140

References

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in human beings by appointing a Special Representative on Trafficking in Human Beings.”143 Within 2 weeks, the OSCE Permanent Council adopted the “OSCE Action Plan to Combat Trafficking in Human Beings.” The document created the Office of the Special Representative and Co-coordinator for Combating Trafficking in Human Beings.144 Initially, the initiative to strengthen the executive structure of the OSCE was made by the MP of the OSCE PA, Congressman C. Smith, who had regularly introduced a supplementary item on trafficking to committee resolutions at each annual session since the beginning of discussions of the issue by parliamentarians.145 This example of the OSCE PA activity demonstrates that the Assembly’s regular discussion of highly sensitive question such as human trafficking and its suggestions found reflection in the decision regarding the creation of a new office, and, as a consequence, strengthened the executive structure of the OSCE Secretariat.

References Books, Book Chapters, Articles, Studies, Papers Aust A (2012) Alternatives to treaty-making: MOUs as political commitments. In: Hollis D, Duncan B (eds) The Oxford guide to treaties. Oxford University Press, Oxford, p 46 ff Bakker E, Bomert B (2004) Challenges for the OSCE – a Dutch perspective. In: OSCE yearbook 2003. IFSH, Nomos, Glashütte, p 51 ff Bindschedler RL (1995) International Organizations, general aspects. In: Encyclopedia of public international law 2. North-Holland Publications, Amsterdam, p 1289 ff Bloed A (1993) The conference on security and co-operation in Europe, analysis and basic documents, 1972–1993. Kluwer Academic, Dordrecht Boczek BA (2005) International law, a dictionary. Scarecrow Press, Lanham Brander S (2009) Making a credible case for a legal personality for the OSCE. OSCE Magazine March-April 2009, p 18 ff Cogen M (2015) An introduction to European Intergovernmental Organizations. Ashgate Publishing, Ltd, Farnham Dominguez R (2014) The OSCE: soft security for a hard world: competing theories for understanding the OSCE. Peter Lang AG, Brussels, p 162 ff Droesse G (2019) Membership in International Organizations: paradigms of membership structures, legal implications of membership and the concept of International Organization. Springer, Berlin, p 223 ff Ford S (1999) OSCE national minority rights in the United States: the limits of conflict prevention. Suffolk Transnatl Law Rev 23(1)

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Rotterdam Declaration of the OSCE Parliamentary Assembly and Resolutions, Twelfth Annual Session, Rotterdam from 5 to 9 July, 2003, Chapter III, Democracy, Human Rights and Humanitarian Questions, para. 92. 144 Zellner (2014), pp. 157–158. 145 C. Smith was appointed as the OSCE PA Special Representative on Human Trafficking in 2004.

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Johnsson AB (2001) Human Rights mechanisms in International Parliamentary Institutions. International human rights monitoring mechanisms, Essays in Honour of Jakob Th. Möller. Nijhoff, Leiden, p 809 ff Klabbers J (2015a) An introduction to International Organizations Law. Cambridge University Press, Cambridge Klabbers J (2015b) Straddling the fence: the EU and international law. In: Arnull A, Chalmers D (eds) The Oxford handbook of European Union Law. Oxford University Press, Oxford, p 52 ff Lizin A-M (2007) Report on Guantanamo Bay. In: IFSH (ed) OSCE yearbook 2006. Nomos, Glashütte, p 251 ff Manton E (2006) The OSCE human dimension and the process customary law formation. In: OSCE yearbook 2005. Nomos, Glashütte, p 195 ff Menon PR (1992) The legal Personality of International Organizations. Sri Lanka J Int Law 4:79 ff. https://heinonline.org/HOL/LandingPage?handle¼hein.journals/sljinl4&div¼8&id¼&page¼. Accessed 11 Sept 2018 Moser C (2019) Conceptualising accountability in the legal and institutional framework of the OSCE. In: Steinbrück PM, Moser C, Peters A (eds) The legal framework of the OSCE. Cambridge University Press, Cambridge, p 273 ff Nothelle A (2006) The OSCE parliamentary assembly–driving reform. In: IFSH (ed) OSCE yearbook 2006. Nomos Oliver RS (1996) The OSCE parliamentary assembly. Helsinki Monitor 7(1):42 ff OSCE (2015) 40 Helsinki Final Act 1975-2015. OSCE Secretariat, Wien Schermers HG, Blokker NM (2011) International institutional law: unity within diversity. Brill, Nijhoff, Leiden Stribis I (2011) The legal status of the OSCE: a view from the other side of the mirror. Legal Services Newsletter 8/2011. OSCE Secretariat, Wien Tabassi L (2019) The role of the organisation in asserting legal personality: the position of the OSCE secretariat on the OSCE’s legal status. In: Steinbrück PM, Moser C, Peters A (eds) The legal framework of the OSCE. Cambridge University Press, Cambridge, p 48 ff Tichy H (2019) The role the role of the participating states in reforming the legal framework of the OSCE: past developments, status quo and future ambitions. In: Steinbrück PM, Moser C, Peters A (eds) The legal framework of the OSCE. Cambridge University Press, Cambridge, p 82 ff Tichy H, Köhler U (2009) Legal personality or not: the recent attempts to improve the status of the OSCE. In: Buffard I (ed) International law between universalism and fragmentation: Festschrift in Honour of Gerhard Hafner. Nijhoff, Leiden, p 455 ff Treves T (2006) Customary international law. MPEPIL. http://opil.ouplaw.com/view/10.1093/law: epil/9780199231690/law-9780199231690-e1393?prd¼EPIL. Accessed 12 Sept 2018 Uhl R-J, Knoll B (2009) The OSCE: a commitment to Human Rights. In: Suksi M, Jaichand V (eds) 60 years of the universal declaration of human rights in Europe. Intersentia Publishers, Cambridge, p 438 ff White ND (2005) The law of international organisations. Manchester University Press, Manchester Wood M, Purisch D (2011) Helsinki Final Act (1975). MPEPIL. http://opil.ouplaw.com/abstract/ 10.1093/law:epil/9780199231690/law-9780199231690-e1051?rskey¼uPPaOA&result¼6& prd¼EPIL. Accessed 11 Sept 2018 Zellner W (2014) Transnational threats and challenges — an emerging key focus of the OSCE. In: IFSH (ed) OSCE yearbook 2013. Nomos Bloomsbury, Glashütte, p 145 ff

Chapter 6

The Council of Europe

6.1

Background of Creation

The Council of Europe (CoE) is the first international organization where a parliamentary organ was formally established.1 Furthermore, it is one of the oldest European organizations which combined only European states.2 Its parliamentary assembly became a model for the next parliamentary organs established within the framework of other European organizations, for example the BENELUX Parliament and the Nordic Council that were mentioned in Chap. 2 of this paper. The small group of European states expressed the will to cooperate at the beginning of the CoE’s history. Later, the idea of integration replaced the idea of cooperation.3 It could be said that the rare integration was impossible without cooperation among particular states at the start, and the CoE was at the beginning of this process. International cooperation and justice were named as basic elements for peace in the preamble of the Statute of the Council of Europe. Ten governments of the founding states of the CoE believed that, “for the maintenance and further realization of these ideals and in the interests of economic and social progress, there [was] a need of a closer unity between all like-minded countries of Europe.”4 The CoE was founded by the Governments of the Kingdom of Belgium, the Kingdom of Denmark, the French Republic, the Irish Republic, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Kingdom of Norway, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland in 1949 in London. 1

Ruffert and Walter (2015), p. 142. Cogen (2015), p. 135. 3 Kleinsorge (2010), p. 25. 4 Statute of the Council of Europe, London, 5.V.1949, European Treaty Series–No. 1. 2

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 A. Chiniaeva, Parliamentarization of International Governmental Organizations, European Union and its Neighbours in a Globalized World 2, https://doi.org/10.1007/978-3-030-71341-6_6

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However, its establishment was preceded by some significant international events. Winston Churchill was a leading person who favored the idea of a European organization committed to democracy and freedom. In Zurich in 1946, he used in his address the term “United Europe.” In 1948, during the European Congress in The Hague, Churchill5 called again for a Council of Europe: “We aim at the eventual participation of all European peoples whose society and way of life are not in disaccord with a charter of human rights and the sincere expression of free democracy. We welcome any country where the people own the Government and not the Government the people.”6 The last sentence of the quotation was a green light for the future parliamentarization of international organizations. The idea of “United Europe” was not a new one, and Churchill was not the first person who proclaimed it; it had been discussed for nearly two centuries. Already in 1849, Victor Hugo, at the Paris Peace Congress, suggested that, “A day will come when war will appear as absurd, and be as impossible, between Paris and London, between St. Petersburg and Berlin, between Vienna and Turin, as it would be now between Rouen and Amiens, between Boston and Philadelphia. A day will come when you, France – you Russia – you Italy – you England – you, Germany – all of you, nations of the Continent, will, without losing your distinctive qualities and your glorious individuality, be blended into a superior unity, and constitute an European fraternity . . . A day will come when those two immense groups, the United States of America and the United States of Europe shall be seen placed in presence of each other, extending the hand of fellowship across the ocean.”7 The speech was a bit overly ambitious. The following two world wars postponed the realization of the idea of a United States of Europe. The idea itself changed over time, such as which states should be included (for example, Russia and the UK); what kind of unity it should be–economic, cultural and/or political; and on what

5 On 7 May 1948, at the opening session of the Congress of Europe in The Hague, W. Churchill, former British Prime Minister and Honorary President of the Congress, delivered an address on the necessity for Europe to unify. Available at: https://www.cvce.eu/en/obj/address_given_by_ winston_churchill_at_the_congress_of_europe_in_the_hague_7_may_1948-en-58118da1-af2248c0-bc88-93cda974f42c.html (03.05.2020). 6 Cogen (2015), p. 135; Polakiewicz (2013). 7 Original of V. Hugo’s speech: Discours d’ouverture du Congrès de la Paix 21 août 1849

Un jour viendra où la guerre paraîtra aussi absurde et sera aussi impossible entre Paris et Londres, entre Pétersbourg et Berlin, entre Vienne et Turin, qu’elle serait impossible et qu’elle paraîtrait absurde aujourd’hui entre Rouen et Amiens, entre Boston et Philadelphie. Un jour viendra où la France, vous Russie, vous Italie, vous Angleterre, vous Allemagne, vous toutes, nations du continent, sans perdre vos qualités distinctes et votre glorieuse individualité, vous vous fondrez étroitement dans une unité supérieure, et vous constituerez la fraternité européenne [. . .] Un jour viendra où l’on verra ces deux groupes immenses, les Etats-Unis d’Amérique, les Etats-Unis d’Europe, placés en face l’un de l’autre, se tendant la main par-dessus les mers. Available at: http://www.houseforculture.eu/ (04.08.2016). See also Wassenberg (2013).

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basis it should be created: whether it should be atop an already existing international organization such as the League of Nations or something completely new.8 After the Second World War, the idea of the “United Europe” was pushed forward. The skeptical view might be that behind the idea of a union based on respect for human rights and a common spirit to prevent the catastrophe of war in the future, was hidden another reason. It was the USSR and its rapidly increasing influence on the Western and central European countries. A simple analogy can be made between the OSCE and the CoE. Both intergovernmental organizations were created during tense relations between the Eastern and Western parts of the world. The Western part was often motivated by the fear of the threat from the East and tried to prevent any possibility of it. Hence, the bipolar situation in the world was one of the reasons for the creation of a number of international organizations at that time.

6.2

Legal Basis and Legal Status of the CoE

In March 1948, Belgium, France, Luxemburg, the Netherlands and the UK signed the Treaty of Economic, Social and Cultural Collaboration and Collective SelfDefense (Brussels Treaty). This Treaty was the one of the first steps to the United Europe. The next step happened in May of the same year at the Congress of Europe (the Hague Congress),9 where Churchill called for the establishment of the CoE, as was quoted above. The congress recognized that it was “the urgent duty of the nations of Europe to create an economic and political union in order to assure security and social progress.”10 The gathered representatives of the countries11 adopted the following political resolution, in which were set out objectives for further realization, particularly: • convening of a European Assembly chosen by the parliaments of the participating nations;12 • drafting the Charter of Human Rights;13 • establishment of a Court of Justice with adequate sanctions for the implementation of the Charter. Later, the French Government initiated consideration of The Hague Congress conclusion by the Consultative Council of the Brussels Treaty Organization. Further, a working group was created to prepare a constitution for a new European institution with the name “the European Union” or “the Council of Europe.” The working 8

Wassenberg (2013), Polakiewicz (2013) and Briand (1930). See: Congress of Europe, The Hague, 7–11 May, 1948. 10 Political Resolution (The Hague Congress, 7–11 May 1948). 11 The full list of participants is available at: http://www.cvce.eu (16.08.2016). 12 Later, this proposal found its realization in the Parliamentary Assembly of the CoE. 13 Later, this proposal found its realization in the European Convention on Human Rights. 9

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group took up some of the ideas of The Hague Congress during the development of its proposal. In March 1949, Denmark, Ireland, Italy, Norway and Sweden were invited to join the Brussels Treaty States to consider the draft of the treaty for the organization, entitled the Council of Europe. In May 1949, the founding treaty—the Statute of the Council of Europe—was signed in London. On August 3, the Statute came into force, after its ratification14 by all ten founding states.15 The first session of the Consultative Assembly of the Council of Europe took place on 10 August in Strasbourg, France. Articles 4 and 5 of the Statute of the CoE stipulate that any European State which is deemed to be able and willing to fulfill the provisions of Article 3 may be invited to become a Member of the Council of Europe or Associate Member16 by the Committee of Ministers. Furthermore, any State that is wishing to cooperate with the CoE may be granted observer status with the Organization by the Committee of Ministers.17 Observer status may also be granted to international intergovernmental organizations. However, the Committee of Ministers cannot invite a state to become a full Member or Associate Member or to grant it observer status18 by its own decision; it shall first consult the Consultative (Parliamentary) Assembly. In comparison to the CoE, the decision-making bodies of the OSCE do not have this rule and have never applied this practice of consultation with its parliamentary dimension. In addition, the Committee of Ministers shall first consult the Assembly before sending a request asking a Member of the CoE to withdraw from the organization, in accordance with Article 8 of the Statute.19 According to Article 3, “Every member . . . must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realization of the aim of the Council.” Under provisions of Article 7, “any member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw . . . . If such

14

Article 42 of the Statute of the Council of Europe. Evans and Silk (2013), p. 23. 16 In 1950, the Federal Republic of Germany (FRG) (West Germany), and then French-occupied Saarland became associate members of the CoE. In 1951, the FRG became a full member of the CoE. In 1955, a referendum on the Saar statute was held. Based on the results of the referendum, Saarland joined West Germany in 1956. Therefore, Saarland withdrew from its associate membership in the CoE. Regarding the status of associate member states, they are entitled to be represented in the Consultative (Parliamentary) Assembly only under Article 5 of the Statute of the CoE. 17 Statutory Resolution No. (93) 26 on observer status adopted by the Committee of Ministers on 14 May 1993 at its 92nd session. 18 According para. V of Statutory Resolution No. (93)26: “Observer status gives no right to be represented on the Committee of Ministers or the Parliamentary Assembly unless a specific decision has been taken by one of these organs on its own behalf.” 19 Appendix I—Statutory Resolution (51) 30 adopted by the Committee of Ministers on 3 May 1951. 15

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member does not comply with this request, the Committee may decide that it has ceased to be a member of the Council as from such date as the Committee may determine.” The violation of Article 3 became one of the reasons in 2014 to suspend Russia from voting rights in the Parliamentary Assembly, the right to be represented in the Bureau of the Assembly, the Presidential Committee, the Standing Committee and the right to participate in election observation missions. On 7 March 2014, the Venice Commission was asked by the SG of PACE to provide an opinion on whether the decision taken by the Supreme Council of the Autonomous Republic of Crimea in Ukraine to organise a referendum on becoming a constituent territory of the Russian Federation or restoring Crimea’s 1992 Constitution was compatible with constitutional principles. The Commission issued an opinion adopted on 21-22 March 2014 where it concluded that the referendum was incompatible with the Ukrainian Constitution.20 In accordance with Rule 8.1 of the Rules of Procedure of PACE, the challenge of credentials can take place on the basis of a report prepared by the Monitoring Committee or a motion tabled by at least thirty members of the Assembly. For the Spring Session of the PACE in 2014, two motions were tabled to reconsider the ratified credentials or to suspend the voting rights of the Russian delegation on substantive grounds for violation of Ukrainian territorial integrity, on the basis of Rule 9.1(a) of the Rules of Procedure of the PACE.21 The Members of the Assembly expressed their serious concern about “the persistent failure by the Russian Federation to honour its obligations and commitments,” as demonstrated by the “actions of Russian military forces in the Crimean peninsula, as well as explicit threats of military actions in the rest of Ukraine’s territory.”22 The Assembly adopted Resolution 1990 (2014) regarding the reconsideration on substantive grounds of the previously ratified credentials of the Russian delegation. Russia decided, in protest against this decision of the PACE, to withdraw its delegation in 2014. In 2017, Russia stopped paying two-thirds of its contribution to the ordinary budget23 of the Council of Europe, which became the cause of the CoE’ financial problems. Moreover, the situation of the Russian withdrawal from the CoE, which would result in the country no longer being bound by the ECHR, became real.24 In 2019, PACE adopted Resolution 2292 (2019)25 regarding the country’s return, according to which MPs voted to ratify the credentials of the Russian delegation after Russia fulfilled a series of recommendations that were provided 20

Polakiewicz and Sandvig (2016), p. 123. Polakiewicz and Sandvig (2016), p. 126. 22 Paras 2 and 15 of Resolution 1990 (2014) of the PACE on “Reconsideration on substantive grounds of the previously ratified credentials of the Russian delegation.” Available at: https:// assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid¼20882&lang¼en (05.06.2020). 23 The amount of Russian contributions is about EUR 33,000,000. 24 Drzemczewski and Dzehtsiarou (2018). 25 Resolution 2292 (2019), Challenge, on substantive grounds, of the still unratified credentials of the parliamentary delegation of the Russian Federation, 26 June 2019. Available at: http://assembly. coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid¼28049&lang¼en (07.06.2020). 21

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by PACE in that Resolution. In 2020 during the Winter Session, the Assembly noted that, in the six months since the Russian Federation’s return to the PACE, some recommendations included in Resolution 2292 (2019) had been addressed by the country. In January 2020, PACE ratified the credentials of the Russian parliamentary delegation26 and the Russian delegation came back to PACE after a six-year suspension. The same position with respect to the Ukrainian case took place in the OSCE PA. The Bureau of the OSCE PA unanimously rejected the Russian Federation’s designation of Olga Kovitidi as a Member of the Assembly. Ms. Kovitidi was nominated by the Russian Federation as a Member of the Federation Council representing the “government of Crimea,” which is not recognized by the Assembly as a Russian territorial entity.27 Another example is when Greece decided to withdraw from the CoE under the pressure of public humiliation for the coup by a military junta in 1967. In 1974, Greece came back to the CoE.28 These examples demonstrate a quite strict position of the CoE in respect to human rights and obligation of the Member States under the Statute. In this case, the difference between the CoE and the OSCE is that the latter is more flexible, because of the absence of any treaty or the statute where this rule could be set forth. Participating States have an opportunity only to strongly condemn anti-human rights actions at the common meetings without any further effect. However, the parliamentary dimension of the OSCE has its own way of demonstrating disagreement with the policy of the participating State by refusing to accept the candidates nominated by its national parliament. The basis for membership of the OSCE PA are Rule 1 and Rule 3 of the Rules of Procedure of the Assembly. They have to be interpreted in light of the OSCE commitments, particularly, the Helsinki Final Act and the Charter of Paris, on which this organization is founded. The OSCE PA considers these documents as statutory. Hence, MPs of the participating States may be suspended if they do not act in accordance with the principles and obligations included in them. Under Article 9 of the Statute of the CoE, “the Committee of Ministers may suspend the right of representation on the Committee and on the Consultative Assembly of a member which has failed to fulfill its financial obligation during such period as the obligation remains unfulfilled.” Apart from states and international intergovernmental organizations, the Council of Europe may conclude agreements with non-governmental international organizations (NGOs).29 These agreements shall, in particular, define the terms upon which 26

Resolution 2320 (2020), Challenge, on substantive grounds, of the still unratified credentials of the parliamentary delegation of the Russian Federation, 29 January 2020. Available at: http:// assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid¼28570&lang¼en (07.06.2020). 27 Report and Recommendation of the Credentials Committee Regarding the Russian Federation’s Designation of Ms. Olga Kovitidi as a Member of the OSCE PA of 18 February 2015. 28 Møller (2012), p. 199; Polakiewicz (2013); de Puig (2008), p. 49. 29 Appendix I – Statutory Resolution (51) 30 adopted by the Committee of Ministers on 3 May 1951.

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such an organization shall be brought into a relationship with the CoE. The NGOs have to be recognized under European law. It means that particular requirements apply to NGO, particularly, that it has non-profit-making aims, its activity extends to at least two states, it is licensed by a contracting party in accordance with international law, and its headquarters are within the territory of this contracting party or another.30 G. Winkler defined the CoE as a consultative and cooperative international, intergovernmental organization of European states which is entitled to conclude contracts with NGOs recognized under European Law. “The character of the members states’ equally entailed partnership is reflected in the Council’s organizational structure.”31 The process of admission to membership is based on Article 4 of the Statute, where the Committee of Ministers expressed its will to invite European states to become members of the CoE. Traditionally, three periods are specified in the process of admission of new Member States:32 the early expansion (1949–1965), the second wave of enlargement (1970–1989) and the post-Cold War period of the expansion to the East (1989–2007). Currently, forty-seven countries are Member States of the CoE. Almost half of that number joined after the Cold War. Belarus remains today the last European country without membership in the Council. Canada, the Holy See, Japan, Mexico and the United States have observer status. Canada, Mexico and Israel are also observers to the Parliamentary Assembly of the CoE. Article 1 declares that the aim of the CoE is “to achieve a greater unity between its Members for the purpose of safeguarding and realizing the ideals and principles which are their common heritage and facilitating their economic and social progress.” The wording of the article is abstract and does not reflect the particular framework of the CoE’s activity. However, one exception was made at the beginning of the Council’s history. By common agreement between founding states, the CoE was not to deal with matters of defense that were within the jurisdiction of the Consultative Council of Western Powers or with matters within the province of existing international organizations such as the Organization for European Economic Cooperation.33 In 2010, the Assembly of the CoE issued Resolution 1732 on Reinforcing the Effectiveness of Council of Europe Treaty Law,34 where it called on the Member 30 European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations, Strasbourg, 24.IV.1986, European Treaty Series, No. 124. 31 Winkler (2006), pp. 348–350. 32 For example, see Evans and Silk (2013), pp. 33–37; Kleinsorge (2010), pp. 81–83. 33 Council of Europe, International Organization, Cambridge University Press, Vol. 3, Issue 3, August 1949, pp. 551–552. Available at: https://doi.org/10.1017/S0020818300014727, published online: 01 May 2009. 34 Text adopted by the standing committee, acting on behalf of the assembly, on 21 May 2010 (see Doc. 12175, Report of the Committee on Legal Affairs and Human Rights, rapporteur: Mr. Prescott).

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States to ratify, as a matter of priority, what the Assembly considers to be the core Council of Europe treaties. The following “core treaties” were listed in the Appendix to the Resolution: • Convention for the Protection of Human Rights and Fundamental Freedoms with its protocols; • European Social Charter/European Social Charter with its additional protocols; • European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and its amending protocols; • Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data; • European Charter for Regional or Minority Languages; • Framework Convention for the Protection of National Minorities; • Council of Europe Convention on Action against Trafficking in Human Beings; • Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse; • European Convention on Extradition with Additional Protocols on prohibition of extradition for political offences and further reference to the ne bis in idem35 principle; • European Convention on Mutual Assistance in Criminal Matters and its additional protocol on cross-border crime and data protection; • European Convention on the Suppression of Terrorism and its amending protocol; • Criminal Law Convention on Corruption with Additional Protocol on extending its scope to persons exercising quasi-judicial functions; • Civil Law Convention on Corruption; • Convention on Cybercrime with its Additional Protocol on criminalization of racist acts and acts of a xenophobic nature committed through computer systems; • Council of Europe Convention on the Prevention of Terrorism; • Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism. Unlike the OSCE, the CoE has a full legal personality, such that the Member States’ representatives and personnel do not suffer because of its absence. Three documents regulate this issue for the Council: the Statute of the CoE, the 1949 General Agreement on Privileges and Immunities of the CoE and six Protocols to this General Agreement.

The expression means “not twice in the same [cause of action]”. According to Article 14 (7) ICCPR “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.” Later this principle was reiterated in Article 4 of the Protocol 7 to the ECHR, “No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.” 35

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According to Article 40 of the Statute, “representatives of members and the Secretariat shall enjoy in the territories of its members such privileges and immunities as are reasonably necessary for the fulfillment of their functions.” The same provision was set forth in Article 105 of the UN Charter. Article 1 of the General Agreement on Privileges and Immunities of the Council of Europe provides the CoE with juridical personality. The Council obtained the capacity to conclude contracts, to acquire and dispose of movable and immovable property and to institute legal proceedings. The CoE’s premises and buildings are inviolable under Article 4 of the General Agreement. Its assets, income and other property are exempt from all direct taxation, and from all customs duties, prohibitions and import restrictions, in accordance with Article 7 of the Agreement. Also, the document states in Article 9 that members of the Committee of Ministers, when exercising their duties and travelling to and from places of meetings, are covered by privileges and immunities. It means that they may not be arrested or imprisoned, their personal luggage may not be seized, and they may not be prosecuted for acts committed in the course of their duties. All papers and documents are inviolable. The same rules are applicable to the MPs of the Parliamentary Assembly, whether or not the Assembly is itself in session at such time (Articles 13–15 of the Agreement, Article 3 of the Protocol). The Council’s staff members may not be prosecuted for acts performed in their official capacity, as long as they do not exceed their authority. They are also exempt from taxation on salaries paid to them by the Council (Articles 16–19 of the Agreement). The CoE has an institutional structure. Its statutory organs are the Committee of Ministers and the Consultative (Parliamentary) Assembly,36 which consist of representatives of the Member States. The Committee of Ministers is a “governmental organ” with external representative functions. PACE is a consultative organ of the organization.37 The CoE is a complex organization that includes, besides those two statutory organs, the European Court of Human Rights (ECtHR) and the CoE Commissioner for Human Rights, the structures associated with the European Social Charter and the Congress of Local and Regional Authorities of the Council of Europe. The Secretariat, which is headed by the Secretary General, serves the CoE as the main administrative organ.

6.3 6.3.1

Parliamentary Assembly of the Council of Europe (PACE) Establishment

As was mentioned above, the Parliamentary Assembly of the CoE is one of its two statutory organs, according to Article 10 of the Statute. In the article, the Assembly 36 37

Article 10 of the Statute of the CoE. Winkler (2006), p. 350.

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has second place after the Committee of Ministers. Despite the fact that the term “Parliamentary Assembly” reflects the composition of the organ,38 initially the Assembly had the name “Consultative Assembly.” This explains the relations between the Committee and the Assembly. The latter was created as the deliberative organ of the Council, which can debate and discuss matters, and present its conclusions in the form of recommendations. Hence, in the beginning, it was an organ with only a deliberative function. The United Kingdom advocated for the purely advisory function of the Assembly during discussion of the Statute in 1949. However, PACE, as well as the OSCE PA, attempted to increase its power since its establishment. The main aim for the Assembly was always the joint decisionmaking process with the Committee of Ministers. In 1974, the Assembly itself changed its title to the “Parliamentary Assembly.” The Committee of Ministers did not accept this step initially, but never opposed it openly. For instance, disagreement was demonstrated via correspondence, when Assembly sent documents headed “Parliamentary Assembly” and got back answers headed “Consultative Assembly” from the Committee. Finally, in 1994 the Committee of Ministers formally confirmed the acceptance of the new title,39 but the Statute remains unamended regarding the renaming of the Assembly.40 Nowadays, PACE is the largest and the first Assembly of an international organization with full representation of different political forces. The parliamentarians who make up the Assembly come from the national parliaments of forty-seven member states and represent 820 million citizens. Their mission is to promote development and implementation of the highest standards of democracy, human rights and rule of law for the benefit of the peoples of Europe.

6.3.2

Structure

The Parliamentary Assembly consists of 324 members of parliament and 324 substitutes for MPs.41 Its work is prepared by nine committees42 and the Bureau

According to Article 25 of the Statute, the Assembly “consist[s] of representatives of each member, elected by its parliament from among the members thereof, or appointed from among the members of that parliament.” 39 Benoît-Rohmer and Klebes (2005), pp. 56–57. 40 It was added as a footnote (1) to prevent misunderstanding of the statute’s text. 41 The number of MPs as of 2020. 42 In accordance with Rule 44.1 of the Rules of Procedure, the assembly transformed its Sub-Committee on the Election of Judges to the European Court of Human Rights into a full committee with 20 seats on 1 January 2015. Previously, the Committee on Legal Affairs and Human Rights was responsible (via its subcommittee) for interviewing candidates for the post of the ECtHR judge. 38

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comprises the President of the Assembly, the twenty Vice-Presidents and the chairs of the five political groups.43 In contrast to the OSCE PA, where parliamentarians represent political parties of their national parliaments only, the members of PACE compose international political groups. According to Rule 6.2(a) of the Assembly’s Rules of Procedure, “national delegations should be composed so as to ensure a fair representation of the political parties or groups in their parliaments.” In addition, Rule 19 stipulates, “representatives and substitutes may form political groups.” Hence, representatives of the same political views have the opportunity to join their colleagues from other countries. However, it does not mean the creation of a “supra-national party;”44 it is just associations of parliamentarians in the framework of an international parliamentary assembly. Membership in a political group is not an obligation for parliamentarians; they may always join members not belonging to a political group. Currently, 105 members are in this group.45 The political groups are governed by the Assembly’s Rules of Procedure. In addition, every group has its statute document, named either “Statutes” or “Rules of Procedure.” The Secretariat of the Parliamentary Assembly supplies PACE with the assistance required for its proper functioning. This includes providing support for the PACE’s bodies (President, Bureau, Presidential Committee, Standing Committee, committees and sub-committees). It is headed by the Secretary General of the Assembly.46 He or she has a rank of a Deputy of the Secretary General47 of the CoE. The Secretary General of the Council of Europe, in accordance with Article 37 (b) of the Statute, provides the Parliamentary Assembly with assistance and support “as [it] may require.” The secretariat employees of the Assembly are members of the secretariat of the CoE. The procedure of appointment for the staff of PACE is the same as for the rest of the Secretariat of the CoE. In other words, the Secretary General of the CoE has the authority to make appointments of PACE staff members. In accordance with Article 11 of the Staff Regulations of the CoE “the Secretary General shall make appointments to all posts and positions in the Secretariat other than those to which the holders are elected and shall assign each staff member, in the

43 Political groups within the PACE are the Group of the European People’s Party (EPP/CD), the Socialist Group (SOC), the European Conservatives Group & Democratic Alliance (EC/DA), the Alliance of Liberals and Democrats for Europe (ALDE), the Group of the Unified European Left (UEL) and Members not belonging to a Political Group. 44 Evans and Silk (2013), p. 149. 45 The number of MPs as of 2020. 46 Rule 66.1, Rules of Procedure of the Assembly. 47 In accordance with Resolution (49)20, the Committee of Ministers, pending the amendment of Articles 36 and 37 of the Statute, authorized the Assembly to appoint, on the recommendation of the Committee of Ministers, a Chief of the Administrative Services (Clerk) of the Assembly, having the rank of Deputy Secretary General. This title was replaced by Secretary General of the Assembly in January 2000.

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interests of the service, to a post or position in his or her category corresponding to his or her grade.”48 Later, PACE adopted Recommendation 1344 (1997), which recommended to the Committee of Ministers that it amend the Staff Regulations so that the appointment of staff to the PACE Secretariat would be subject either to the approval of the President or the Secretary General of the Assembly or, in the case of the highestranking posts, to the Bureau’s approval. However, the Committee of Ministers replied, “according to present procedures for recruitment or promotion/transfer, the Clerk [Secretary General of the Assembly] or his or her representative [already] sits as a member of the panel charged with making recommendations to the Secretary General in the context of his statutory responsibility for the recruitment of staff.”49 In comparison with the Secretariat of the OSCE PA, the staff of the Secretariat of PACE is much bigger. In the beginning of 2015, the secretariat comprised eightyfive permanent posts, five structural fixed-term positions, one fixed-term position in respect of a program and one specially appointed official. At present, the secretariat of the Assembly includes nine committees with forty-nine staff members working for them. The rest of the staff members work for the Bureau of the Assembly, the Private Office of the President of the Assembly, the Table Office, the Election Observation Division, the Parliamentary Projects Support Division, the Central Division, the Communication Division and the Information Technology Unit.50

6.3.3

Budget

The biennium priorities of the Assembly are defined in its Resolution 2046 (2015), adopted by an Assembly vote on 21 April 2015. In addition to those priorities, the Assembly secretariat carries out different projects, focused on the added value of national parliaments in the promotion of Council of Europe standards and instruments. These projects improve the capacity of national parliaments to supervise the execution of judgments of the European Court of Human Rights and other themes related to democratic governance, social rights and social cohesion. Lastly, the Secretariat continues to promote the visibility of the Assembly in traditional and social media. The members of the Assembly also benefit from support by the Secretariat to enhance their work within the Assembly, notably through interviews and videos recorded by the media-box.

48 The Staff Regulations and its appendices were adopted by Resolution (81)20 of the Committee of Ministers on 25 September 1981. 49 Doc. 8080 of 21 April 1998, Reply to Recommendation 1344 (1997) from the Committee of Ministers, adopted on 16 April 1998 at the 628th meeting of the Ministers’ Deputies. 50 See: Appendix I, Resolution 2046 (2015) of the Parliamentary Assembly, Council of Europe, Expenditure of the Parliamentary Assembly for the biennium 2016–2017.

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Whereas the budget of the OSCE PA is outside the unified budget of the parent organization, the budget of the PACE is a component of the CoE’s budget. The total budget of the CoE for 2016 was EUR 442,255,900, for 2017 it was EUR 430,409,700,51 and for 2018 it was EUR 466,045,100. According to Article 38 (c) of the Statute, the Secretary General is responsible for preparing annually a draft budget for the next year and submitting it for adoption to the Committee of Ministers. In 2010 the Secretary General considered “the possible move towards a biennial budget process as from 2012.”52 The Committee of Ministers welcomed this proposal as a whole, and the biennial Programme53 with the first two years’ budget of the CoE was adopted. The budget program includes four pillars: human rights; rule of law; democracy; governing bodies, general services and other. The Parliamentary Assembly is under the democracy pillar, in the subsection “Strengthening Democratic Governance and Fostering Innovation.” The Secretary General consults with the Assembly on the part of the draft budget that comprises operational appropriations concerning it.54 The Parliamentary Assembly issues an opinion and a resolution concerning the expenditure relating to its operation. Parliamentarians debate and then adopt the opinion at one of the part-sessions. For instance, Resolution 2046 (2015) of PACE of Expenditure of the Parliamentary Assembly for the biennium 2016–2017 was adopted by the Assembly on 21 April 2015 during the Spring Session. However, the Committee of Ministers can modify the Secretary General’s proposal on the budget that includes the Assembly’s opinion, whether or not it follows the PACE’s wishes. PACE, as well as the OSCE PA, had been trying to get power over the budget for many years. It managed to achieve some of these results in 1955 after the Assembly issued Resolution 50 (1954), which considered that the Assembly should be consulted by the Committee of Ministers on the draft budget of the Council of Europe as a whole. However, the Committee of Ministers agreed only to strengthen the consultative functions of the Assembly’s work in part. It was decided that the Assembly should be given an opportunity to express its opinion on the budget of the Council and had instructed the Secretary General to transmit to the Assembly documentation comprising the final audited accounts for the previous financial year and the budget for the current financial year. These documents could provide

51

See: Council of Europe Programme and Budget 2016–2017. Available at: https://rm.coe.int/ 16806d8d29 (18.09.2018), Council of Europe Programme and Budget 2018–2019. Available at: https://rm.coe.int/council-of-europe-programme-and-budget-2018-2019/16807761cd (18.09.2018). 52 CM (2010) 42 rev Priorities for 2011 and their budgetary implications, para. 45 and CM (2010) 130, Draft Council of Europe Programme and Budget 2011, foreword by the Secretary General. 53 CM (2010) 125 Introduction of a biennial budget of the Council of Europe. 54 Resolution (53) 38 adopted by the Committee of Ministers on 13 December 1953, and Article 20 (4)(lit. h) of the Financial Regulations and Supplementary Provisions of the Council of Europe adopted by the Committee of Ministers on 29 June 2011.

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adequate material for the Assembly to express its opinion on what credits might be included in the budget for the forthcoming year.55 In 1975, the Committee of Ministers agreed that the Assembly’s budget was an operating budget that should be voted on as a budgetary package. Consequently, after this decision, the Committee still has control over the budget, but the Assembly decides how its own part of the budget should be spent.56 The next success in budgetary issues for the Assembly was in 1997, when the Committee of Ministers expressed its opinion that it was “necessary to hold regular consultations with the Assembly in order to discuss all issues of common interest in the budgetary and administrative fields.”57 Despite the Assembly’s will to expand its involvement in the budgetary process, in 2003, the Committee of Ministers drew the line regarding the budget question. It said to the Assembly that the procedure for consulting the Parliamentary Assembly had been established in accordance with the recommendations of the “Committee of Wise Persons.”58 Besides, the Assembly’s opinion was always taken fully into account, and the exchange of views takes place with the Assembly before a decision is taken by the Deputies, and the Assembly “enjoys considerable budgetary freedom within its own financial package.”59 Consequently, despite the progress and all the efforts that PACE made in regard to the budget issue, currently, the Assembly does not have full control over its budget. It may control only a part of the expenditure. Hence, PACE, as well as the OSCE PA, has access to the budget of the organization and can provide the Committee of Ministers with its opinion, as does the OSCE PA, during discussion at the Permanent Council meetings. However, neither Assembly has power to control the overall budget of its organization in the way in which national parliaments usually do, controlling their own spending and that of their national government.60 According to the Budget Proposal of the Council, the total amount of the PACE budget was EUR 17,968,800 in 2016 and 17,951,600 in 2017. In 2015, the PACE had a budget of EUR 16,603,600, five times more than the OSCE PA budget. The PACE has the opportunity to attract financial sources using some extra budgetary resources, which is “requested to enhance some countries’ national 55

Rules of Procedure of the CoE, Appendix X, Extract from the Communication of the Committee of Ministers on the examination of the Budget by the Assembly (Doc. 342). 56 Evans and Silk (2013), p. 163. 57 Rules of Procedure of the CoE, Appendix X, Extract from the reply of the Committee of Ministers to Recommendation 1344 (1997) of the Parliamentary Assembly on enlargement of the Council of Europe: the budgetary and administrative powers of the Assembly (Doc. 8080). 58 In 1993, the Committee of Ministers set up a “Committee of Wise Persons,” composed of leading European figures for revising the Statute of the Council of Europe. 59 CM/AS (2003) Rec1567-final, Parliamentary Assembly Recommendation 1567 on parliamentary scrutiny of international institutions, Reply from the Committee of Ministers adopted at the 825th meeting of the Ministers’ Deputies (22 January 2003). 60 Evans and Silk (2013), p. 166.

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parliamentary capacity to oversee the implementation of Council of Europe standards and policies.”61 In this work, PACE involves parliamentarians and the staff of national parliaments to increase the visibility and impact of its work. PACE applied this practice for the first time in 2011, when Germany contributed to the parliamentary dimension campaign “One in Five” to fight sexual violence against children. The Assembly provides the Committee of Ministers with a list of proposed cooperation activities with national parliaments and other organizations.62 According to paragraph 7 of Resolution 2046 (2015), the cooperation activities make it possible to respond to the specific needs of the parliaments of the Council of Europe Member States or those enjoying Partner for Democracy status. Thus, in 2014, the Assembly received EUR 329,600 in voluntary contributions for its thematic activities. In a resolution, and by way of opinion, parliamentarians may express their views regarding not only the budget of the Assembly but the overall budget of the CoE. Thus, this year, the Assembly welcomed the Turkish authorities’ decision to reinforce the CoE by proposing to become a “major contributor.” It “urges the member States to accept this proposal without reducing the amount of their own contributions to the Organization’s different budgets.” In addition, the Assembly accounted for its expenditure regarding this issue and admitted that it could be met only with additional resources, since the budget of the Assembly was too small and would not cover it.

6.3.4

Role of PACE

Both the OSCE PA and PACE are deliberative organs. However, PACE plays a more significant role in the organization in regard to the decision-making and budgetary processes. It has real authority. In its struggle for power, the PACE has been more successful than the OSCE PA. Currently, the Assembly elects judges of the ECtHR,63 the European Commissioner for Human Rights,64 the Secretary General (SG)65 of the CoE and his/her Deputy.66 Table 6.1 demonstrates that the main difference is an opportunity to influence the appointment process, where PACE has power beyond its institutional frameworks.

61

Draft Council of Europe Programme and Budget 2016–2017, p. 95. Available at: https://rm.coe. int/16804b321b (10.05.2020). 62 For example, project “South Programme II,” where PACE works together with the European Union. 63 Article 22 of the Convention for the Protection of Human Rights and Fundamental Freedoms. 64 Article 9, Resolution (99)50. 65 Resolution (49)20. 66 Article 36 of the Statute of the CoE.

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Table 6.1 Election of high-ranking positions by OSCE PA and PACE Officers of the Assembly

Other Institutions

OSCE PA President Vice-Presidents (9) Treasurer No

PACE President Vice-Presidents (12) SG of the Assembly Judges of the European Court of Human Rights SG of the Council of Europe Deputy SG Commissioner for Human Rights

The power of PACE includes monitoring of how states fulfill their obligations under the ECHR and highlighting new facts about human rights violations.67 In addition, it is involved in the procedure of the appointment of members of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.68 Chapter V of the Statute of the CoE and the Rules of Procedure define the role and functions of PACE: the Assembly provides political impetus to the CoE’s actions. Parliamentarians discuss and make recommendations upon any matter within the aim and the scope of the Council of Europe or upon any matter referred to it by the Committee of Ministers. The Assembly gives its opinion on requests for accession to the Council of Europe, as well as for observer status,69 and is formally consulted on draft conventions and other legal instruments of the CoE. The part-sessions take place four times a year, usually in the last working week in January, April, June and September or the beginning of October. Between sessions, the Standing Committee acts on behalf of the Assembly. The Assembly adopts three types of documents: resolutions, which express the Assembly’s viewpoint and address Member States of the CoE; recommendations, addressed to the Committee of Ministers, to which it is required to reply; and opinions, which include the view of the Assembly on membership applications, draft treaties, conventions or the draft budget and other texts submitted by the Committee of Ministers. In addition, working documents and verbatim records constitute the documents of PACE. Working documents include reports,70

67

Drzemczewski and Lowis (2015), p. 310. Article 5 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. 69 Para. I, Statutory Resolution (93)26 on Observer Status. 70 Committees prepare the report individually; it includes a draft resolution and draft recommendations to be adopted by the Assembly at one of the part-sessions. 68

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109

opinions,71 motions for recommendations and resolutions,72 writing declarations,73 questions74 and more.

6.3.5

Relations Between the Committee of Ministers and the Parliamentary Assembly

In the beginning of this subsection, it should be noted that the expression “relation with the parent organization” could be applicable to the case of the OSCE PA, while it is hardly right to use it for PACE. PACE is an undisputable part of the organization, one of the two main organs. The Statute of the CoE and the Rules of Procedure of the Assembly, as well as the rules for the meetings of the Committee of Ministers and its deputies, contain provisions on relations between the Assembly and the Committee of Ministers. The Committee of Ministers provides the Assembly with information via written or oral communication and activity reports. The Committee of Ministers meets during every part-session of the Assembly. It has an obligation to respond to recommendations from the Assembly.75 Some of these recommendations modify earlier decisions of the Committee. Hence, PACE is involved in the decision-making process indirectly via the recommendations procedure. In the beginning, the practice to rapidly adopt replies by the Committee of Ministers to the text of the Assembly was not very successful, because, for a long period of time, Articles 19 and 20 of the Statute were used together and required that decisions regarding statements for the Assembly were taken unanimously. This was the reason for huge delays. In 1994, the deputies decided to change the practice and to allow the adoption of replies by a qualified majority (a two-thirds majority of the representatives casting a vote and a majority of the representatives entitled to sit on the Committee of Ministers), considering that every effort would be made to reach a consensus within a reasonable period of time.76

71

The type of document as an opinion is used by the one committee for the expression of opinion regarding the report of the other committee. 72 The type of document as a motion is usually a short document regarding resolutions, recommendations, and dismissals. They have to be tabled by 20 or more members of the assembly belonging to at least five national delegations. The motion then is referred to committees for report and possibly to other committees for opinion. 73 This type of document allows members of the Assembly to express their views on some matters. It has to be signed by at least 20 representatives or substitutes of four nationalities and two political parties. 74 They are addressed to the Committee of Ministers. 75 Article 15 of the Statute of the CoE. 76 The 519 bis meeting of the Ministers’ Deputies (4 November 1994)—Point 2.2 para. C.

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The Ministers’ Deputies accepted the importance of rapidly adopting replies to the recommendations of PACE.77 Initially, nine months’ deadline was set for the reply.78 Later, another commitment was made with regard to the adoption of replies to the Assembly. In accordance with this, the new deadline was set for replies “in principle in time for the second part-session following that at which they were adopted that is to say within less than six months whenever possible (the ninemonth time limit becoming a maximum for exceptional cases).”79 The commitment was amended again in 2011 and the deadline was decreased to three months. Draft replies to written questions or recommendations of the Parliamentary Assembly shall be “as short, concise and result-oriented as possible.”80 In accordance with Rule 58 of the Assembly’s Rules of Procedure, “Representatives and Substitutes may at any time address to the Committee of Ministers, or to its Chairperson-in-office, written questions bearing on matters within the competence of the Committee of Ministers.” Consequently, the Committee of Ministers has to reply not only to the recommendations of the Assembly, but also to the written questions from the members of the Assembly. In 2008, a simplified procedure for dealing with questions from members of the Parliamentary Assembly was adopted at the 1015th meeting of the Committee of Ministers.81 This type of activity of the Committee of Ministers demonstrates the will to speed up replies to written questions, and, as a consequence, to enhance dialogue and communications with the Parliamentary Assembly. According to Article 19 of the Statute and Rule 57 of the Assembly’s Rules of Procedure, the Committee of Ministers is obliged to report about its activities at each session of the Assembly. These reports are the main source of the activities of the Council. Reports82 include replies given to the Assembly’s recommendations and opinions, and contain a summary of its activities at the intergovernmental level. Also, they provide details on the implementation of the intergovernmental program. The statutory report is presented in the form of a communication, which the Assembly considers during each part-session. The Chairperson-in-Office of the Committee presents it orally. After the speech, parliamentarians may ask questions.

77

Para. 3, Item 1.3, CM/Del/Dec(98) 615, the 615th meeting of the Ministers’ Deputies, 20 January 1998. 78 Para. 2, ibid. 79 Reply from the Committee of Ministers to the Parliamentary Assembly Recommendation 1567 on parliamentary scrutiny of international institutions, Para. V, CM/AS(2003) Rec 1567-final, 23 January 2003. 80 Item 1.6 “Revised guidelines for the reform and modernization of the Committee’s working methods” of CM(2011)96-final, the 1134th meeting of Ministers’ Deputies, 15 February 2012. 81 CM(2008)4-final, 1.6 Procedure of the Committee of Ministers for dealing with questions from members of the Parliamentary Assembly. 82 The reports are opened, not classified documents, available at http://www.coe.int/en/web/cm/ statutory-report (01.12.2016).

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These questions “must fall within the competence of the Organization and the sphere of responsibility of the Committee of Ministers.”83 The system of communication between the Committee of Ministers and the Assembly creates a unique situation where representatives of governments from one country are obliged to answer questions of the parliamentarians from another. Certainly, for the most part, the subject matter of the questions asked is well known prior to submission, however, the procedure of “spontaneous” questions has been applied from the beginning of 2008. The main organ of the CoE for communication and coordination between the Committee of Ministers and the Parliamentary Assembly is the Joint Committee. In accordance with Statutory Resolution (51)30, it examines common problems for these two organs, draws their attention to important questions within the interest of the CoE, makes proposals for the draft agenda of the Assembly’s and Committee’s sessions, and monitors ways of giving practical effect to the recommendations adopted by them. The Committee includes twelve members from both organs (five from the Committee of Ministers and seven from the Assembly). A quorum comprises three representatives of the Committee of Ministers and five representatives of the Assembly. The OSCE PA does not have a similar organ for communication that includes representatives from both the OSCE and the OSCE PA and coordinates their work. Partly, the Office of the OSCE PA in Vienna carries out the communication functions between the main organization and its parliamentary Assembly. Moreover, the main organization does not demonstrate a clear desire to change the situation and to take any measures to enhance the dialogue with the Assembly. The President of the Assembly is invited to attend the Committee of Ministers meetings.84 In addition, the Chair of the Deputies and the President of the Assembly meet regularly to inform each other about their work. An analysis of the Committee of Ministers’ documents85 demonstrates its strong will to encourage dialogue with the Assembly to find consensus with regard to common questions. Moreover, the Parliamentary Assembly and the Committee of Ministers have agreed that the effectiveness of the organization’s action “depends largely on efficient cooperation between its two statutory organs, through which the

83 Para. 9, Guidelines for questions to guest speakers, Additional provisions relating to Assembly debates (adopted by the Bureau of the Assembly on 25 March 2002 and 17 December 2007 See Doc. 11490 Part 1). 84 CM/AS(2003)Rec1567-final, Parliamentary Assembly Recommendation 1567 on parliamentary scrutiny of international institutions, Reply from the Committee of Ministers adopted at the 825th meeting of the Ministers’ Deputies, 23 January 2003. 85 For example, Item 1.7 Enhanced Dialogue between the Parliamentary Assembly and the Committee of Ministers in CM(2009)142 (16 September 2009); CM/AS(2003)Rec1567-final, Reply from the Committee of Ministers adopted at the 825th meeting of the Ministers’ Deputies (22 January 2003); CM(2001)72, Appendix [8] on Three key ideas for reinforcing cooperation between the Committee of Ministers and the Parliamentary Assembly; Committee of Ministers’ Resolution (89) 40 on the future role of the Council of Europe in European construction.

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governments and parliaments of member states are bringing their contribution to the building of a greater Europe without dividing lines.”86 However, the situation regarding participation of the Assembly in the decisionmaking process is not simple. In 2002, the Assembly adopted the text of Recommendation 1567 (2002), where it recommends to the Committee of Ministers to establish a co-decision-making process for the adoption of draft treaties. The Committee of Ministers replied that in practice: [the] Ministers’ Deputies made an effort to take account of the positions adopted by the Assembly during the consultation process before finally adopting conventions. In view of its positive assessment of this practice, which has been applied since May 1999, the Committee of Ministers intends to continue with it, without going so far as introducing a formal codecision-making process as envisaged by the Assembly.87

Consequently, the parliamentary dimension has an influence on the decisionmaking process of the Council de facto because of the commitment of the Committee of Ministers to take the Assembly’s view into account. It is unlikely that Ministers will accept the establishment of the co-decision-making process and the Assembly will de jure participate in it. The situation changed in respect of a case of serious violation by a Member State of its statutory obligations in 2019. PACE proposed to set up a joint response procedure, in addition to existing procedures, included in Resolution 2277 (2019) and Recommendation 2153 (2019), “Role and mission of the Parliamentary Assembly: main challenges for the future,” adopted in April 2019. It happened after Russia’s reaction to the decision to apply sanctions vis-à-vis Russia’s parliamentary delegation, when the Russian Government decided to suspend payment of its contribution to the budget of the CoE. That led to a major budgetary crisis threatening the Council of Europe’s key activities. PACE proposed the procedure, “which could be initiated by both CoE’s statutory organs, ‘in order to strengthen the Organisation’s ability to react more effectively in situations where a member State violates its statutory obligations or does not respect the standards, fundamental principles and values upheld by the Council of Europe.’”88 The Committee of Ministers supported the proposal and expressed its firm commitment to making the PACE’s proposal operational as soon as possible.89 The next year PACE adopted a provisional version of Resolution 2319 (2020), wherein the basic principles of the joint response procedure were stated, where: [a] procedure, of an exceptional nature, is complementary to existing rules and regulations . . . and its implementation will not require any changes to the Statute. It will not affect

86 CM/AS(2003)Rec1567-final, Parliamentary Assembly Recommendation 1567 on parliamentary scrutiny of international institutions, Reply from the Committee of Ministers adopted at the 825th meeting of the Ministers’ Deputies, 23 January 2003. 87 Ibid., para. 3(ii). 88 Resolution 2287 (2019), Strengthening the decision-making process of the Parliamentary Assembly concerning credentials and voting, 25 June 2019, para. 4. 89 129th Session of the Committee of Ministers, CM/Del/Dec(2019)129/2, Helsinki, 17 May 2019.

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existing procedures arising from statutory or conventional control mechanisms, neither will it affect the Assembly’s existing monitoring procedure.90

Consequently, the PACE possesses an indirect influence on the decision-making process, because the Committee of Ministers cannot just consider and ignore the Assembly’s recommendations. The Statute requires a report from it to the parliamentarians, in which it explains its position regarding the disputable questions. Additionally, the Assembly gets the right to initiate the above-described procedure, that is, direct participation in the decision-making process of the CoE. If the procedure is adopted, the PACE becomes a deliberative organ of the Council of Europe with extremely limited decision-making power, in an exceptional case regarding a serious violation by a Member State of its statutory obligations.

6.4

PACE’s Activities

The institutional mechanisms of PACE that includes inter alia nine permanent committees are quite varied. Therefore, the analysis of selected aspects PACE’s activities will be done in this part. The activities of PACE will be studied through the examples of the work of the Committee on Legal Affairs and Human Rights (CLAHR).91 The Committee has a wide area of activities officially assigned to it. According to Resolution 1842 (2011), the CLAHR “shall consider all legal and human rights matters (including proposals for and the preparation of statutory opinions on draft Council of Europe conventions) which fall within the competence of the Council of Europe.”92 Recently, the Committee’s work has focused on reinforcing the system of human rights protection in Europe, respect for human rights in the fight against terrorism, combating impunity, eradicating judicial corruption and upholding the rule of law.93 The CLAHR prepares the texts that become a basis for the PACE’s opinions, when it is requested by the Committee of Ministers, on draft conventions prior to their final

90 Resolution 2319 (2020) Provisional version, Complementary joint procedure between the Committee of Ministers and the Parliamentary Assembly in response to a serious violation by a member State of its statutory obligations, 29 January 2020, para. 4.2. 91 The CLAHR includes three sub-committees: on Human Rights, on Crime Problems and the Fight against Terrorism; and on implementation of judgments of the ECtHR. 92 Resolution 1842 (2011) adopted on 7 October 2011, Appendix VI—Terms of reference of Assembly committees, Complementary Texts to the Rules of Procedure, ed. 2014., p. 120. 93 AS/Jur/Inf (2015) 01 of 9 January 2015 Work of the Committee on Legal Affairs and Human Rights (AS/Jur): an overview, Information document; AS/Jur/Inf (2017) 01 of 20 January 2017, Work of the Committee on Legal Affairs and Human Rights (AS/Jur): an overview, Information document.

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adoption (as, for instance, on the draft Protocols No. 15 and 16 to the European Convention on Human Rights (ECHR)).94

6.4.1

Supervising the Implementation of ECtHR Judgments

Under Resolution 1842 (2011)95 the Committee is committed to guaranteeing the long-term effectiveness of the Convention system. It has considered the issue of the effectiveness of the ECHR at national level, and regularly examines the implementation of the judgments of the ECtHR. The work of the Assembly is directed at increasing the role of parliaments in relation to human rights. Its two main aims of work are ensuring the rapid and full execution of the judgments of the ECtHR and supporting human rights discussion at national level.96 Despite the fact that, according to Article 46 (2) of the ECHR: “The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution,” PACE plays an active role regarding this issue. The Assembly gets involved through resolutions and recommendations. The Parliamentary Assembly, particularly the CLAHR, has increasingly assumed an important role in supervision for parliamentarians at the national level. Its Resolution 1856 (2012) on “Guaranteeing the authority and effectiveness of the ECHR” stipulates: National parliaments can play a key role in stemming the flow of applications submerging the Court [ECtHR] by, for instance, carefully examining whether (draft) legislation is compatible with Convention [on Human Rights (ECHR)] requirements and by ensuring that States promptly and fully comply with the Court’s judgments.97

The Committee applies the approach of “name and shame” to states that do not carry out or that breach their commitments under the ECHR.98 In addition, the CLAHR tries to build the capacity of national parliaments using their dual (double) mandate of parliamentarians as members of the PACE and of their respective national parliaments to hold the executive to account for its action or inaction in response to judgments.

94 Schmahl and Breuer (2017), para. 7.17; (AS/Jur): an overview AS/Jur/Inf (2015) 01 of 9 January 2015, Work of the Committee on Legal Affairs and Human Rights, Information document. 95 Resolution 1842 (2011), Section B, part II, para. 2 (i): “the committee shall in particular consider all matters concerning the human rights treaties and mechanisms of the Council of Europe, notably the European Convention on Human Rights and its protocols, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and other international instruments”. 96 Drzemczewski and Lowis (2015), p. 311. 97 Resolution 1856 (2012) on Guaranteeing the authority and effectiveness of the ECHR, para. 3. 98 Donald (2014), p. 179.

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Article 1 of the ECHR states that “the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.” Hence, the convention system is subsidiary in the sense that the primary responsibility for protecting human rights lies with the states at the national level. Therefore, the member states are under the duty to guarantee that the Convention has been properly implemented in their law.99 A. Drzemczewski, the former Head of the Secretariat of the CLAHR, considers that the full use of the parliamentarians’ dual mandate is significant to ensure that standards guaranteed by the ECtHR are effectively protected and provided at the national level. In the case of good guarantees at the domestic level, individuals do not need to seek justice in Strasbourg.100 It is also the solution to reduce the overload of the ECtHR.101 The subsidiary nature of the ECHR was emphasized at the High Level Conference on the Future of the European Court of Human Rights in the Brighton Declaration, where the State Parties to the Convention affirmed “the strong commitment . . . to fulfil their primary responsibility to implement the Convention at national level” and expressed determination “to ensure effective implementation of the Convention at national level by taking the following specific measures, so far as relevant . . . Implementing practical measures to ensure that policies and legislation comply fully with the Convention, including by offering to national parliaments information on the compatibility with the Convention of draft primary legislation proposed by the Government.”102 In addition, the recent Protocol No. 15 (not yet in force)103 amending the Convention on the Protection of Human Rights and Fundamental Freedoms will add the following new recital at the end of the preamble of the ECHR: “Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention.” The issue of implementation of judgments of the ECtHR has been on the PACE’s agenda since 2000. In twenty years, MPs have debated eight reports, and adopted eight resolutions and seven recommendations. The detailed information on the resolutions adopted by the Assembly and prepared by the CLAHR supportive documents are provided in Table 6.2. 99

Hunt (2015), p. 470. Drzemczewski and Lowis (2015), p. 313. 101 According to the ECHR—Analysis of Statistics in 2016, the stock of allocated applications pending before the Court increased over the year, by 23% from 64,850 to 79,750. On 30.06.2017 the number of applications pending before a judicial formation was already 80,350. 102 High Level Conference on the Future of the European Court of Human Rights, Brighton Declaration, part A, para. 9(a), (c(ii)). 103 Protocol 15 will enter into force as soon as all the State Parties to the Convention have signed and ratified it. Italy and Bosnia and Herzegovina had not ratified it as at May 10, 2020. 100

Date 28.09.2000

22.01.2002

23.09.2002

Resolution Resolution 1226 (2000) Execution of judgments of the European Court of Human Rights

Resolution 1268 (2002) Implementation of decisions of the European Court of Human Rights

Resolution 1297 (2002) Implementation of decisions of the European Court of Human Rights by Turkey

No. 1

2

3

Table 6.2 Implementation of ECtHR judgmentsa

1576 (2002)

1546 (2002)

Doc. 9537b

Doc. 9307

5.09.2002

21.12.2001

Supportive Documents Recommendation Report No. Date No. 12.07.2000 1477 (2000) Doc. 8808

Erik Jurgens

Erik Jurgens

Rapporteur Erik Jurgens, Netherlands, Socialist Group

Report content Specified seven types of problems for implementation, proposed a number of measures at both national and international levels designed to ensure that judgments and Committee of Ministers’ decisions are executed. Case study. Austria, Belgium, France, Greece, the Netherlands, provided positive reports regarding the ongoing changes in national legislation. The situation in the UK, Italy and Turkey was highlighted. It was suggested that the special procedure of consultation is necessary with the Turkish national delegation and with the Turkish Government. Case study, guarantees of Art. 2, 3, 6 and 10 of the ECHR, the case of Cyprus against Turkey (problem of missing persons and violations of the human rights of the Greek Cypriots in Northern Cyprus).

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6

5

4

Resolution 1516 (2006) Implementation of judgments of the European Court of Human Rights

Resolution 1381 (2004) Implementation of decisions of the European Court of Human Rights by Turkey Resolution 1411 (2004) Implementation of decisions of the European Court of Human Rights

1764 (2006)

1684 (2004)

23.11.2004

2.10.2006

–

22.06.2004

Doc. 11020

Doc. 10351

Doc 10192

Erik Jurgens

Erik Jurgens

Erik Jurgens

1.06.2004

21.10.2004

18.09.2006

(continued)

Case study (Austria, Belgium, France, Italy, Poland, Romania, Switzerland, the UK). Cases were selected on the basis of the following criteria: the time which had elapsed since the Court’s decision; the existence of an Interim Resolution of the Committee of Ministers; the importance of the issues raised. Examination of cases in Italy, Russia, Turkey, Ukraine and the United Kingdom. Special in situ visits were paid by the Committee’s rapporteur to these states to examine, with national decisionmakers and parliaments, the urgent need to solve outstanding problems. Analysis of the reasons for non-compliance and difficulties in execution of the ECtHR judgments in Bulgaria, France, Germany, Greece, Latvia, Moldova, Poland and Romania. But positive developments are recognized in several states (for example in Portugal, Bulgaria).

Analysis of the cases concerning violations of the ECHR.

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No. 7

Resolution Resolution 1787 (2011) Implementation of judgments of the European Court of Human Rights

Table 6.2 (continued)

Date 26.01.2011

Supportive Documents Recommendation Report No. Date No. 20.12.2010 1955 (2011) Doc. 12455 Rapporteur Christos Pourgourides, Cyprus, EPP/CDc

Report content The main problems continue to be excessive length of judicial proceedings (Italy), chronic non-enforcement of domestic judicial decisions (Russia, Ukraine), deaths and ill-treatment caused by law enforcement officials and lack of effective investigations into them (particularly apparent in Russia and Moldova) and unlawful or over-long detention on remand (Moldova, Poland, Russia, Ukraine).

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Resolution 2075 (2015) Implementation of judgments of the European Court of Human Rights

30.09.2015

2079 (2015)

Doc. 13864

9.09.2015

Klaas de Vries, Netherlands, SOCd The major problems are identified in Italy, Turkey, the Russian Federation, Ukraine, Romania, Greece, Poland, Hungary and Bulgaria. The problems include length of judicial proceedings, unlawful detention on remand and/or its excessive length, non-enforcement of domestic judicial decisions, deaths and ill treatment caused by law-enforcement officials and lack of effective investigations into them, poor conditions in detention facilities.

b

Access to hyperlinks at 08.08.2017 Electronic version of the document is not available. See: PACE working papers, 2002 ordinary session (fourth part), 23–27 September 2002, Vol. 7: Documents 9468 & 9501-9537, 28 July 2003, p. 225 c Group of the European People’s Party d Socialists, Democrats and Greens

a

8

6.4 PACE’s Activities 119

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The information for the reports is collected from different sources, such as NGO reports, communications with national authorities and parliamentary representatives. Also, between 2006 and 2010, the rapporteurs E. Jurgens and C. Pourgourides visited Member States with a high number of non-implemented ECtHR judgments. The rapporteurs had the opportunity to discuss the reasons for failure to execute the judgments with members of the national parliaments and government representatives on the ground. The aim of the in situ visits was “to see how, with the aid of parliamentarians in the relevant countries, the national authorities could be ‘encouraged’ to speed up the implementation of the reforms and measures needed for the prompt and complete execution of judgments.”104 Unfortunately, national authorities from the countries concerned did not provide PACE with information on any progress for a long period of time, despite the fact that most of them agreed with the necessity and urgency of the reforms and promised to improve the provision of information on any progress.105 In 2012, the CLAHR applied a new working method. It held a series of hearings106 with the heads of ten107 parliamentary delegations from the countries which were specified in the Report Doc. 12455. The main goal of these hearings for the Committee was to not only identify states which fail to act in accordance with the ECHR but to discuss the issue publicly, thereby blowing a whistle.108

6.4.2

Blacklists and Secret Detentions

On 16 November 2007, the CLAHR presented the Report on the United Nations Security Council and European Union Blacklists.109 The report analyzed the de-listing procedures and the means of appeal available to individuals or entities placed on the lists, and examined whether or not the procedures were compatible with the guarantees of the ECHR as interpreted by the Strasbourg Court. Its publication has helped to revive the discussion of this question in political and academic circles among the Member States of the Council of Europe. For instance, Switzerland undertook initiatives for the establishment of an independent board of appeal to review the lists at regular intervals and process applications for 104

PACE Doc. 13864 of 9 September 2015, Report on Implementation of Judgments of the European Court of Human Rights, para. 7. 105 For example: Bulgaria (para. 20 of the Report Doc. 12455), Greece (para. 33 of the Report Doc. 12455). 106 AS/Jur (2013) 13 of 28 March 2013, Implementation of Judgments of the European Court of Human Rights, Extracts from the minutes of hearings, held in Strasbourg in April 2012, in June 2012, in October 2012 and in January 2013. 107 Italy, Russia, Moldova, Poland, Romania, Ukraine, Turkey, Bulgaria, Greece and the UK. 108 Drzemczewski and Lowis (2015), p. 316. 109 Doc. 11454 of 16 November 2007, Report, United Nations Security Council and European Union Blacklists. Rapporteur: D. Marty.

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de-listing.110 Moreover, the Swiss Parliament in 2010 initiated a procedure to “force” the Swiss Government to notify the UN Security Council (SC) that the Swiss authorities should no longer apply the relevant sanctions imposed by the SC, if blacklisted individuals were not provided—within a three-year period—with adequate fair trial protection in accordance with Articles 6 and 13 of the ECHR.111 On 12 June 2006, the CLAHR issued the Report on Alleged Secret Detentions and Unlawful Inter-State Transfers of Detainees Involving Council of Europe Member States.112 It analyzed functioning of a wider network of detention facilities such as the US Naval Base at Guantanamo Bay and military prisons such as Bagram in Afghanistan and Abu Ghraib in Iraq, and ten individual cases. In the report, it made a number of conclusions both about human rights violations and the responsibilities of some Council of Europe Member States which are bound by the ECHR and the European Convention for the Prevention of Torture (CPT). Notably, the EP, in its Resolution on the Alleged Use of European Countries by the CIA for the Transportation and Illegal Detention of Prisoners, stressed the convergence of the findings of PACE’s work, particularly the EP Temporary Committee on the Alleged Use of European Countries by the CIA for the Transportation and Illegal Detention of Prisoners, and the CLAHR.113 An outstanding example of the success of this activity is that Poland agreed to pay to terror suspects Al Nashiri and Abu Zubaydah each EUR 100,000 damages, as ordered by the Strasbourg Court,114 following their torture on Polish soil. Poland provided the Committee of Ministers with details on other efforts to comply with the ECHR rulings in these two cases. It was specified that Mr. Al Nashiri was paid the whole sum, while the amount of EUR 30,000, awarded as costs and expenses, was paid to Mr. Abu Zubaydah’s lawyer. With regard to the remaining amount of EUR 100,000 awarded by the ECHR as non-pecuniary damage, on 13 May 2015, the Polish Ministry of Foreign Affairs submitted to the relevant domestic court a motion to deposit the above amount in a court deposit because its national regulations did not allow payment of the awarded money to the applicant Abu Zubaydah, who was listed in the UN and EU sanctions lists, pursuant to paragraph 8(c) of UN Security Council Resolution 1333 (2000).115

110

Doc. 11454 Addendum of 22 January 2008, Addendum to the report on UN Security Council and European Union Blacklists, Rapporteur: D. Marty. 111 Drzemczewski and Lowis (2015), p. 327. 112 Doc. 10957 of 12 June 2006, Report on Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states, Rapporteur: D. Marty. 113 European Parliament Resolution on the Alleged use of European Countries by the CIA for the Transportation and Illegal detention of prisoners (2006/2200(INI)) of 14 February 2007, para. 33. 114 Case of Al Nashiri v. Poland, application No. 28761/11, ECtHR, Judgment of 24 July 2014; Case of Husayn (Abu Zubaydah) v. Poland, application No. 7511/13, ECtHR, Judgment of 24 July 2014. 115 Timeline: “The Council of Europe’s investigation into CIA secret prisons in Europe” is available at: http://assembly.coe.int/nw/xml/News/News-View-en.asp?newsid¼5722&lang¼2 (18.09.2018).

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Relations with the CIS Regarding the ECHR

PACE does not only elaborate reports and monitor the implementation of the ECtHR judgments and provide hearings, it also checks the compatibility of other newly created international legal instrument with the ECHR. That happened when the Commonwealth of Independent States (CIS) issued the Convention on Human Rights and Fundamental Freedoms on 26 May 1995 in Minsk, Belarus. On that day, it was signed by seven of the eleven CIS member states (Armenia, Belarus, Georgia, Kyrgyzstan, Moldova, Russia, Tajikistan) and has since been ratified by four of these, the Russian Federation (21 December 1995), Tajikistan (1 July 1997), Kyrgyzstan (21 August 2003) and Belarus (11 August 1998). The Convention entered into force on 11 August 1998 after the third ratification. The Assembly was concerned about the possible incompatibility of the CIS Convention with the ECHR in respect of Member States of the CIS wishing to join the CoE, and those which were already party to the ECHR.116 Initially, this issue was referred to PACE by Moldova, which was seeking membership of the CoE at that time. The Assembly prepared the opinions on the applications by Moldova, Ukraine and Russia for membership of the CoE. It admitted that one of the commitments of the applicant which had signed the CIS Convention but not ratified it yet: “to withhold ratification of the CIS Convention on Human Rights until the implications of the co-existence of that Convention and the European Convention on Human Rights . . . as far as the control mechanism are concerned, have been clarified by the Council of Europe; and . . . not to ratify the . . . CIS Convention without the prior agreement of the Council of Europe;”117 for those applicants who did not sign the CIS Convention: “not to sign the Convention and other relevant CIS documents, given the fact that individual applications submitted under this Convention might render impossible the effective use of the right to individual application under Article 25 of the ECHR;”118 and for those which had ratified the CIS Convention: “to ensure that the application of the CIS Convention on Human Rights does not in any way interfere with the procedure and guarantees of the ECHR.”119 The Secretary General of the CoE requested expert analysis on the issue. Professor Antônio Augusto Cançado Trindade and Professor Jochen A. Frowein were asked “to carry out an analysis of the legal implication for States that intend to ratify both the European Convention on Human Rights and its protocols and the CIS Human Rights Convention, with particular emphasis on the control mechanism set

116

At that time: Moldova, which had signed CIS Human Rights Convention, had been a member state of the CoE since 13.07.1995, Ukraine, which had not signed CIS Human Rights Convention had been a member state of the CoE, since 9.11.1995 and Russia, which had ratified the CIS Convention, had been a member state of the CoE since 28.02.1996. 117 Opinion 188 (1995) on the application by Moldova of 27.06.1995, para. 11(e). 118 Opinion 190 (1995) on the application by Ukraine of 25.09.1995, para. 12.3. 119 Opinion 193 (1996) on the application by the Russian Federation of 25.01.1992, para. 10.16.

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up thereafter.”120 The report was published on 20 December 1995.121 In addition, upon the request of the CLAHR, the Venice Commission prepared an opinion on the legal problems arising from the co-existence of the ECHR and the CIS Convention, which was based on the report by Professor G. Malinverni.122 On 3 May 2001, the CLAHR issued a report123 based on the work of these researchers and its own scrutiny of the question. The committee concluded that “having multiple procedures regarding the protection of human rights can only be justified if it enhances the protection it is intended to extend.”124 The CIS Convention does not have this effect for the parties to the ECHR, which are simultaneously members of the CIS. It was found that the CIS Convention duplicated already existing international human rights norms and regimes, and nothing significantly new for human rights protection was found. Indeed, the duplication created obstacles for the person complaining of a violation of human rights. The CIS Convention created its own mechanism of human rights protection. According to Article 34 of the document, monitoring of the execution of the Convention will be provided by the Human Rights Commission of the CIS (HRC CIS). The PACE asked itself whether any application to the ECtHR could be declared inadmissible if that had already been lodged before the HRC CIS. The ECHR stipulates under Article 35.2 (b) that the Court shall not deal with any application that has already been submitted to another procedure of international investigation or settlement. Looking for a solution to the problem, the CLAHR applied the concept that “the ICJ, the Committee set up under the UN Convention on the Elimination of All Forms of Racial Discrimination, the Court of Justice of the European Communities and the bodies established within the International Labour Origination are regarded as institutions affording procedures of international investigation or settlement.”125 Consequently, there was the possibility that the ECtHR would apply this concept and would consider the CIS Commission, according to Article 35.2 (b) of the ECHR, as “another procedure of international or settlement”

120

Drzemczewski (1996), pp. 157–158. The two analyses of the legal implication for states that intend to ratify both the European Convention on Human Rights and its protocols and the Convention on Human Rights of the Commonwealth of Independent States by Antônio Augusto Cançado Trindade and by Jochen A. Frowein are available in the Human Rights Law Journal, Vol. 17, No 3–6, 15 October 1996, pp. 164–184. 122 CDL (98) 17 of 26 February 1998. The document. was adopted by the Venice Commission at its 34th plenary session, 6–7 March 1998. 123 Report on the Co-existence of the Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States and the European Convention on Human Rights, Doc. 9075 of 3 May 2001. Rapporteur: S. Holovaty. 124 Report on the Co-existence of the Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States and the European Convention on Human Rights, Doc. 9075 of 3 May 2001, para. 34. 125 Ibid., para. 21. 121

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and dismiss an application regarding the same matters if it was already being examined by the CIS Commission on Human Rights. However, the positive aspect of the CIS Convention is that it provides a regime which offers human rights protection to post-Soviet Union States that are not members of the Council of Europe. The level of protection provided by the document is minimal, but its existence is better than the absence of any system for human rights protection. Moreover, human rights protection at the national level can be better provided by the CIS Convention if it is applied together with the UN Covenant on Civil and Political Rights and its First Optional Protocol. In May 2001 PACE adopted the Resolution 1249 (2001) on the coexistence of the Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States and the European Convention on Human Rights. The Assembly was concerned about the compatibility of the two documents. It was found that the CIS Convention: offers less protection than the ECHR, both with regard to the scope of its contents, and with regard to the body enforcing it – the CIS Commission cannot offer the guarantees of impartiality and independence offered by the European Court of Human Rights, nor do its recommendations enjoy the same enforceable character as judgments issued by that Court.126

Moreover, the Assembly reiterated its opinion that: no regional human rights mechanism – neither the CIS Convention nor the European Union’s Charter of Fundamental Rights and Freedoms – should be allowed to weaken the unique unified system of human rights protection offered by the ECHR and its European Court of Human Rights . . . adherence to the ECHR system of protection should be mandatory and exclusive for members (and prospective members) of the Council of Europe.127

At the same session, PACE adopted Recommendation 1519 (2001), which asked the Committee of Ministers to request the ECtHR to give an advisory opinion on the interpretation of Article 35 paragraph 2(b) of the ECHR with regard to the issue of co-existence of two systems for the protection of human rights.128 The court decided that the request for an advisory opinion was not within its competence. However, it recognized the specific procedure that the CIS Convention established. The ECtHR considered: that it cannot be excluded that the question whether the procedure before the CIS Commission can be regarded as ‘another procedure of international investigation or settlement’ within the meaning of Article 35 § 2 (b) might have to be considered in the future in the

126

Resolution 1249 (2001), Co-existence of the Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States and the European Convention on Human Rights. Text adopted by the standing committee, acting on behalf of the assembly, on 23 May 2001, para. 4. 127 Ibid., para. 5. 128 Recommendation 1519 (2001) Co-existence of the Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States and the European Convention on Human Rights, 23 May 2001, para. 3.

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context of the Court’s examination of an individual application lodged under Article 34 of the Convention. . . . this would entail an analysis of, inter alia, the independence and impartiality of the CIS Commission, the nature of its proceedings and the effect of its decisions.129

The last sentence may indicate that the ECtHR would be ready to consider an application lodged after a previous application to the CIS Commission.

6.5

Comparative Analysis of the OSCE PA and PACE

This section provides a comparative table to sum up the results of this study regarding the two international parliamentary assemblies—the OSCE PA and the PACE. In 2014, a group of researchers proposed a list of criteria to study international parliamentary assemblies.130 The list was used as a basis for the comparative table of the OSCE PA and the PACE that follows. The authors formulated the criteria (“dimensions”) and sub-criteria that define the nature of the international parliamentary assemblies: constitutional status (an affiliation of the parliamentary assembly to the IO), institutional authority (competences, autonomy) and institutionalization (capacity, composition).131 In the current study, some sub-criteria were modified and added for the comparative analysis of two particular international parliamentary assemblies. The OSCE PA and PACE present two models of European regional parliamentary assemblies. Both have a lot of common characteristics, however, they are significantly different. Both Assemblies were established in important periods of the world and European history. PACE was seated at the Second World War and at the beginning of the Cold War. It was a response to the inhuman events which happened in the first half of the twentieth century. The OSCE PA was created after the Cold War and the fall of the Berlin Wall. Its establishment heralded the victory of the democratic society over autocratic government at that time. The ideas promoted by the assemblies reflect the spirit of the time. Many countries were very open to cooperate in promoting and protecting such values as human rights, democracy and global security. The creation of an area of democracy and the rule of law, based on the fundamental values of human rights, became a cornerstone of PACE and the OSCE PA establishment. Despite the fact that the OSCE PA was created with already existing assemblies such as PACE in mind, it does not duplicate the latter. PACE has more power. The main difference is in the place of the Assemblies within international organizational structure. PACE is a statutory body of its organization, whereas the OSCE PA is an

129

Decision on the Competence of the Court to Give an Advisory Opinion, Strasbourg, 2 June 2004, para. 32. 130 Rocabert et al. (2014). 131 Rocabert et al. (2014), p. 6, p. 10, p. 17.

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independent body. It is likely that the solution to the OSCE’s legal personality problem could also solve the question of the OSCE PA’s status as an international organization. The Draft Convention on the International Legal Personality, Legal Capacity, and Privileges and Immunities of the OSCE includes only a small mention of the status of the Assembly’s staff members: “For the purposes of the present Convention, members of the OSCE Parliamentary Assembly, as well as officials of its secretariat, taking part in the work of the OSCE as identified by the OSCE Chairman-in-Office, shall be treated as Other Persons Performing Tasks of the OSCE.” Nothing regarding the Assembly as a body of the organization was expressly laid down. The absence of OSCE statutory documents such as a Convention creates obstacles to performing its duties. It also could stop using the lack of clarity in OSCE documents in favor of particular situations and political interests. Regarding the competences, despite the fact that both assemblies have only deliberative functions, there are some differences between them. PACE has an indirect opportunity to affect the decision-making process. The Committee of Ministers has to reply to the Assembly’s recommendations. It creates some sort of accountability of the Committee of Ministers before the Parliamentary Assembly, because the latter’s recommendations cannot be left without consideration by the decision-making body. As was described above, the OSCE PA is a model of a parliamentary assembly that is an independent organ. On the one hand, autonomous status provides the Assembly with such advantages as non-accountability to the decision-making body, as well as financial and administrative independence. On the other hand, the Assembly does not have important competences. Despite the fact that the OSCE PA keeps in focus ten countries more than PACE, its staff and financial possibilities are several times smaller than PACE’s. PACE represents a model of an assembly that is a non-autonomous statutory organ of an intergovernmental organization. It does not have financial independence; the budget of the Assembly is part of the CoE’s overall budget. One the one hand, PACE has the right to decide how to spend its budget money without any preapproval by the Committee of Ministers. On the other hand, PACE has to make a proposal on expenditure, which is a kind of accountability to the CoE’s decisionmaking body. Consequently, there are two models of international parliamentary assemblies with differences in how they depend on their parent organization. The OSCE PA is an autonomous body, while PACE is an essential part of the CoE. The OSCE cannot significantly influence the finance, agenda and administrative structure of its Assembly. Other aspects of this independence are: actual inability to participate in the decision-making process through an indirect influence on the Permanent Council, incapacity to be involved in the financial regulation of the organization, a small budget and emerging challenges for the MPs to perform their duties, as happened in the case of the travel ban described above. At the same time, PACE, being financially and administratively dependent, possesses powers and duties to influence the decision-making body. Its important role within the Council is underlined by, in particular, the fact that it elects high-ranking positions.

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Despite similar aims, such as promoting human rights, and democracy, the two international parliamentary assemblies use different working methods in their activities. As was mentioned above, the geography of the OSCE PA is broader than that of the PACE; it includes countries from Central Asia and North America. Hence, the OSCE PA has the mandate to observe and negotiate in conflict situations in the territories of Central Asia, as happened in Kyrgyzstan, or provide observation and assessment in the territory of the USA (the report on Guantanamo facilities). The OSCE’s missions and its close cooperation with the OSCE PA make the Assembly an advantageous partner for the PACE to cooperate with for gathering trusted information. The OSCE PA belongs to the “soft security organization”132—OSCE. The character of the parent organization reflects the OSCE PA’s activities and methods of work. The main methods are observation, discussion, negotiation, and reporting. The OSCE PA does not have any legally binding methods, and therefore it facilitates the frequent using and developing of “soft strategies.”133 Monitoring of the carrying out of their OSCE commitment by the participating States through cooperation with the OSCE field missions and offices, and addressing conflict situations on the ground and then discussion of the reported findings can be classified as these so-called “soft strategies” actively used by the OSCE PA. PACE is a part of a proper international organization. In comparison to the OSCE PA, PACE has access to legally binding instruments. Its reports, resolutions, and recommendations can influence the decision-making body of the CoE. The activity of PACE in supervising the implementation of the ECtHR judgments is a part of a unique mechanism within the CoE framework, which combines judicial (ECtHR) and parliamentary mechanisms (PACE). Legal analysis and reports issued by PACE alert the CoE Member States that their actions do not comply with their international obligations under the ECHR (e.g., the cases of blacklists and secret detentions). One of the main aims of PACE is the protection of human rights. PACE found collisions between international obligations (e.g., the ECHR and CIS Convention) and proposed a solution. That activity contributes to preventing a situation where an individual can be restricted in human rights protection methods. Table 6.3 summarizes the above-mentioned criteria for comparison of the OSCE PA and PACE, and demonstrates not only the differences from the administrative and institutional points of view, but concentrates on the question of the organization’s autonomy.

132 133

Schmahl and Breuer (2017), para. 37.80. Gawrich (2015), pp. 156–173.

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Table 6.3 Comparative Analysis of OSCE PA and PACE Criteria Treaty basis of the assembly Official political recognition of the assembly by the IO

Participation in decision—making process Right to make proposal to the decision-making body Power to amend IO’s statutory documents Power over accession/suspension of the IO’s members Rights to suspend national delegations/MPs or voting rights in the assembly Is assembly’s budget part of IO’s unified/overall budget Right to discuss Right to oversee expenses of the IO Accountability of the IO to the assembly Accountability of the assembly to the IO Election of high-ranking positions in the IO (e.g. heads of institutions) Rights to suspend holders of highranking positions Privileges and immunities

Negative agenda (governmental part of the IO cannot force assembly to consider a particular issue) Positive agenda (assembly is free to consider all matters it wants) Accountability of the IO’s governmental part d to Assembly

OSCE PA PACE Constitutional Status in the Organization No Yes Yes Yes Institutional authority Competences No Yes (indirect) Yes

Yes

No

No

No

Yes

Yes

Yes

Involvement in budgetary matters of the IO No Yes Yes No No

Yes No No

No

Yes

Appointment No

Yes

No

No

Autonomy Yes (only through national legislation) No

Yes (CoE Statute, General Agreement on Privileges and Immunities of the Council of Europe) No

Yes

Yes

No

Yes (Committee of Ministers via PACE’s questions)

Institutionalization Capacitya (continued)

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Table 6.3 (continued) Criteria Number of States members Number of parliamentarians Number of general committees Budget in 2016 Percentage of the IO’s unified budget Premises (ownership) Total number of secretariat employees Membership

Number Legal instruments

Method of voting

Quorum

Required majority

OSCE PA 57 323 3 3,161,000 0

PACE 47 324 9 17,968,800 4

No 21

Yes 84

Composition MPs appointed by MPs elected or appointed by the national parliaments national parliaments (RoP 3(4)) Political Groups 0 5 Decision-making process Declarations Recommendations Recommendations Resolutions Resolutions Opinions by show of hands in by using the electronic voting cases of a roll—call system (or roll—call vote because vote or of technical reason) secret ballot by show of hands or by standing (Rule 32(1))b up secret ballot (Rule 40)c Presence of a major- One third of the number of repreity of Members (Rule sentatives of the Assembly autho34) rized to vote (Rule 42) Appointments: Appointments: SG—two-thirds SG—absolute majority of the majority (Rule 40) votes cast (first ballot); relative President—absolute majority (second ballot)d President – absolute majority majority (Rule 5(1) (Rules 15 and 41.b.) Vice-presidents— Vice-presidents—absolute majormost votes (Rule 5 ity (Rule 16) (2)) Judges of ECtHRe—absolute Treasurer – majority two-thirds majority Draft of Recommendations and (Rule 5(3) Opinions to the Committee of General Committee Ministers: Officers—simple majority (Rule 36(5)) two-thirds majority (Rule 41.a.) Draft of Resolutions: Taking decisions: simple majority (Rule 41.c.) Simple majority (Rule 34(1)) (continued)

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Table 6.3 (continued) Criteria Committees (taking decision)

Type/ amount/ duration

Other sessions

Sessions OSCE PA Annual

1

Winter

1

Autumn

1

Mediterranean

1

Extraordinary sessions

OSCE PA Standing committee: Consensus-minusone (Rule 35(6)) General committees: simple majority (Rule 34 (4)(lit.b))

5 days

Convened by President at the request of two-thirds of members of the Standing Committee

PACE Standing and General Committees: majority of votes cast (Rule 47.2.)

PACE Ordinaryf

Parts. Parts. Parts. Parts. Extraordinary sessions

1

 31 daysg

1 1 1 Convened upon agreement between the President and the Committee of Ministers

a

Data as of 1st January 2016 Rules of Procedure of the OSCE PA of 21 March 2020 c Rules of Procedure of the PACE (Resolution 1202 (1999), adopted on 4 November 1999) with subsequent modifications of the Rules of Procedure d Appendix IX to the Rules of Procedure of the PACE—Elections by the Parliamentary Assembly, vi.—Regulations relating to the appointment of the Secretary General, Deputy Secretary General and Secretary General of the Assembly e Article 22 of the European Convention on Human Rights f One ordinary session of PACE is divided into four part-sessions g Usually, every part-session lasts five working days b

References Books, Book Chapters, Articles, Studies, Papers Benoît-Rohmer F, Klebes H (2005) Council of Europe–towards a pan-European legal area. Council of Europe, Strasbourg Briand A (1930) Memorandum on the organization of a system of federal European Union Cogen M (2015) An introduction to European Intergovernmental Organizations. Ashgate Publishing, Ltd, Farnham de Puig LM (2008) International parliaments. Council of Europe, Strasbourg Donald A (2014) Role of National Parliaments. Proceedings of the conference on the long-term future of the European Court of Human Rights. Council of Europe, PluriCourts, Strasbourg, p 178 ff

References

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Drzemczewski A (1996) CIS Convention on Human Rights, Minsk 1995: the legal implications for states ratifying both the ECHR and the Convention on human rights of the Commonwealth of Independent States (CIS). Human Rights Law J 17(3-6):157 ff Drzemczewski A, Dzehtsiarou K (2018) Painful relations between the Council of Europe and Russia. In: Blog of the European Journal of International Law (EJIL Talk). https://www.ejiltalk. org/painful-relations-between-the-council-of-europe-and-russia/. Accessed 05 June 2020 Drzemczewski A, Lowis J (2015) The Work of the parliamentary assembly of the council of Europe. In: Hunt M, Yowell P, Hooper HJ (eds) Parliaments and human rights: redressing the democratic deficit. Bloomsbury Publishing Plc, London, p 310 ff Evans P, Silk P (2013) The parliamentary assembly practice and procedure. Council of Europe Publishing, Strasbourg Gawrich A (2015) The European Parliament in International Election Observation Missions (IEOMs): division of labour or decreased influence? In: Stavridis S, Irrera D (eds) The European parliament and its international relations, Routledge advances in European Politics. Taylor & Francis, Milton Park, p 121 ff, Kindle Edition Hunt M (2015) Enhancing Parliaments’ role in the protection and realisation of human rights. In: Hunt Y, Yowell P, Hooper HJ (eds) Parliaments and human rights: redressing the democratic deficit. Bloomsbury Publishing Plc, London, p 470 ff Kleinsorge T (2010) Council of Europe. Kluwer Law International, Alphen aan den Møller B (2012) European security: the roles of Regional Organisations. Routledge, Milton Park Polakiewicz J (2013) Council of Europe. MPEPIL. http://opil.ouplaw.com/view/10.1093/law:epil/ 9780199231690/law-9780199231690-e607?rskey¼spimr7&result¼2&prd¼OPIL. Accessed 17 Sept 2018 Polakiewicz J, Sandvig J (2016) The Council of Europe and the rule of law. In: Schroeder W (ed) Strengthening the rule of law in Europe: from a common concept to mechanisms of implementation (Modern studies in European Law). Hart Publishing, Oxford, p 115 ff. https:// doi.org/10.5040/9781474202534 Rocabert J, Schimmelfennig F, Winzen T (2014) The Rise of International Parliamentary Institutions? Conceptualization and First Empirical Illustrations. ECPR Joint Sessions held in Salamanca, p. 10 ff Ruffert M, Walter C (2015) Institutionalised international law. C.H. Beck/Hart/Nomos, Munich Schmahl S, Breuer M (2017) The Council of Europe: its law and policies. Oxford University Press, Oxford Wassenberg B (2013) History of the Council of Europe. Council of Europe Publishing, Strasbourg Winkler G (2006) The Council of Europe monitoring procedures and the constitutional autonomy of the member states. Springer-Verlag, Wien

Chapter 7

Cooperation Between the OSCE PA and PACE

7.1

The Legal Framework of OSCE PA–PACE Cooperation

The OSCE and PACE share work areas not only in the election observation activity, but also in other areas, such as protection of human rights, democratization, prevention of terrorism, and freedom of media. The close cooperation between these assemblies helps to avoid or minimalize unnecessary overlapping mandates, tension and competition. As was described above, before the OSCE PA’s establishment in 1990, the parliamentary dimension of the OSCE/CSCE could find expression through PACE. At that time, PACE agreed to conduct an experimental procedure with the participation of representatives from some participating States of the OSCE/CSCE, having special debates on matters relating to the Helsinki process. Furthermore, the PACE decided “to introduce procedural arrangements with a view to creating an associate CSCE membership including full voting rights in CSCE debates for all non-member states of the Council of Europe, signatories of the Helsinki Final Act.”1 However, the establishment of the OSCE PA on its own basis terminated the discussions, and no changes to PACE’s documents and procedures were made. In 1995, PACE and the OSCE PA agreed on co-operation arrangements.2 The document included exchanging the agendas of plenary sessions between the presidents of the assemblies, and invitations to attend each other’s part-sessions, either personally or represented at them as observers or guests. Also, the presidents would be able to address the other’s Assembly and answer their questions. According to the arrangements, the presidents and their representatives could be invited to 1 PACE, Resolution 943 (1990), Relations between Europe, the United States of America and Canada in the 1990s. 2 Council of Europe, Rules of Procedure, Strasbourg, October 2014, p. 218.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 A. Chiniaeva, Parliamentarization of International Governmental Organizations, European Union and its Neighbours in a Globalized World 2, https://doi.org/10.1007/978-3-030-71341-6_7

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conferences, hearings and other events organized by the other organization, if questions of mutual interest were to be examined. Regular meetings would be provided for the two Bureaux under the conditions of the arrangements. At the joint meetings, the following issues could be examined: the political situation in Europe, the contribution of the Assemblies to European construction, progress made with reciprocal co-operation, and possible reporting by one assembly to the other on matters of special interest. Finally, close co-operation between international secretariats, including the exchange of information and discussion of matters of common interest, was provided in the document.3 In 1998, PACE adopted Recommendation 131/1998 for the relationship between the CoE and the OSCE. The document stated that the two organizations share principles and objectives but have different responsibilities, structures, working tools and methods. The Assembly called for a clear division of tasks to avoid duplication.4 Later the same year, the Wise Persons to the Committee of Ministers adopted the Final Report, where they stressed the comparative advantages of the OSCE and the CoE. On one hand, the OSCE has great operational capacities in conflict management; on the other hand, the CoE has experience in standard setting and legal cooperation. The combination of these advantages could encourage a better multifaceted coordination between the two organizations on legal grounds in order to ensure more efficiency and coherency with regard to conflict situations and the systematic pooling of relevant information. This initiative notched a success in 2000, when the OSCE and the CoE signed a politically binding “Common Catalogue of Cooperation modalities.” 5 The Catalogue6 refers to the different forms of the cooperation modalities: • Joint meetings, particularly, the delegations of the Bureaux of the two Parliamentary Assemblies meet periodically to exchange views on questions of common interest and to review co-operation between the two Assemblies (Sect. 1.2) • Ad-hoc contacts and consultations, particularly, the tri-parliamentary visits of members of the Parliamentary Assembly of the Council of Europe, the

3 There are two examples of a “Parliamentary Troika” organized by PACE, the OSCE PA, and the EP. The first is the “Parliamentary Troika” on the Stability Pact, which was established in 2001. The main purposes are: strengthening the democratic efficiency and effectiveness of parliaments in South-eastern Europe; promoting bilateral and multilateral cooperation among parliaments in the region; bringing countries of the region that are not yet candidates for accession to the EU closer to that objective (Stability Pact Parliamentary Troika Conference on Security in South-eastern Europe organized by the OSCE PA, 6–7 June 2002 in Bucharest, Romania, Addendum III to progress report, Doc. 9475, p. 37 in working papers, 2002 ordinary session (third part) 24-28 June 2002). The second is the Troika to encourage the development and consolidation of democratization of Belarus. 4 European Yearbook/Annuaire Européen, Vol. 47 (1999), p. 57. 5 Schmahl and Breuer (2017), para. 37.73. 6 Relations between the Council of Europe and the Organisation for Security and Co-operation in Europe (OSCE). Catalogue of Co-operation Modalities (April 2000). Available at: https://www. cvce.eu/content/publication/2003/7/30/99ef6a46-9489-4cf8-97a7-d0d806e4d929/publishable_en. pdf (07.06.2018).

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Parliamentary Assembly of the OSCE and the European Parliament to Tirana in 1997 and 1998, and Belarus in 2000 (Sect. 1.4) • Participating in meetings, particularly, the Presidents of the Parliamentary Assemblies of the Council of Europe and the OSCE speaking at the sessions of the other Assembly (Sect. 2.1.3). In December 2004, the Committee of Ministers7 and the OSCE Permanent Council8 established the Co-ordination Group. It consisted of the Permanent Representatives from the Troika of the OSCE (preceding, current and incoming Chairmanship of the OSCE), the current and incoming chair of the CoE. Also, it was opened to Permanent Representatives of the countries in the Bureau of the CoE, the chair of the CoE GR-OSCE (Rapporteur Group), as well as representatives from the Secretariats of the two organizations. According to the Committee of Ministers of the CoE, the Group would meet twice a year, with the aim of improving cooperation modalities between organizations.9 The Group was tasked to prepare a document on enhancing cooperation between the two organizations. The document was prepared for the Warsaw Summit in May 2005. There, a Declaration on Co-operation between the Council of Europe and the Organization for Security and Co-operation in Europe was passed.10 It called on the Co-ordination Group to foster coordination and cooperation between the two organizations in areas of common interest. It was agreed to produce synergies and avoid unnecessary duplication, fully considering the different nature and membership of the two organizations, and making best use of their comparative advantages. The CoE Member States and the OSCE participating States decided to bring this declaration to the attention of PACE and the OSCE PA, and expressed their support for the intention to enhance cooperation between the two assemblies.

7 Decision CM/865/01122004 on Enhanced Cooperation and Coordination between the Council of Europe and the OSCE, 905th meeting—1–2 December 2004. 8 PC.DEC/637 of 2 December 2004, Enhanced Co-Operation between the Organization for Security and Co-Operation in Europe (OSCE) and the Council of Europe (CoE). 9 Additionally, there are annual high-level meetings of the Chairperson-in-Office of the Committee of Ministers, the Chairperson-in-Office of the OSCE and the two Secretaries General in the format “2+2.” 10 Declaration on Co-operation between the Council of Europe and the Organization for Security and Co-operation in Europe of 17 May 2005, Warsaw. Available at: https://rm.coe.int/ CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId¼090000168046a481 (07.06.2018).

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Election Observation

Election observation activity is a significant part of the work of both international parliamentary assemblies. Moreover, this type of activity is one of the most popular reasons for the cooperation between them. Therefore, the question of election observation will be discussed closely in this chapter. According to the definition provided by the UN Declaration of Principles for International Election Observation: International election observation is: the systematic, comprehensive and accurate gathering of information concerning the laws, processes and institutions related to the conduct of elections and other factors concerning the overall electoral environment; the impartial and professional analysis of such information; and the drawing of conclusions about the character of electoral processes based on the highest standards for accuracy of information and impartiality of analysis. International election observation should, when possible, offer recommendations for improving the integrity and effectiveness of electoral and related processes, while not interfering in and thus hindering such processes. International election observation missions are: organized efforts of intergovernmental and international nongovernmental organizations and associations to conduct international election observation.11

The Declaration of Principles for International Election Observation does not provide a strict difference between the definitions of “observation” and “monitoring.”12 However, there is a distinction between these two terms in the literature,13 and sometimes some international organizations14 distinguish the terms. The Code of Conduct on Ethical and Professional Observation of Elections15 provides several types of activity, where monitoring is activity that: involves the authority to observe an election process and to intervene in that process if relevant laws or standard procedures are being violated or ignored

and where “observation” is activity,

11

Declaration of Principles for International Election Observation, a document endorsed, together with a Code of Conduct for International Election Observers by the UN, 27 October 2005, para. 4, (emphasis added). 12 Binder and Pippan (2012). 13 For example, J. Kelley uses the two terms interchangeably in “The Good, the Bad, and the Ugly: Rethinking Election Monitoring.” 14 For example, the line between monitoring and observation was given in the PACE’s Guidelines on Election Observation (AS/Bur (2015) 29). In accordance with para. 16(v), part D of the guidelines: “While rapporteurs for the monitoring of, or post-monitoring dialogue with, a given country should be encouraged to join an ad hoc committee to observe an election in that country, they should not be appointed chairpersons thereof. This is to ensure a distinction between election observation as such and monitoring and post-monitoring dialogue in the context of which the findings of an ad hoc committee are followed up.” 15 Code of Conduct on Ethical and Professional Observation of Elections, Institute for Democracy and Electoral Assistance, 1997, para. 6.

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137

which involves gathering information and making informed judgements from that information.

Consequently, the main criterion to distinguish monitoring from observation is the mandate of the particular mission. An election monitoring mission has the mandate not only to observe the electoral process but to intervene in the case of law violations. Monitoring is slightly more comprehensive than observation and may include the entire election cycle: the pre-election phase, election day, and the post-election period, and enables international actors to offer recommendations, accessible to the public, for improving the process and correcting identified deficits. The mandate of the election observation mission is narrow. It usually includes gathering information and making assessments, reporting without interfering in the process.16 International election observation as a process can be characterized by several parameters: the subject (who carries out the process), the object (wider understanding of the “election”), and the degree of international involvement.17 When it comes to the third parameter, the above-mentioned distinction between monitoring and observation may be applicable. The degree of OSCE PA and PACE involvement in international election observation will be studied in this section.

7.2.1

International Sources and Standards Related to the Election Observation Activity

According to the Helsinki Final Act, the OSCE participating States expressed their will to act in conformity with the purposes and principles of the UN Charter and the Universal Declaration of Human Rights (UDHR). In accordance with Article 1(c) of the Statute of the CoE, “participation in the Council of Europe shall not affect the collaboration of its members in the work of the United Nations . . . .” Moreover, the ECHR was written with consideration of the UDHR by the members of the CoE.18 The UN Charter is a legally binding international treaty. Member States agreed under Article 1 that one of the purposes of the United Nations is “to achieve international co-operation . . . in promoting and encouraging respect for human rights and for fundamental freedoms.” The UDHR declared the right to genuine elections. The document is not a treaty and consequently it does not impose legal obligations on Member States. However, it is broadly considered to be customary international law.

16

Binder and Pippan (2012). Binder and Pippan (2012). 18 Preamble to the Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4.XI.1950. 17

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Pursuant to Article 21(1) of the UDHR, “everyone has the right to take part in the government of his country, directly or through freely chosen representatives.” This article also establishes free elections as the basis of governmental authority: “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret ballot or by equivalent free voting procedures.” The UDHR also sets forth the other fundamental rights that are crucial for the election process, particularly freedom of expression,19 and peaceful assembly and association.20 The Universal Declaration has affected a number of other international legally binding agreements. For example, the International Covenant on Civil and Political Rights (ICCPR) reiterated and expanded the rights included in the UDHR. All the OSCE participating States and the CoE Member States ratified the ICCPR. The document states in Article 25 that every citizen, without discrimination, has the right to vote and to compete for public service in his/her country. The detailed interpretation of Article 25 is provided in General Comment No. 25 by the UN Human Rights Committee (HRC).21 Such UN instruments as the International Convention on the Elimination of All Forms of Racial Discrimination (CERD)22 and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)23 also include specific provisions concerning electoral rights. For instance, Article 5(c) of the CERD provides everyone, without distinction or discrimination, with “political rights, in particular the rights to participate in elections - to vote and stand for election.” Article 7 of the CEDAW guarantees women’s right to vote, to be elected and to participate in the formulation of government policy on equal terms with men. The majority of the OSCE participating States and Member States of the CoE are legally bound by obligations under both the CERD and the CEDAW. A large number of OSCE participating States and CoE Member States have also ratified the Convention on the Rights of Persons with Disabilities.24 Article 29a (ii) guarantees the right of persons with disabilities to “fully participate in political

19

Article 19 of UDHR. Article 20 of UDHR. 21 CCPR General Comment No. 25: Article 25 (Participation in Public Affairs and the Right to Vote), The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service, CCPR/C/21/Rev.1/Add.7. 22 UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, United Nations, Treaty Series, Vol. 660, p. 195. Available at: https://www.refworld.org/docid/3ae6b3940.html (31.05.2020). 23 UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, Vol. 1249, p. 13. Available at: https:// www.refworld.org/docid/3ae6b3970.html (31.05.2020). 24 UN General Assembly, Convention on the Rights of Persons with Disabilities: resolution / adopted by the General Assembly, 24 January 2007, A/RES/61/106. Available at: https://www. refworld.org/docid/45f973632.html (31.05.2020). 20

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and public life on an equal basis with others,” including the right to vote, to be elected, and to hold and serve public office. Some of the OSCE participating States apply the Guiding Principles on Internal Displacement.25 According to Principle 22(d), internally displaced persons have the right to vote and to participate in governmental and public affairs, including the right to have access to the means necessary to exercise this right.” Another significant source is the ECHR. It is the main document for the CoE. A large number of the OSCE participating States are parties to the Convention. The Additional Protocol to the ECHR of 20 March 1952 states the right to free elections. According to Article 3, “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” The ECHR sets up the judicial instrument for monitoring compliance with the guaranteed rights: the ECtHR.

7.2.2

OSCE Commitments on Election Observation

In 1990 at the Copenhagen Meeting, all participating States expressed commitment to the ideals of democracy and political pluralism, as well as their common determination to build a democratic society based on free elections and the rule of law.26 The Copenhagen Document is the basis for the OSCE election observation activity. According to paragraph 8 of the Copenhagen Document, The participating States consider that the presence of observers, both foreign and domestic, can enhance the electoral process for States in which elections are taking place. They therefore invite observers from any other CSCE participating States and any appropriate private institutions and organizations who may wish to do so to observe the course of their national election proceedings, to the extent permitted by law. They will also endeavour to facilitate similar access for election proceedings held below the national level. Such observers will undertake not to interfere in the electoral proceedings.

Paragraphs 6-8 of the Copenhagen Document include the main commitments relating to the election process.27 The following commitments require states to: • Hold free elections at reasonable intervals; • Permit all seats in at least one chamber of the legislature to be popularly elected; • Guarantee universal and equal suffrage;

25

UN Commission on Human Rights, Report of the Representative of the Secretary-General, Mr. Francis M. Deng, submitted pursuant to Commission Resolution 1997/39, Addendum: Guiding Principles on Internal Displacement. E/CN.4/1998/53/Add.2, 11 February 1998. 26 Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE that took place in Copenhagen from 5 to 29 June 1990. 27 There are also relevant commitments related to a broad range of civil and political rights, rule of law issues and non-discrimination provisions in the Copenhagen Document.

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• Respect the right of citizens to seek office; • Respect the right to establish political parties and ensure that parties can compete on the basis of equal treatment before the law and by the authorities; • Ensure that political campaigning can be conducted in an open and fair atmosphere without administrative action, violence, intimidation or fear of retribution against candidates, parties or voters; • Ensure unimpeded media access on a non-discriminatory basis; • Ensure that votes are cast by secret ballot and that they are counted and reported honestly, with the results made public; • Ensure that candidates who receive the number of votes necessary to be elected are duly installed in office and are permitted to remain in office until their term expires. Paragraph 8 of the 1990 Copenhagen Document states that the presence of observers, both foreign and domestic, can enhance the integrity of the electoral process. The document includes a standing invitation from all participating States to all other participating States, as well as to appropriate private institutions and organizations, to observe their national election proceedings. Despite the fact that the OSCE Copenhagen Document provides for a standing invitation to observe, a formal invitation to observe elections is needed. The Copenhagen commitments are not legally binding, similar to any other OSCE document. Therefore, the practice has been that participating States extend a written invitation to the OSCE in a timely manner to reaffirm their commitments and willingness to receive international observers.

7.2.2.1

The ODIHR and the OSCE PA Mandate Concerning Election Observation

For the purpose of participating States carrying out their commitments concerning elections, the OSCE created a unique system inside the organization. Currently, two bodies of the OSCE are responsible for the realization of these commitments: the ODIHR (Office for Democratic Institutions and Human Rights) and the OSCE PA. It may be said that the ideas to create the ODIHR and the OSCE PA appeared simultaneously and were embodied in the Charter of Paris in 1990. Specifically, the Office for Free Elections, which was transformed later into the ODIHR,28 was established, and the important role of parliamentarians was recognized by the OSCE/ CSCE participating States in the Charter of Paris. According to the Paris Charter, the Office has to facilitate contacts and the exchange of information and reports of election observations, and contacts within participating States between parliaments or private organizations wishing to observe elections and competent authorities of the States in which elections are to take place. 28 Mandate expanded and name changed to Office for Democratic Institutions and Human Rights by Prague Ministerial Council, 30 and 31 January 1992.

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Initially, the main tasks for the ODIHR were assistance and coordination of observation. Furthermore, in 1992, the US Congressional Commissioner on Security and Cooperation in Europe wrote in the Report on Albania’s Second Multi-Party Elections, that the ODIHR (at that moment the CSCE Office for Democratic Institutions and Human Rights) did not have a mandate to observe elections itself. At that time, the Deputy Director of the ODIHR provided only briefings with foreign delegations on the political and economic situation in Albania. Also, he had the right to coordinate the plans of the observers on election day to ensure good coverage of the country. However, the ODIHR’s significance has grown over the years. In 1993, the CSCE Council meeting in Rome decided to enhance the ODIHR’s role in comprehensive election monitoring.29 The following year, in recognition that an election process is more than a 1-day event, the Budapest Summit decided that the ODIHR should “play an enhanced role in election monitoring before, during and after elections.”30 Despite mentioning at the ministerial level the importance of making the role of the ODIHR stronger and enhancing its activities, the ODIHR’s mandate continued to include assistance and coordination regarding the election observation of other organizations actually engaged in observation until 1997, when the Cooperation Agreement between the Chairman-in-Office and the President of the Parliamentary Assembly31 was signed. Nowadays, the ODIHR is the main OSCE institution responsible for the human dimension. In 1999, the Istanbul Summit of Ministers recognized the ODIHR as one of the “essential instruments in ensuring respect for human rights, democracy and the rule of law.” The Office has a crucial role in organizing human dimension meetings, in conducting election observations and assessments, and in monitoring election standards, in providing support to the lawmakers of participating States, and in the protection of human rights.32 As was mentioned above, the OSCE PA has a broader mandate concerning assessment (“assess the implementation of the objectives of the OSCE”), which includes election observation. As Spencer Oliver, Secretary General of the OSCE PA stressed, “Parliamentarians bring professional political experience and sound political judgment to the election observation missions, adding visibility and credibility to election monitoring projects.”33

29

Final Document of the Fourth Meeting of the CSCE Council of Ministers, CSCE and the New Europe—Our Security is Indivisible, 30 November–1 December 1993, Chapter IV, The Human Dimension, para. 4. 30 Budapest Document 1994 of the CSCE, Towards a Genuine Partnership in a New Era, Chapter VIII, The Human Dimension, para. 12. 31 CIO.GAL/7/97 of 15 September 1997. 32 Manual for Supporting the OSCE Chairmanship 2014, 4th edn., Office of the OSCE Secretary General, October 2014, p. 43. 33 R. S. Oliver, The Parliamentary Assembly and its Political Influence in the OSCE. The full text of the document is available at: https://www.oscepa.org/documents/all-documents/documents-1/9552005-the-parliamentary-assembly-and-its-political-influence-in-the-osce/file (06.07.2018).

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In 1993 at the Annual Session of the Assembly, the Chairperson-in-Office, the Swedish Foreign Minister, Baroness Margaretha af Ugglas, urged parliamentarians to actively participate in election observation and monitoring. After this response, the OSCE PA developed a program for election observation activity. The first delegation of 36 CSCE MPs from 21 participating States observed the multi-party elections and the referendum on the constitution in the Russian Federation on 12 December 1993. At this and later elections in Kazakhstan, the OSCE PA took the leading role. The Assembly’s International Secretariat was responsible for the organization of the election observation missions. By the end of 1993, the OSCE PA, together with such organizations as PACE, the EP and the NATO Assembly, had been directly involved in election monitoring. The ODIHR played mainly a supportive role (assistance and coordination) to the Assembly and other organizations engaged in observation. Since 1993, the OSCE Parliamentary Assembly has observed 145 elections across the OSCE area. Nowadays, the situations and roles have changed, and the ODIHR has become the leading institution in election observation activity, and has developed standards used by other international organizations.

7.2.2.2

OSCE Election Observation Process

A standard election observation mission (EOM) includes a team of experts, longterm observers (LTOs) and short-term observers (STOs). Usually the EOM is deployed from 6 to 8 weeks before election day and follows all significant aspects of an electoral process: the national legislative process of candidate and electorate registration, campaigning, the election administration, election dispute resolution, and the election-night vote count, post-election complaints and appeals. Following the definition of the EP’s election observation given by Andrea Gawrich,34 the observation missions of the parliamentary assemblies of European international organizations may be characterized as short-term missions carried out by parliamentarians. The duration of STOs of both OSCE bodies is the same. PACE’s standard program for monitoring consists of 5 days (not counting arrival and departure)35 and the STOs of the ODIHR remain in the host country for approximately 1 week.36 Only the ODIHR provides the deployment of LTOs, in multinational teams of two, usually up to 6 weeks before election day in the OSCE area. An EOM issues interim reports before election day and a statement of preliminary findings and conclusions immediately after it, usually jointly with the partner observer organizations with which it forms an international election observation

34

Gawrich (2015), p. 124. PACE, Rules of Procedure PACE, 2015, ch. Appendix XI Observation of elections by the parliamentarians, para. vii. 36 OSCE, Election Observation Handbook, 6th edn. ODIHR, p. 46. 35

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mission. A comprehensive final report is issued approximately 2 months following the completion of the election process. The final report provides concrete recommendations for improving the process.37 Usually a mission includes from ten to fifteen observers. Legal analysts and parliamentary liaison officers are always included in the number of the mission members. The team consists of analytical and operational parts. Every member of the team has his/her circle of duties and responsibilities.38 For example, the legal analyst: • reviews the election legislation and regulations, and other legislation pertaining to elections, • assesses the extent to which the legislation and its implementation comply with OSCE commitments and other international standards, and whether national laws are applied fairly and impartially, • follows all election-related disputes, complaints, court cases and appeals. This permits an assessment of the extent to which effective timely remedy is available for complainants and of the impartiality and effectiveness of the judiciary in dealing with election-related cases.39 The parliamentary liaison officer, who arrives in the country 2–3 weeks before an election and remains until the election: • arranges briefing sessions, logistical support, deployment plans, interpreters, drivers and other arrangements for parliamentarians, • maintains close contact with the administrative staff of the respective parliamentary bodies, • liaises between the EOM and parliamentary delegations who are partners in observing election-day proceedings. Usually delegations are from the OSCE PA, PACE and the EP.40 For instance, for election day in Armenia (parliamentary elections on 2 April 2017), the ODIHR EOM consisted of a 63-member delegation from the OSCE PA, a 34-member delegation from PACE, and a twelvemember delegation from the EP.41

7.2.2.3

Relations Between the ODIHR and the OSCE PA

Having two organs that are responsible for the same type of activity has created a large number of difficulties between them. 37

Ibid., p. 30. The full list of responsibilities is available in the Election Observation Handbook, 6th edn. ODIHR, 2010, pp. 37–44. 39 Ibid., p. 39. 40 Ibid., p. 42. 41 OSCE/ODIHR Election Observation Mission, Final Report on Republic of Armenia, Parliamentary Elections on 2 April 2017. Published in Warsaw, 10 July 2017, p. 3. 38

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The role of each body is clear prima facie: the Parliamentary Assembly makes a political assessment of the elections as being in compliance with the Copenhagen Document mentioned above, whereas the ODIHR plays a technical and administrative role and makes the assessment of whether participating States have complied with human rights and the OSCE obligations. However, the practice shows that the two organs of the same organization have been in conflict for a long period of time. The governmental part of the OSCE has offered to conclude a co-operation agreement between the OSCE PA and the ODIHR for better coordination of the efforts in election observation and for elimination of possible redundancy, overlapping, unnecessary expense and confusion of their activities. The Danish OSCE Chairmanship spent nearly 8 months trying to negotiate the agreement. Finally, in 1997, the Co-operation Agreement42 was concluded. According to the Agreement, the “OSCE PA has engaged almost exclusively in the observation of parliamentary elections by short-term observers, the ODIHR has engaged in election assistance, long-term assistance, long-term observation and short-term observation of presidential, parliamentary and municipal elections, as well as referendums.” Also, according to the Agreement, the OSCE Chairman-inOffice may designate a political figure, usually the President of the OSCE PA or an OSCE senior parliamentarian, as a Special Co-ordinator to lead the short-term OSCE Observer Mission. The document includes a mechanism for cooperation, where the ODIHR shall provide the OSCE PA with assistance and support (subsequent briefing for parliamentarians and logistical support). The Agreement specified the importance and necessity of mutual sharing of information. Regarding the final report, both bodies should submit to each other their preliminary drafts. According to the Agreement, “it would be helpful if the reports could contain agreed upon recommendations from both the ODIHR and the OSCE PA.” Nevertheless, the OSCE PA and the ODIHR are more independent from each other than two institutions usually are that work under the umbrella of the same organization. The SG of the OSCE PA expressed his regrets during the Autumn Meeting in Geneva in 2014 that the former ODIHR Director Michael Georg Link insisted on treating the OSCE PA in the same manner as other parliamentary assemblies not linked to the OSCE, undermining the purpose of the abovementioned Co-operation Agreement of 1997. The OSCE PA has to “emphasize the importance of having OSCE work together as one organization during election observation.”43 Moreover, the Ministerial Council of the OSCE, in paragraph 15 of the OSCE MC Decision 19/06 on Strengthening the Effectiveness of the OSCE, “recognizes that close co-operation with the OSCE Parliamentary Assembly considerably enhances

42

Co-operation Agreement between the OSCE PA and the OSCE ODIHR. CIO.GAL/7/97 of 2 September 1997. 43 News from Copenhagen, No. 538 Current information from the OSCE PA International Secretariat, 8 October 2014.

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the visibility of the OSCE’s election observation efforts, and calls on the ODIHR to continue to work in partnership with the Parliamentary Assembly on election observation missions on the basis of the 1997 Co-operation Agreement.”44 However, the ODIHR had been criticized for many years by the OSCE PA for constantly ignoring the Co-operation Agreement. The lack of transparency and accountability is one of the reasons for criticism of the ODIHR’s election observation activity. The OSCE PA considers that many of the observers that are assigned to the EOMs by governments are unqualified for this activity.45 According to the Assembly, there is a deficiency of transparency in the process of financial arrangements related to the selection of these election observers. Moreover, parliamentarians are more experienced in election-related activity because they know the process inside out and are thus much more qualified as short-term observers nominated by governments. Parliamentarians as election observers are fully qualified to assess whether the elections are free and fair.46 Moreover, the OSCE PA is, unlike the ODIHR, an independent body of the OSCE. The fact that the ODIHR is dependent upon the governmental part of the OSCE for its budget, as well as dependent on individual participating States which make large voluntary contributions, makes the ODIHR vulnerable to pressure and threats of retribution. Hence, this lack of independence would make ODIHR’s statements disputable and undermines the credibility of the institution. In 2006, at the Brussels Annual Session, most of the parliamentarians of the OSCE PA summarized all the negative aspects of the ODIHR election observations and legal and historical background and called for a strengthening of the parliamentary leadership role, where the Parliamentary Assembly should be placed in charge of OSCE election observations, while the ODIHR would play only a subordinate and supportive role.47 Despite the fact that the suggestion has a logical explanation and historical background, it is hardly possible to realize these proposals today. The ODIHR was a very quickly developed and active body at the beginning of its election observation activity. That allowed the ODIHR to get the leading position in election monitoring and it does not have any desire give up its place to the OSCE PA in this area. Moreover, the OSCE PA does not have enough capacity to carry out the whole process.

44

OSCE MC Decision 19/06 on Strengthening the Effectiveness of the OSCE, 5 December 2006. In 2004, the ODIHR could not carry out a full observation of the presidential election in the USA. The ODIHR was not prepared. It was ready only to examine the implementation of the Help America Vote Act. OSCE was concerned that the negative reaction of the presidential administration could result in opposition to the organization, with financial consequences. In this case, the PA attempted to do a full-scale observation at the request of the Chairman-in-Office and deployed a full delegation to the USA. The ODIHR refused to assist with the mission and the PA had to take over most of the organizational work. See Nothelle (2006), p. 364. 46 Nothelle (2006), pp. 363–365. 47 Nothelle (2006), p. 365. 45

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However, for the last several years, the OSCE PA has changed its policy regarding the criticism of the ODIHR. Currently, the OSCE PA is looking for ways to enhance cooperation with the ODIHR. It provides regular meetings where opportunities for deepened cooperation, including work with parliaments, and legal reviews of legislation, methods, and modalities of election observation are discussed.48

7.2.3

PACE Election Observation Activity

The Parliamentary Assembly has played a significant role in the creation of Europe’s electoral heritage. In particular, it initiated the Council of Europe’s standard-setting work on elections, which has served as a basis for improving national electoral legislation. Also, it has made a significant contribution to the development of cooperation in this area, both within the Council of Europe and especially with the European Commission for Democracy through Law (Venice Commission) and its Council for Democratic Elections, and with other international organizations, such as the OSCE and the EP. The election observation activity of the Parliamentary Assembly was started in the middle of the twentieth century. It observed the first election held in Greece after the fall of the colonels in 1974. The election observation activity rapidly increased in 1989 with the wave of accession by the countries of Eastern and Central Europe. The assembly observed more than 140 parliamentary and presidential elections in European countries. About 1800 members of the Assembly have been deployed for this purpose.49 Free and fair elections of national assemblies became a necessary precondition for parliamentarians seeking special guest status with PACE in 1989. Later, this principle was enshrined in the Vienna Declaration 1993 (Declaration of the Council of Europe's First Summit)50 as a necessary requirement for candidates, particularly post-Soviet countries that wanted to become CoE Member States. According to the Declaration: Such accession presupposes that the applicant country has brought its institutions and legal system into line with the basic principles of democracy, the rule of law and respect for human rights. The people's representatives must have been chosen by means of free and fair elections based on universal suffrage.

48

News from Copenhagen No. 730 of January 16, 2019; No. 749 of May 29, 2019. Doc. 13021, 14 September 2012. Report “For More Democratic Elections.” Rapporteur: J-C. Gardetto. 50 Declaration of the Council of Europe’s First Summit (Vienna, 9 October 1993). Vienna Declaration. Available at: https://www.cvce.eu/en/obj/declaration_of_the_council_of_europe_s_first_sum mit_vienna_9_october_1993-en-d7c530b5-a7c9-43f9-95af-c28b3c8b50d3.html (02.10.2018). 49

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There are two main aspects recognized by the CoE for its members related to the election process: observance of constitutional principles of electoral law (universal, equal, free, secret and direct suffrage) and basic conditions of democratic states based on the rule of law (fundamental rights, stability of electoral law and effective procedural guarantees). These basic conditions and principles have been further developed in the CoE’s instruments.

7.2.3.1

PACE Electoral Standards

The abovementioned Additional Protocol to the ECHR guarantees the right to free elections. According to the Preamble to the Convention, fundamental human rights and freedoms are best maintained by “an effective political democracy.” Since it enshrines a characteristic principle of democracy, Article 3 of the Additional Protocol is accordingly of prime importance in the Convention system.”51 The right to free elections works together with the other rights guaranteed by the Convention and principles, such as the principle of freedom of expression and the freedoms of assembly and association.52 For instance, the ECtHR found that “free elections and freedom of expression, particularly freedom of political debate, together form the bedrock of any democratic system . . . freedom of expression is one of the ‘conditions’ necessary to ‘ensure the free expression of the opinion of the people in the choice of the legislature.’”53 Moreover, the cases regarding the banning of political parties due to the incompatibility of their manifestos with democratic principles are examined under Article 11 in Parti nationaliste basque – Organisation régionale d’Iparralde v. France (paragraph 34) and Refah Partisi (the Welfare Party) and Others v. Turkey. The incompatibility with Article 3 of the additional Protocol is considered as secondary. It does not raise a separate issue.54 The ECtHR and the former Commission of Human Rights were actively involved in the expansion of Article 3 of the Additional Protocol for more than 60 years. Their case law became one of the significant sources related to election observation activity. For instance, the Court continues to develop the requirement of universal suffrage, which is one of the most important principles now. From the idea of an “institutional” right to the holding of free elections,55 the Commission had moved to

51 Mathieu-Mohin and Clerfayt v. Belgium, para. 47. Available at: http://hudoc.echr.coe.int/eng? i¼001-57536 (22.08.2017). 52 Articles 10 and 11 of the ECHR. 53 Bowman v. the United Kingdom, para. 42. Available at: http://hudoc.echr.coe.int/eng?i¼00158134 (22.08.2017). 54 Guide on Article 3 of Protocol No. 1 to the European Convention on Human Rights, Right to free elections, Council of Europe/European Court of Human Rights, 2017, para. 47. 55 Decision of 18 September 1961 on the admissibility of application no. 1028/61, X v. Belgium (A.D.Q. c. BELGIQUE), Yearbook of the Convention, Vol. 4, p. 338. Available at: http://hudoc. echr.coe.int/eng?i¼001-108083 (01.06.2020).

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the concept of “universal suffrage”56 and then, as a consequence, to the concept of subjective rights of participation—the “right to vote” and the “right to stand for election to the legislature.” The Court approved this latter concept in 1987.57 Another source is recommendations and resolutions to governments regarding election issues that were adopted by the Committee of Ministers and the Parliamentary Assembly. They include a large number of different issues, for instance: electronic voting,58 electronic governance and electronic democracy,59 media coverage of election campaigns,60 corruption and funding of political parties and electoral campaigns,61 and balanced participation of women and men in political and public decision making.62 The Assembly adopted about twenty-six key documents in the field of elections for the period 2003 to 2015 (Table 7.1). PACE, together with the European Commission for Democracy through Law (the Venice Commission) prepared a Code of Good Practice in Electoral Matters, which included the Guidelines on Election. The Guidelines are based on the underlying principles of Europe’s electoral heritage; they constitute the core of a code of good practice in electoral matters. The document provided the PACE with answers to three aspects of its Resolution 1264 (2001): setting up a working group, developing a code of practice in electoral matters and compilation of a list of the underlying principles of European electoral systems. The document was adopted by the Council for Democratic Elections—the joint working group provided for by PACE

56 The case is regarding prevention from voting in the land elections of the Saarland in June 1965 and in the elections for the German Federal Parliament (Bundestag) in September 1965. Decision of 6 October 1967 on the admissibility of application no. 2728/66, X v. the Federal Republic of Germany, op. cit., vol. 10, p. 338. Available at: http://hudoc.echr.coe.int/eng?i¼001-3020 (01.06.2020). A more recent example is the Case of Hirst v. the United Kingdom (no. 2) (Application no. 74025/01), paras 59 and 62. Available at: http://hudoc.echr.coe.int/eng?i¼001-61680 (01.06.2020). 57 Mathieu-Mohin and Clerfayt v. Belgium, para. 51. Available at: http://hudoc.echr.coe.int/eng? i¼001-57536 (24.08.2017). 58 Recommendation Rec(2004)11 of the Committee of Ministers to member states on legal, operational and technical standards for e-voting (Adopted by the Committee of Ministers on 30 September 2004 at the 898th meeting of the Ministers’ Deputies). 59 Recommendation Rec(2004)15 of the Committee of Ministers to member states on electronic governance (“e-governance”) (Adopted by the Committee of Ministers on 15 December 2004 at the 909th meeting of the Ministers’ Deputies); Recommendation CM/Rec(2009)1 of the Committee of Ministers to member states on electronic democracy (e-democracy) (Adopted by the Committee of Ministers on 18 February 2009 at the 1049th meeting of the Ministers’ Deputies). 60 Recommendation CM/Rec(2007)15 of the Committee of Ministers to member states on measures concerning media coverage of election campaigns (Adopted by the Committee of Ministers on 7 November 2007 at the 1010th meeting of the Ministers’ Deputies). 61 Recommendation Rec(2003)4 of the Committee of Ministers to member states on common rules against corruption in the funding of political parties and electoral campaigns (Adopted by the Committee of Ministers on 8 April 2003 at the 835th meeting of the Ministers’ Deputies). 62 Recommendation Rec(2003)3 of the Committee of Ministers to member states on balanced participation of women and men in political and public decision making (Adopted by the Committee of Ministers on 12 March 2003 at the 831st meeting of the Ministers’ Deputies).

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Table 7.1 PACE’s documents regarding the election observation process (2003–2015) Year 2015

2012

2011

2010

2009 2008

2007

Resolution Resolution 2043 Fostering democratic participation of migrant diasporas Resolution 2037 Post-electoral shifting in members’ political affiliation and its repercussions on the composition of national delegations Resolution 1898 Political parties and women’s political representation Resolution 1897 Ensuring greater democracy in elections Resolution 1889 The portrayal of migrants and refugees during election campaigns Resolution 1826 Expansion of democracy by lowering the voting age to 16 Resolution 1771 An internationally recognised status of election observers Resolution 1736 Code of good practice in the field of political parties Resolution 1706 Increasing women’s representation in politics through the electoral system Resolution 1705 Thresholds and other features of electoral systems which have an impact on representativity of parliaments in Council of Europe member states Resolution 1653 Electronic democracy Resolution 1618 State of democracy in Europe Measures to improve the democratic participation of migrants Resolution 1591 Distance voting Resolution 1590 Secret ballot—European code of conduct on secret balloting, including guidelines for politicians, observers and voters Resolution 1546 The code of good practice for political parties

Recommendation

Recommendation 1945 An internationally recognised status of election observers

Recommendation 1899 Increasing women’s representation in politics through the electoral system Recommendation 1898 Thresholds and other features of electoral systems which have an impact on representativity of parliaments in Council of Europe member states

Recommendation 1840 State of democracy in Europe Measures to improve the democratic participation of migrants

(continued)

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Table 7.1 (continued) Year 2005

Resolution Resolution 1459 Abolition of restrictions on the right to vote

2004

Recommendation 1676 Women’s participation in elections Resolution 1320 Code of Good Practice in Electoral Matters

2003

Recommendation Recommendation 1714 Abolition of restrictions on the right to vote Recommendation 1704 Referendums: towards good practices in Europe

Recommendation 1595 Code of Good Practice in Electoral Matters

resolution—at its second meeting (3 July 2002) and by the Venice Commission at its 51st Session (5–6 July 2002). In July 2017, the Code of Good Practice’s 15th anniversary was celebrated.63 The Guidelines were included in the Rules of Procedure of PACE as a complementary text under Appendix XI. Also, PACE revised the existing guidelines64 and adopted a new document for its election observation missions—Guidelines for the Observation of Elections by the Parliamentary Assembly65—that includes, inter alia, a code of conduct for members of ad hoc committees, requirements regarding the election observation reports, and the form of election observation by the Assembly. According to the document, the observation of parliamentary and presidential elections, as well as referenda, should be an “inalienable right” of PACE.

7.2.3.2

PACE Election Observation Process

According to paragraph 1 of the above-mentioned guidelines, the acceptance of election observation missions is an essential requirement for the States “whose parliament has requested or enjoys special guest status, partner for democracy status,

63

European Commission for Democracy through Law (Venice Commission). Code of Good Practice in Electoral Matters: Guidelines and Explanatory Report. Opinion no. 190/2002, CDL-AD (2002) 23 rev, Strasbourg, 23 May 2003. 64 The group of parliamentarians signed the motion which states that “it would be useful to examine the existing ‘Guidelines for the observation of elections by the Parliamentary Assembly’ (AS/Bur (2015) of 10 March 2015). The aim is to see if and where these regulations need to be revised in order to further improve realisation of the Council of Europe’s goals of promoting democracy, human rights and the rule of law.” Motion for a resolution, Doc. 14302, 26 April 2017. In 2018 and 2019, the guidelines were revised. 65 AS/Bur (2018) 14 def, 4 June 2018, Guidelines for the observation of elections by the Parliamentary Assembly (adopted by the Bureau of the Assembly on 31 May 2018). See also: AS/Elect (2019) 5 of 20 August 2019, Guidelines for the observation of elections by the Parliamentary Assembly.

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which has applied for membership, or is subject to the monitoring procedure.” In accordance with paragraph 2, those States that do not accept an election observation mission have to “give rise to a debate at the part-session or Standing Committee following the elections.” The consequences for the State could be a freezing of the application procedure or a challenge by the national delegation concerned about the lack of cooperation with the PACE’s monitoring procedure.66 Assembly observers are accredited by the relevant authorities in the country concerned. The national parliament has to take steps to facilitate their accreditation.67 The election observation activity starts with the scrutiny and assessment of the national legislation and its compliance with international standards. The quality of the national legislation is crucial for the assessment of the election process. The Members States and those who wish to become a Member of the CoE have to adjust their national election law in accordance with international standards. The second stage starts with the date when an election is called. That date, under normal circumstances involving regular elections, should be reasonably distant from the voting day, to allow all political stakeholders to prepare for an electoral contest. PACE’s Rules of Procedure include the following stages of election as a process:68 • • • •

The announcement of the election; The opening of the electoral campaign; The voting day, and the vote counting; The declaration of results of an election, followed by a complaints period stage.

There are three forms of election observation by PACE under the Rules of Procedure. The first is as an election observation mission, which takes the form of an ad hoc committee. The size of the committee may be from five to forty members; in special cases, the Bureau can decide to increase the number. The committee includes rapporteurs of the Committee on Political Affairs and Democracy, the Committee on Legal Affairs and Human Rights, and the Monitoring Committee for the country concerned. The draft of the report prepared by the ad hoc committee is submitted to the Bureau and to the Assembly as a part of the progress report. The second is an election assessment mission, which also takes the form of an ad hoc committee set up for this purpose. It is usually composed of five members, but never fewer than three members, in order to guarantee a minimum political and geographical balance of the ad hoc committee. This committee reports its findings in the form of a memorandum by its chairperson to the Bureau.

66

According to Rule 8.2.b. of the Rules of Procedure of PACE, the unratified credentials of a national delegation as a whole may be challenged on “persistent failure to honor obligations and commitments and lack of co-operation in the Assembly’s monitoring procedure.” 67 Election Observation, A Practical Guide for Parliamentarians. Council of Europe, January 2014, p. 17. 68 Para. 6, Part B, Appendix XI–Observation of Elections by the Parliamentary Assembly, Rules of Procedure, PACE, Strasbourg 2014.

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The third is a presence on the occasion of an election of assembly members during and/or just before an election, without a formal observation or assessment of it. Accordingly, the Bureau does not set up an ad hoc committee but decides on the dates of the mission. These missions are normally composed of the country rapporteur(s) of the Monitoring Committee or the Committee on Political Affairs and Democracy. In exceptional cases, the Bureau can appoint one of its members to participate in these missions. This mission will report their findings in the form of a memorandum to the Bureau. The chairperson of an ad hoc committee should draft a report on the election observation mission, which is submitted to the Bureau and subsequently to the Assembly as part of the progress report of the Bureau. This report should be based on the information received during the meetings which were held during the mission, in line with the press release and preliminary findings and conclusions of the International Election Observation Mission (IEOM). Also, it should take into account the comments and assessments of members of the ad hoc committee regarding election day which were made during the ad hoc committee’s meeting on the day following the vote, or in written form within a deadline fixed by the chairperson, as well as relevant documents of the Monitoring Committee, the Venice Commission and other reliable sources. All members of the ad hoc committee shall be consulted on the draft before the report is issued.

7.2.4

Election Observation As a Type of Co-operation

The joint activity in election observation is one of the most frequent types of cooperation between the assemblies of international organizations in Europe. In accordance with Decision No. 19/06 on Strengthening the Effectiveness of the OSCE, “the election observation is a common endeavor involving the ODIHR, the OSCE PA and other parliamentary institutions.”69 Usually, the OSCE PA cooperates with the OSCE ODIHR, the EP, PACE and the NATO Parliamentary Assembly. The document outlining the international standards is the International Declaration of Principles of Election Observation. This document was created under the aegis of the United Nations Electoral Assistance Division and the National Democratic Institute in 2005, and provided the standards for election observation managed by international actors. In contrast to PACE, the EP and the OSCE PA did not participate in the formulation of the Declaration. The EP signed it years later. The former OSCE PA President, Ilkka Kanerva, endorsed it only in 2015, on behalf of the Assembly. Also, during the past two decades, international organizations have published many manuals relating to the election observation process. The OSCE/

69

MC.DEC/19/06 of 5 December 2006 on Strengthening the Effectiveness of the OSCE, para. 14.

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ODIHR is one of the leaders that improves and updates the materials regularly.70 The OSCE PA and PACE usually use the ODIHR’s manuals in their work. In addition, as discussed above, the parliamentary assemblies established their own resolutions and recommendations regarding the election observation process. International parliaments of the European region cooperate directly, usually using such legal instruments as cooperation agreements. For instance, PACE and the IPA CIS signed an Agreement on cooperation,71 and PACE and the EP concluded an Agreement on the strengthening of co-operation.72 According to the Agreement between PACE and the IPA CIS, the agendas for plenary sessions are to be exchanged, each Assembly is to invite one or more representatives from the other to attend sessions, the President of one Assembly may address the other on special occasions, and there is an undertaking to invite the Presidents of the two Assemblies or their representatives to conferences and other events that are of interest to both parties. The Assemblies also agreed to cooperate by exchanging relevant documents, including reports and adopted texts on a regular basis. Joint meetings of delegations from the respective Bureaux may be held whenever appropriate. The Secretaries General meet for consultations or exchanges of views on suitable occasions to discuss matters of common interest.73 In 2007, the CoE and the EU signed a Memorandum of Understanding.74 Under paragraph 46 of the Memorandum, the EP and PACE were “invited to reinforce their co-operation in order to further strengthen the parliamentary dimension of interaction between [them].” As a consequence, in the same year, the above-mentioned agreement between the EP and PACE was signed. According to the Agreement between the PACE and the EP, the Assemblies agreed to hold their Presidents’ meetings periodically as necessary, and joint meetings of the Presidential Committee and Conference of Presidents are to take place once a year to discuss the state of relations between the two Assemblies and other questions of common interest. Moreover, under the Agreement, both assemblies establish the committees, which are encouraged to set up co-operation with a view on how to co-ordinate action and avoid duplication and to identify issues that will constitute a basis for joint activities,

70

For example, Handbook for the Observation of Campaign Finance of 2015, Handbook on Observing and Promoting the Participation of National Minorities in Electoral Processes of 2014, Election Observation Handbook, 6th edn., 2010. 71 Agreement on cooperation between the Parliamentary Assembly of the Council of Europe and the interparliamentary Assembly of the Commonwealth of Independent States, 9 June 1997. Complementary texts to the rules of procedure of the PACE, Appendix 2, vii, Strasbourg, October 2014, p. 218. 72 Agreement on the strengthening of co-operation between the Parliamentary Assembly of the Council of Europe and the European Parliament, 28 November 2007. Complementary texts to the rules of procedure of the PACE, Appendix 2, x, Strasbourg, October 2014, p. 224. 73 Evans and Silk (2013), p. 368. 74 Memorandum of Understanding between the Council of Europe and the European Union, Council of Europe 2007. Available at: https://rm.coe.int/16804e437b (02.06.2020).

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including meetings and hearings, and invitations for members and rapporteurs of counterpart committees, as well as regular contacts between rapporteurs. Also, the statement on exchanges of information, agendas and other documents was agreed in the Agreement. The EP and PACE invited each other to represent them at conferences, seminars and other events. The respective secretariats of the counterpart committees were instructed to maintain close contacts and co-operation. The Agreement provides a legal basis for regular high-level meetings. Furthermore, important cooperation in joint election observation missions is to be reinforced by the described agreement. According to the Agreement between the EP and PACE, “the existing excellent cooperation in joint observation missions will be reinforced, in particular in the framework of the international observation mission carried out by the OSCE PA, PACE and the EP.” A. Gawrich defines inter-organizational reciprocity as “the common goal to enhance democracy through election observation – [which] is evident for the EU, the EP, the OSCE and the CoE.”75 PACE and the EP, in the joint activity with the OSCE, have an opportunity to observe election processes in the countries that are not their respective organizations’ member States. For instance, the EP, together with the OSCE PA, PACE and the OSCE/ODIHR, observed elections in Moldova, which is a non-EU country,76 and in Kyrgyzstan, which is neither a CoE nor an EU Member State. This type of cooperation between international parliamentary assemblies in election observations may be understood as “reciprocal legitimacy,” according to A. Gawrich.77 It is worthy of note that despite the fact that the OSCE and the CoE conduct a large number of joint election observation activities, they have not concluded an agreement regarding this question. Already in 1998, the Committee of Wise Persons recommended in their Final Report78 that “specific arrangements should also be agreed between the international organizations concerned as regards the observation of elections to ensure a coherent assessment of their results.” G. Ulfstein suggested that the agreement between the CoE and the OSCE could contribute to preventing conflicting assessments of elections and should be concluded, although such different assessments cannot be entirely prevented.79

75

Gawrich (2015), p. 137. OSCE International Election Observation Mission, “Statement of preliminary findings,” 30 November 2014. 77 Gawrich (2015), p. 137. 78 CM(98)178, Committee of Wise Persons Final Report to the Committee of Ministers, Strasbourg, 20 October 1998, para. 38. Available at: https://rm.coe.int/16805e328c (03.10.2018). 79 G. Ulfstein, The Council of Europe and the OSCE: Enhancing Co-Operation and Complementarity through Greater Coherence, p. 13. 76

References

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References Books, Book Chapters, Articles, Studies, Papers Binder C, Pippan C (2012) Election monitoring, international. MPEPIL. http://opil.ouplaw.com/ view/10.1093/law:epil/9780199231690/law-9780199231690-e1036. Accessed 24 Sept 2017 European Yearbook 47 / Annuaire Européen 47 (1999) Council of Europe (ed), Brill | Nijhoff. Evans P, Silk P (2013) The parliamentary assembly practice and procedure. Council of Europe Publishing, Strasbourg Gawrich A (2015) The European Parliament in International Election Observation Missions (IEOMs): division of labour or decreased influence? In: Stavridis S, Irrera D (eds) The European parliament and its international relations, Routledge advances in European Politics. Taylor & Francis, Milton Park, p 121 ff, Kindle Edition Nothelle A (2006) The OSCE parliamentary assembly–driving reform. In: IFSH (ed) OSCE yearbook 2006. Nomos Schmahl S, Breuer M (2017) The Council of Europe: its law and policies. Oxford University Press, Oxford

Chapter 8

Parliamentarization at the Global Level

The best-known form of parliamentary participation in international organizations (excluding the EP) is international parliaments, which have either formal decisionmaking and control powers or do not have them at all. In general, only a body with real parliamentary power and whose composition is based on direct elections can close the gap of democratic legitimacy at the international level. Already in the nineteenth century, the idea of a global parliament had appeared. It can be said that the IPU became the first ideological predecessor of that idea. Later, the vector was shifted to the UN as an environment where a global parliament could be established. Moreover, the UN is often criticized for missing a proper system of “checks and balances,”1 a lack of democracy and transparency. Numerous proposals for international or global parliaments have been made in the literature and in political debates.2 This part includes the most popular options regarding the establishment of a global parliamentary assembly inside and outside the UN, and analysis of the latest proposed project on the UN Parliamentary Assembly (UNPA), based on the current models of international parliamentary assemblies. The analysis of that project allows the combination of the most successful features and summarizes common requirements for the parliamentary institutions of IGOs.

1 2

Schorlemer (2011), pp. 466–505. Walk and Mendlovitz (2003).

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 A. Chiniaeva, Parliamentarization of International Governmental Organizations, European Union and its Neighbours in a Globalized World 2, https://doi.org/10.1007/978-3-030-71341-6_8

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8 Parliamentarization at the Global Level

Parliamentary Assembly Inside the UN The Question of Establishment

As well as the above-discussed WTO PA, the Parliamentary Assembly of the UN has several proposals for its creation. At Millennium NGO Forum among other proposals regarding the strengthening and democratizing of the UN the following proposal was announced. As well as the above-discussed WTO PA, the Parliamentary Assembly of the UN has had several proposals for its creation. At the Millennium NGO Forum, among other proposals regarding the strengthening and democratizing of the UN, the following proposal was announced: Support the establishment of a consultative UN Parliamentary Assembly comprised initially of representatives of existing parliaments from around the world who would convene on an annual basis prior to the UN General Assembly in order to make recommendations concerning the agenda before the GA. Representatives from the parliaments should be elected and the UNPA must be open and transparent. NGOs of civil society must be able to have a consultative relationship to it.3

One of the options is the creation of a UN Parliamentary Assembly under a decision of the UN General Assembly (GA), in accordance with Article 22 of the UN Charter, as a semi-autonomous subsidiary body.4 Does this option mean the establishment of a body that is totally dependent on the UN governmental part? What would be the scope of powers for a parliamentary assembly established that way? Should it be proposed as a replacement for any existing institution? Being a “subsidiary organ” of a UN organ means that: • It is created by or under the authority of a principal organ of the UN; • Principal organs determine the structure and terms, and may modify the subsidiary organ; • The principal organ may abolish the subsidiary organ.5 It is not correct to confirm that there is completely no element of independence regarding this above-mentioned approach. Subsidiary organs can be divided into categories: the first are those which have special status as special organs and those which were created by treaties between the member States, i.e., “treaty bodies.”6 The category of special organs includes such categories as the largely autonomous organs

Para. 6.3(c), “Strengthening and Democratizing the United Nations and International Organizations,” Millennium NGO Forum, Theme 6, Discussion Paper, May 30, 2000. 4 Bummel (2010), p. 8, p. 23. 5 Khan (2012), p. 724. 6 The term “treaty bodies” is an inappropriate one, because these types of institutions are institutionally assigned to the GA (usually through duty to report), despite the fact that they are established by international treaties. See Khan (2012), p. 731. 3

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or semi-autonomous organs established by the GA.7 The main feature of these organs is that they are independent in the self-directed execution of their functions, in financial matters and in the complex organizational structure of their administrative staff.8 However, the semi-independent organs do not possess a legal personality of their own because they do not have an international treaty basis. Moreover, the GA has the power to issue binding decisions to a semi-independent organ. Therefore, if a UN Parliamentary Assembly were established under Article 22 of the UN Charter, the governmental part of the UN would have significant influence. The UN practice demonstrates that the evolution from a subsidiary, semiautonomous organ into a specialized UN agency, legally independent of the UN, is possible (for example, the UNIDO).9 The UNIDO example demonstrates that, after the subsidiary organ was transformed into an independent agency, the UN concluded an agreement with the new organization. Consequently, independence from the UN was achieved via the transformation of an existing subsidiary organ into an organization based on an international treaty.10 After such transformation of a semi-autonomous organ into a specialized agency, relations with the UN are regulated under Articles 57 and 63 of the UN Charter. According to Article 63, “the Economic and Social Council may enter into agreements with any of the agencies referred to in Article 57, defining the terms on which the agency concerned shall be brought into relationship with the United Nations.” This agreement is subject to GA approval. The authors of the approach consider “an affiliation according to Article 57 of the Charter as not applicable since this rule affects a relation with the Economic and Social Council and therefore would imply undesirable thematic limitations.”11 The GA cannot confer more powers on the assembly than it has itself. Consequently, it sets limits on the possible extension of supervisory and co-decision-making powers under Article 22. However, the authors of the approach also underline that the powers of the GA “should also not be underestimated. [The GA] can exert direct influence on the programmes and funds it has set up.”12 Another option is the establishment of a UNPA through amendment of the UN Charter.13 This way was called “the classical route” by A. Strauss.14 This approach 7

Under the UN Charter, the GA does not authorize to establish organizations that are independent subject of international law. See Khan (2012), p. 738. 8 Khan (2012), p. 729. 9 In 1966, UNIDO was established as an organ of the UN GA, and functions as an autonomous organization within the UN (UNGA Resolution 2152 (XXI) of 17 November 1966). UNIDO became the 16th specialized agency of the UN after entering into force on 21 June 1985 the Constitution of the United Nations Industrial Development Organization. 10 Bummel (2010), p. 24. 11 Bummel (2010), p. 23. 12 Leinen and Bummel (2018), p. 372. 13 Falk and Strauss (2011), pp. 85–98. 14 Falk and Strauss (2011), p. 89.

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was proposed in 1958 by L. Sohn and G. Clark.15 Scholars developed a scheme wherein the UN should be turned into a limited world government with an elected parliament. According to Article 108 of the UN Charter, “Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two-thirds majority of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two-thirds of the Members of the United Nations, including all the permanent members of the Security Council.” Hence, in theory, the amendments and an establishment of the UNPA as a principal organ are possible. However, nowadays, from the political point of view, it is almost impossible. It is indicative that none of the adopted and implemented UN reforms in 2005 have required amending the UN Charter.16 Both steps—getting two-thirds of the members of the General Assembly and ratification by two-thirds of the Members of the United Nations, including the five permanent members of the Security Council—are difficult and non-realistic. The third option is establishment through an independent international treaty and conclusion of a subsequent cooperation agreement on mutual relations with the United Nations.17 This option is extremely difficult from the diplomatic and political point of view. It needs a lot of time for negotiation and ratification. The Statute of the UN Parliamentary Assembly would have to be negotiated with all UN Members. Hence, to reach an acceptable result for all states would be difficult. Even if a compromise could be found, the Statute of the UN Parliamentary Assembly needs to be ratified by the participating states. Finally, after successful ratification, the cooperation agreement between the UN and the newly established UN Parliamentary Assembly would have to be negotiated in the GA, and afterwards, Member States would have to vote in favor. Every stage of the process hardly looks achievable. Probably, the options may only have success after a significant world and historical event to get unanimity of the states, as happened after the end of the Cold War. The fourth option is improvement of already existing international parliamentary platforms. One way to do so is the so-called “IPU approach.” As mentioned above, the Millennium NGO Forum (2000) also proposed “encourag[ing] the growing cooperation between the Inter-Parliamentary Union and other parliamentary bodies and the United Nations in more regular consultation.”18 In 2009, PACE adopted its Report on the reform of the UN.19 PACE pointed out that, since the 1990s, it had called for a greater involvement of parliamentarians of

15

Clark and Sohn (1958). Falk and Strauss (2011), p. 90. 17 The author of the proposal is T. Bode. See Bummel (2010), p. 23. 18 Para. 6.3(c), “Strengthening and Democratizing the United Nations and International Organizations,” Millennium NGO Forum, Theme 6, Discussion Paper, May 30, 2000. 19 Doc. 12018 of 14 September 2009, Report on United Nations reform and the Council of Europe member states (Rapporteur: A. Gross). Available at: http://assembly.coe.int/nw/xml/XRef/XrefDocDetails-EN.asp?fileid¼12303&lang¼EN (22.02.2018). 16

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the UN Member states in the activities of the organization, and in 2006, it had proposed a model for the establishment of a UN parliamentary dimension.20 The model included several proposals, one of which was to improve the use of existing structures for parliamentary cooperation. In Resolution 1476 (2006),21 Tana de Zulueta, a parliamentarian from Italy, proposed the following ways for involving parliamentarians in the UN activities working with the IPU: 1. Together with inter-parliamentary bodies, particularly the IPU, develop a strategy that could include setting up of bodies and organizing activities with parliamentary participation: (a) a network of regional parliamentary assemblies to review and debate ongoing UN priorities; (b) a parliamentary committee for UN budget discussion, which would operate as a consultative organ to GA committees; (c) national information and research centers for parliamentarians, local government representatives, representatives of NGOs and volunteers in member states; and (d) devising a step-by-step strategy, which could include the following stages. 2. The UN has to adopt “clear rules for the involvement of parliamentarians in its work, setting out their rights and responsibilities, as well as the obligation for parliamentary delegations to ensure a fair representation of the political parties or groups in their parliament and give due account to gender balance considerations.” 3. The UN needs to establish a panel to develop proposals on the size and composition of parliamentary committees or a UN Parliamentary Assembly. As was described in Sect. 4.1 on the Inter-Parliamentary Union, the UN chose close cooperation with the IPU without institutional merger. The IPU has held observer status with the GA; its resolutions and declarations can be circulated in the GA, making a political contribution to the work of the UN. Also, the IPU holds regular parliamentary hearings at the UN, as well as regular meetings. The UNDP and the IPU commissioned the Global Parliamentary Report,22 and, together with the WHO, the IPU published a Report on child, early and forced marriage legislation in

20

Doc. 10771 of 21 December 2005, Report on Parliamentary dimension of the United Nations (Rapporteur: T. de Zulueta,). Available at: http://assembly.coe.int/nw/xml/XRef/X2H-XrefViewHTML.asp?FileID¼11175&lang¼EN (22.02.2018). 21 Para. 11. 22 The IPU and the UNDP published two global parliamentary reports in 2012, available at: http:// www.undp.org/content/dam/undp/library/Democratic%20Governance/Global_Parliamentary_ Report_English.pdf (02.03.2018) and in 2017, available at: https://www.ipu.org/resources/ publications/reports/2017-10/global-parliamentary-report-2017-parliamentary-oversight-parlia ments-power-hold-government-account (02.03.2018).

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thirty-seven Asia-Pacific countries.23 The relations between the UN and the IPU are based on the Cooperation Agreement, concluded in 2016. Another sign of close cooperation is that the IPU established the Committee on United Nations Affairs in 2007 and its further transformation into the Standing Committee on United Nations Affairs in 2013. Hence, it may be said that in the last ten years, the UN has applied the model of closer cooperation with an already existing parliamentary body to provide a parliamentary dimension to the UN without further institutional merger with the IPU. It cannot be said that this model creates a global parliament; it is mainly a convenient form for both organizations to include a parliamentary dimension in the UN. The IPU approach is disputable and has its disadvantages. In fact, the UN provides various fora for the IPU, but it does not include a functional link between the parliamentarians and the UN institutions and bodies. Moreover, not all parliaments of the UN Member States are represented in the IPU, and not all member parliaments of the IPU are from Member States of the UN.24 The second possibility is cooperation with world or regional parliamentary assemblies such as the EP, PACE, the OSCE PA and the IPU. This idea was proposed by the EP. Under paragraph 39 of the Resolution on the relations between the European Union and the United Nations, the EP proposed “a network of parliamentarians, which should meet on a regular basis in a Consultative Parliamentary Assembly under the United Nations, to discuss major political issues related to the UN's activity and the challenges it faces.”25

8.1.2

Cardoso Report

Proposals for a closer parliamentary involvement do not originate only from outside the UN: in June 2004, the Panel of Eminent Persons on United Nations-Civil Society Relations, chaired by former Brazilian President Cardoso, submitted its report to the UN Secretary-General. In response to the observed democratic deficit in global governance and the rising power of global public opinion, the so-called Cardoso Report put forward detailed recommendations for engaging elected representatives in UN work, as part of civil society.

23 The report is available at: https://www.ipu.org/resources/publications/reports/2016-07/childearly-and-forced-marriage-legislation-in-37-asia-pacific-countries (02.03.2018). 24 Doc. 10771 of 21 December 2005, Report on Parliamentary dimension of the United Nations (Rapporteur: T. de Zulueta), para. 31. 25 European Parliament Resolution on the relations between the European Union and the United Nations of 29 January 2004 (2003/2049(INI)).

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The Report of the Panel of Eminent Persons on United Nations-Civil Society Relations26 was published in June 2004. The report proposed necessary features for parliamentary involvement in the UN deliberative and decision-making process: (a) Systematic involvement of parliamentarians, which is linked with the GA and the deliberative process (Proposal 13); (b) Parliamentary involvement should take place at national (country) and international levels: – at national level through debates on the UN relevant issues in the parliaments of UN Member States; – at international level through the inclusion of parliamentarians in national delegations to the GA, through the invitation of members of parliament specializing in a subject to address relevant Committees or Assembly sessions, and through consultations with parliaments before UN meetings (Proposal 14); (c) Establishment of one or more “experimental global public policy committees” for a five-year period to discuss emerging priorities on the global agenda in the manner of standing or select committees in national parliaments (Proposal 15); (d) Establishment of an Elected Representatives Liaison Unit that should communicate with local authorities and their new world association, and share lessons of good practice. Functionally, it should provide an information service that would supply the documents and service a dedicated website (Proposal 16). This report was heavily criticized27 and did not get widespread acceptance. For instance, it does not provide the final aim regarding the creation of the UN PA by realization of its proposals. According to paragraph 109 of the Cardoso Report, the global public policy committees should comprise up to 30 parliaments and be regionally representative (from two to four members from the participating parliaments’ most relevant functional committees to represent the party balance). It would make proposals, scrutinize progress, submit reports to the Secretary-General and the heads of specialized agencies, issue press statements and report back to their national parliaments. After five years of experiment, the establishment of more formal global representative committees on all global priorities could be established. The authors considered that “global public policy committees would fill a gap in public engagement in global processes, and would help to connect national democracy with global processes, closing democratic deficits in global governance.”28 However, the

26

UN Doc A/58/817 of 11 June 2004, Report of the Panel of Eminent Persons on United Nations– Civil Society Relations (Cardoso Report). Available at: http://unpan1.un.org/intradoc/groups/ public/documents/un dpadm/unpan041831.pdf (07.03.2018). 27 For example, M. Jens and P. James, Comments on the Report of the Cardoso Panel, 2004, New York: Global Policy Forum. It has to be noted, that the part regarding “engaging with elected representatives” was not significantly criticized, in fact, the idea of an Elected Representative Liaison Unit was met positively. See also H. Volger, Mehr Partizipation nicht erwünscht, Vereinte Nationen, 1/2005, pp. 12–18. 28 Cardoso Report, para. 13.

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Cardoso Report does not specify a reason for the establishment of these committees in respect of a UN PA. The question whether these committees would be a stepping stone toward a more realistic alternative to a UN PA has remained open.29 The IPU reacted negatively regarding the proposal for the establishment of “global public policy committees.” The IPU stressed that it was inappropriate for the UN to consider organizing the work of members of the parliament, because “it runs contrary to the principle of separation of powers between the legislative and the executive branch of government.” Moreover, the IPU Secretary General pointed out that the UN inter-parliamentary structure which was proposed by the Cardoso Panel Report would duplicate the work already undertaken by the IPU.30 In response to the Cardoso Panel Report, the UN Secretary-General mentioned the Panel’s proposals 13 and 16, which identify a number of steps, and commended them to the consideration of the General Assembly. Thus, the Secretary-General agreed that more could be done to strengthen the cooperation between the UN and parliamentarians, but highlighted that this was a matter for the GA’s decision. The topic regarding HIV/AIDS was proposed for a possible meeting of parliamentarians, which, with experience, could evolve into global public policy forums.31 However, the proposed one-day meeting on HIV/AIDS in June 2005 did not take place, and the idea of “a global public policy committee” was not realized.32 Some national parliaments even reacted negatively and rejected the proposal regarding global public policy committees. For instance, the German parliamentarians doubted that it would be possible to guarantee democratic legitimacy and the parliamentarians’ independence from their national executives in the committees proposed by the Cardoso Report. The German Parliament expressed its preferences for a future role of IPU as the parliamentary dimension of the UN.33

8.1.3

Election Process to the UNPA

The most developed project—the Campaign for a United Nations Parliamentary Assembly—proposed three ways of procedure for election delegates.34

29

Giegerich (2005), p. 57. Statement by Anders B. Johnsson, Secretary General of the IPU, United Nations General Assembly joint debate: Agenda item 52: Revitalization on of the work of the General Assembly, Agenda item 54: Strengthening of the United Nations system, 4 October 2004, p. 3. 31 UN Doc. A/58 of 17 September 2004, Report of the Secretary-General on the implementation of the Report of the Panel of Eminent Persons on United Nations–Civil Society Relations, paras 16 and 17. Available at: https://www.globalpolicy.org/images/pdfs/0904sgreport.pdf (09.03.2018). 32 Willetts (2006), p. 316. 33 Giegerich (2005), p. 58. 34 Bummel (2010), p. 28. 30

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The first way is direct election, where the delegates are elected by the population of their country of origin in free, secret and equal elections. On the one hand, that would provide “the most democratically sound legitimacy.” On the other hand, it is the most difficult and expensive way. The second way is a uniform election from already elected national parliamentarians. In this case, parliamentarians have to combine both national and international mandates, hence there is a possibility for negligent work at the UNPA. The third way is indirect election of an electoral college consisting of national parliamentarians that will elect delegates from the whole population. The authors of the Campaign for a United Nations Parliamentary Assembly proposed to leave the question regarding the choice of way to the participating countries because this is the simplest way to meet particular national characteristics and requirements. The second option was recommended, because this way has already been put into practice. There is a one model of international parliamentary assembly that could be applicable—the EP. The problem with application of this model to the UN level is that many UN members are not democracies in which their people are adequately represented in freely and fairly elected parliaments. T. Giegerich suggests, in this regard, that “organizing free and democratic elections to a UN parliamentary assembly could not be safely entrusted to each and every UN member.”35 All three ways require the development of rules and regulations regarding the universal election process. The “universal rules” should include the particularities of the election systems of every participating country. It would be a highly detailed document written by a group of national and international election experts. The document would not have precedents, due to that fact that it needs time to gather experience. However, the already existing sources of law, international standards and materials prepared by leading experts in the area of international election observation from the UN, the OSCE ODIHR and PACE should be used as a starting point and basis.

8.1.4

Composition of the UNPA

Leaders of the Campaign for a United Nations Parliamentary Assembly considered36 that the determination of the number of delegates was part of political negotiations during the preparatory process. The main aspect of the distribution is population size. The total number of seats should be between 700 and 900. It is clear that the number of parliamentarians should be manageable. However, as mentioned above, not all UN member States would be able to establish a proper parliamentary democracy, and therefore the UN is hardly capable

35 36

Giegerich (2005), p. 55. Bummel (2010), p. 31.

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of supporting this organization’s social legitimacy. T. Giegerich demonstrated that this proposal is hardly a politically real one, by providing a simple calculation, where a hypothetical “World Parliamentary Assembly” includes 600 MPs, each member representing ten million people. In this case, the 130 Chinese and 100 Indian would outvote the 29 US, the fourteen Russian and the eight German parliamentarians. The numerous States with fewer than ten million inhabitants would not be represented at all.37 There are also other theories regarding how seat distribution should be developed. The most detailed was proposed by J. Schwartzberg. This scholar described two stages38 of the World Parliamentary Assembly evaluation and proposed methods for appointment at every stage of delegates, according to which every contribution would be equally treated as a percentage of the total number. The models built upon three principles: the demographic/democratic principle, the economic/contributions principle, and the legal principle of the sovereign equality of nations.39 According to that calculation method, the total number reaches 1000 delegates. Current international parliamentary assemblies such as the EP, the OSCE PA, and PACE apply principles of degressive proportionality, where the number of seats are allocated in accordance with the population size of member states but less populous ones are overrepresented. This principle was used in the project for a UNPA.

8.2

Parliamentary Assembly Outside the UN (Strauss-Falk Proposal)

K. Annan stated in his Millennium Report that “better governance means greater participation, coupled with accountability. Therefore . . . the United Nations – must be opened up further to the participation of the many actors [including] civil society organizations . . . [and] parliamentarians . . . .”40 In May 2000, the Millennium NGO Forum took place, where international civil society groups were invited to present their views on global issues, including citizen participation in the decision-making process at the international level. The establishment of a permanent assembly of civil society was agreed to at the Forum. This assembly could be an indicator of public opinion of the world and “a preliminary step towards creating a global parliament.”41

37

Giegerich (2005), p. 55. Stage one: An advisory body with universal membership and stage two: A popularly elected assembly. More precisely in Schwartzberg (2012). 39 Schwartzberg (2012), p. 41. 40 K. Annan, ‘We are the peoples’ the Role of the United Nations in the 21st Century, (Millennium Report of the Secretary-General), 2000, p. 13. 41 Falk and Strauss (2011), pp. 212–220. 38

8.2 Parliamentary Assembly Outside the UN (Strauss-Falk Proposal)

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A. Strauss and R. Falk42 developed the idea of civil society participation and proposed one more option for the solution of the lack of democracy at the international level. They proposed creating a Global Parliamentary Assembly (GPA) outside the UN, using as a basis the model of the EP and the experience of the establishment of the International Criminal Court. The final aim of the GPA is “a universal elected world body with limited but important legislative powers.” According to the proposal, the GPA should be created by “a standalone treaty” concluded by the progressive democratic countries.43 The main power for creating the GPA is civil society, which could create a political climate and push the government to sign the treaty. In the beginning, the GPA would be a UN-independent organization without legislative power. However, development of formal relations with the UN was not excluded. In the future, the authors see the possibility to associate the GPA with the General Assembly to create “a bicameral world legislature.”44 The authors consider that in the beginning, the GPA would have mainly “precatory” functionality.45 Later, it might obtain more authority through the significant support of civil society and pressure on governments, and develop into a body with law-making capability, as happened in the case of the EP. The authors advocated worldwide elections (“internationally elected global assembly”).46 The governments would not constitute the GPA, rather, its representatives (parliamentarians) would be elected by citizens. Hence, the GPA would get its authority from “the global citizenry” and would be accountable to it.47 Inspired by the EP model, Falk and Strauss proposed that parliamentarians would be seated in accordance with their party affiliation instead of the countries they represent. According to A. Strauss, democracy is a way to overcome the global lack of political equality, and the global parliament is an instrument to do that. He proposed to consider democracy as an “additional basis of international law.” He called on states “to rest global authority upon the consent of the governed.” This established principle “would ground global law in the same basis of authority as domestic democratic law.”48 Hence, creating a global democracy would lead to the establishment of the global democratic institution—parliament. Although a large number of questions regarding the institutional structure of the GPA, for instance, its funding and worldwide election procedure, were left for further study and discussion by scholars and practitioners, the Strauss-Falk proposal

42

Falk and Strauss (2011). The authors consider that 20 independents will be enough for GPA establishment. 44 Falk and Strauss (2011), pp. 212–220, p. 41. 45 This position was supported by D. Heinrich in Heinrich (2010). The author applied this model of an initially consultative body to the Parliamentary Assembly inside the UN. 46 Falk and Strauss (2011), p. 49. 47 Falk and Strauss (2011), p. 42. 48 Falk and Strauss (2011), pp. 35–36. 43

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was progressive and provided new food for thought on globalization, democratization and a global government.

References Books, Book Chapters, Articles, Studies, Papers Bummel A (2010) Developing international democracy – for a Parliamentary assembly at the United Nations. Committee for a Democratic U.N, Berlin Clark G, Sohn L (1958) World peace through World law. Harvard University Press, Cambridge Falk R, Strauss AL (2011) A global parliament: essays and articles. Committee for a Democratic U. N, Berlin Giegerich T (2005) “A Fork in the Road” – constitutional challenges, chances and Lacunae of UN reform. German Yearb Int Law 48:29 ff Heinrich D (2010) The case for a United Nations Parliamentary Assembly. Committee for a Democratic U.N, Berlin Khan D-E (2012) The general assembly, procedure, Article 22. In: Simma B, Khan D-E et al (eds) The Charter of the United Nations: Commentary 1. Oxford University Press, Oxford Leinen J, Bummel A (2018) A World Parliament: Governance and Democracy in the 21st Century. Democracy Without Borders, Berlin Schorlemer S (2011) United Nations. In: Klabbers J, Wallendahl Å (eds) Research handbook on the law of international organizations. Edward Elgar, Cheltenham, p 466 ff Schwartzberg JE (2012) Creating a World Parliamentary assembly: an evolutionary journey. Committee for a Democratic U.N, Berlin Walk B, Mendlovitz SH (2003) A reader on second assembly & parliamentary proposals: does the UN system have a “democracy gap?”. Center for UN Reform Education, New York Willetts P (2006) The Cardoso report on the UN and civil society: functionalism, global corporatism, or global democracy? Global Govern Rev Multilateralism Int Organ 12(3):305 ff

Chapter 9

Conclusion

In July 2018, the European Parliament adopted a recommendation1 for the reform of the UN system. Parliamentarians expressed their support for the international campaign’s ideas for a United Nationals Parliamentary Assembly (UNPA) and called on the EU governments to advocate “the establishment of a United Nations Parliamentary Assembly (UNPA) within the UN system in order to increase the democratic character, the democratic accountability and the transparency of global governance and to allow for better citizen participation in the activities of the UN.”2 All proposals either of a Global Parliamentary Assembly or a UNPA use the experience of the present international parliamentary assemblies. However, the current models of working parliamentary assemblies have their successes and failures. A number of weak points ought to be avoided in a global parliamentary assembly model. In this concluding section, an analysis of the current international parliamentary experience will be undertaken to obtain the essential requirements and common principles for an efficient international parliamentary assembly. The abovementioned parliamentary assemblies (the EP, PACE, the OSCE PA) and current projects for a UN Parliamentary Assembly have some common conditions, which are summarized in the tables below. The common requirements for an efficient international parliamentary assembly are: a legal basis, recognition by the members of the world community (states, IOs), legal power, budgetary power and ability to control the executive. A comparison of the OSCE PA, PACE and the EP and their correspondence with the requirements can be found in Table 9.1. Table 9.2 summarizes proposals for the UNPA and the desirable powers it has to be entrusted with.

1 European Parliament recommendation of 5 July 2018 to the Council on the 73rd session of the United Nations General Assembly (2018/2040(INI)). 2 Ibid., Reform of the UN system, including reform of the Security Council, para. 1(m).

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 A. Chiniaeva, Parliamentarization of International Governmental Organizations, European Union and its Neighbours in a Globalized World 2, https://doi.org/10.1007/978-3-030-71341-6_9

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Table 9.1 Assemblies’ correspondence with the common requirements IO Assembly Type

OSCE OSCE PA Autonomous body

CoE PACE Statutory body

First session Legal basis

1992 No Paris Charter and Madrid Declaration (politically binding documents) 57

1949 Statute of the CoE

47

27a

323 appointment by the national parliaments

324 appointment by the national parliaments

704b direct election

No No (separate budget)

No No (control only a part of PACE’s expenditure) Questions

Yes Yes

Member States MPs Selection Powers Legislative Budgetary

Control of the executive a

No

EU EP EU institution 1952 TEU, TFEU

Yes

Excluding the UK, as of 31.01.2020 Numbers are as of 22.04.2020

b

Table 9.2 Campaign for a United Nations Parliamentary Assembly (UNPA) and Strauss-Falk proposal of the Global Parliamentary Assembly (GPA)

Type Legal basis

Advisory function MS

Total number of MPs Legislative, budgetary, control powers

UNPA UN new institution UNGA Decision under Art 22 UN Charter At first stage

Treaty body Treaty concluded by UN MSs (Cooperation agreement on mutual relations with the UN)

UN MS with parliament

700–900 At further stages

GPA Independent institution Standalone treaty Precatory functionality Progressive democratic countries 1000 Significant support of civil society

Table 9.2 demonstrates that the project’s authors tried to combine the most successful features of the international assembly’s current models to create a prototype, particularly for the UNPA. Hence, it is possible to extract common requirements for a model of an efficient international parliamentary assembly.

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If consider the future model of the global parliamentary assembly as an independent institution as it was proposed by proposed by A. Strauss and R. Falk, the first requirement is that the Assembly shall be subject to international law and possess international legal personality to be capable of possessing international rights and/or duties. The situation is clear with an assembly affiliated with supranational organizations or IGOs, such as the EU and the CoE. In those cases, the organizations were recognized as international organizations and non-state actors in international law, and they were established under a treaty where the status of their parliamentary assemblies was clearly defined: the EP is one of seven EU institutions (Article 13 TEU), which, jointly with the European Council, exercise legislative and budgetary functions (Article 14 TEU); PACE is one of two statutory bodies of the CoE (Article 10 of the Statute of the CoE). The situation is different if the IGO and its parliamentary assembly have an uncertain status (e.g., the OSCE) or lack the status of the IGO (e.g., the IPU). This uncertainty creates a number of significant legal and practical obstacles to efficient work. The OSCE PA and the IPU must obtain their recognition through legal personality agreements with the particular organization, and their privileges and immunities with the member states in which they intend to conduct their activity. Therefore, they do not require international legal personality but legal personality under domestic law. Regarding the project for the Campaign for a United Nations Parliamentary Assembly, several scenarios are possible. First, the UNPA is established as a semi-autonomous3 body under the GA’s decision, with a further possibility of becoming a quasi-autonomous body. As a semi-autonomous UN organ, the assembly does not have its own legal personality and the GA can pass binding decisions for it. However, if the assembly later successfully transforms into a quasi-autonomous body, as in the UNIDO case, it gains its own legal personality, based on the treaty. As a semi-autonomous organ, the assembly is granted a wide area of autonomy and the powers transferred to it that could be equivalent to those of specialized agencies. However, it has limited legal personality under domestic law: based on an authorization to act in the name of the UN, this does not correspond with the international personality enjoyed by the quasiautonomous body (e.g., specialized agency). Based on a separate agreement, the quasi-autonomous body does not solely depend on the administrative act of an international organ of an international organization. Therefore, the transformation of the UNPA from the status of a semi-autonomous to a quasi-autonomous organ

3

For purposes of clarifying the terminology: Semi-autonomous UN organ (special organ UN) is established by the GA under Article 22 of the UN Charter to undertake particular operation functions. It does not possess a legal personality on its own. The GA passes binding decisions for this organ. Quasi-autonomous UN organ (specialized agency) is established under agreement between UN Member States (e.g., treaty). It possesses a legal personality of its own. It is not a subsidiary organ of the UN under Articles 7 and 22 of the UN Charter.

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enjoying international legal personality is possible only on the basis of an international agreement.4 In the second scenario, the UNPA is a treaty body (established by a treaty concluded by UN Member States). The assembly is not a UN subsidiary organ under Articles 7 and 22 of the UN Charter, although it is institutionally related to the GA, because the act of its establishment does not derive from the GA and thus the existence of this body does not stem from the GA’s will.5 Consequently, this UNPA will possess its own international legal personality, based on a treaty. The second requirement directly correlates with the first: an international parliamentary assembly obtains a clear legal basis. The EP and PACE are based on international treaties concluded among their member states. A treaty establishing an international organization or other similar instrument governed by international law creates a constitutional basis for the international organization. Respective states shall ratify the agreement. The TEU and the Statute of the CoE included the requirement of ratification.6 According to the Vienna Convention on the Law of Treaties, Article 2(b), ratification means that a state expresses the will to be bound by a treaty. Ratified treaties are the only undisputable source of international law.7 Thus, the State legally recognizes the established organization, its structure, including a parliamentary assembly, and other conditions set forth in the particular treaty. The OSCE and the IPU do not have a constitutional basis signed and recognized by their Member States. The lack of a treaty that would be concluded under international law is the main reason for their problems with legal personality. Obviously, from both theoretical and practical points of view, for efficient work, the parliamentary assembly should be part of an intergovernmental organization that is based directly on a treaty concluded under international law. Thus, the UNPA proposal authors tried to provide it with a clear legal basis through the UN Charter or a separate international treaty to circumvent issues regarding legal personality and recognition among other actors of international law. The third requirement is a kit of powers providing the opportunity to participate in the decision-making process, such as an ability to control executive, legislative and budgetary powers. The aim of this type of control is to increase transparency in the decision-making process, thus preventing abuse of power by the governmental part of the intergovernmental organization. Current regional parliamentary assemblies, such as the OSCE PA and PACE, possess mainly deliberative functions and powers of consultation, recommendation and information.8 In order to exercise the controlling function, the parliamentary assembly must be institutionally linked to the executive. In the case of the CoE, its

4

Khan (2012), pp. 725, 738. Khan (2012), pp. 730–731. 6 Article 54(1) TEU and Article 42(a) Statute of the CoE. 7 Schermers and Blokker (2011), p. 805. 8 Ruffert and Walter (2015), p. 144. 5

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inter-parliamentary and intergovernmental organs are statutory bodies directly linked with each other. The PACE has the right to gain information, to be consulted and to submit recommendations to the Committee of Ministers. The OSCE PA has the same rights; however, its assembly meets periodically, with a prejudicial treatment by the parent organization. The OSCE PA is an independent body of the OSCE and is not included in the institutional framework; thus, it lacks a significant institutional mechanism to influence the OSCE’s governmental part. The OSCE PA has the possibility of participating at the OSCE meetings and to be heard by the participating States, but the decision-making bodies are not obliged to consider and provide the Assembly with feedback on its contributions. A high rate of interconnection between governmental and parliamentary parts is crucial for the effective work of the international parliamentary assembly. Neither the OSCE PA nor PACE participates in the decision-making process as equal partners because they do not have legislative powers; they only have the right to submit recommendations. In the case of the OSCE, all its institutions and bodies are not even obliged to discuss the recommendations. In contrast, the Committee of Ministers shall reply to the PACE’s recommendations. Also, neither assembly possesses budgetary power. The OSCE PA has its own budget because of its independent position within the OSCE. For many years, the Assembly has tried unsuccessfully to gain budgetary power over the unified budget of the OSCE through a request to establish a working group by the OSCE PA President on the OSCE budget and the obligatory OSCE’s response to the Assembly’s recommendations on the draft OSCE budget. The UNPA authors, mindful of the weak position of the regional models of international assemblies, used a model of the supranational assembly – the EP – that possesses all three powers (legislative, budgetary and supervisory). The Assembly’s full powers would not be established at the beginning under any legal basis; the hope is that the scenario for the UNPA could repeat the EP’s development, and the UNPA would gradually obtain the right to participate in fully worldwide decision-making processes. To sum up, the efficient intergovernmental parliamentary assembly is a constitutionally established independent deliberative body of an intergovernmental organization, participating in decision-making processes and empowered with a supervisory function. If the positive aspects of the intergovernmental assemblies discussed above are combined, besides important and basic requirements, the general principles9 of an efficient international parliamentary assembly (whether regional or universal) can be specified. Principles regarding membership: • The assembly of the intergovernmental organization must be open to participation by representatives from its member states that possess a legitimized parliament. 9 E. Schwartzberg defined desiderata for the World Parliamentary Assembly in Schwartzberg (2012), pp. 36–37.

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Principles regarding nomination: • Representatives should be directly elected;10 • The election process rules should be developed by national and international experts; • The election process should be assisted by the International Election Committee that is established for the election purpose; • Parliamentarians should concentrate on the work in the intergovernmental parliamentary assembly (no double mandates at the national and international level). Principles regarding allocation of seats: • The number of seats should be sufficient to provide voices for representatives of different political views and parts of civil society; • The number of seats should be reasonable and manageable. Principles regarding debates: • All voices are equal; • The groups of parliamentarians should create coalitions based on the common views and groups of interests they represent and not based on country representation; • The consensus rule should not be applicable to the decision-making process; • Representatives must be able to express their opinions and views freely and without fear of retribution from their home government or any other government. Principles regarding administrative organization: • The assembly must be empowered to develop its own internal system of committees and working structures that should be regulated by the assembly’s rules of procedure; • The assembly must be empowered to determine its rules of procedure; • The assembly must have sufficient financial and logistical support from the parent organization; • The assembly must have its own staff and operative structure (e.g., secretariat) to provide support to parliamentarians during sessions and to assist with communication between international and national parliamentarians. As described earlier, PACE and the OSCE PA have fewer competences in comparison with the traditional parliamentary competences of the national parliaments. Their legislative, elective and controlling functions are few: they cannot directly influence the decision-making process reserved for the governmental parts. Why the EP, which holds all these functions, was chosen as a model for the

10

The question of democratic deficit is considered in Sect. 1.2. (Democratic legitimacy of IOs). According to S. Wheatley, the competitive elections to international assemblies help to avoid the question of the political legitimacy of global regulatory norms. In other words, if we have elections, we have democracy. See Wheatley (2010), p. 67.

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UNPA is clear. However, one needs to remember that the EP belongs to the category of supranational parliamentary assemblies established under specific legal, economic and political conditions, and with specific aims pursued by its founders. Despite the assemblies’ (OSCE PA and PACE) weak points, they demonstrate positive results, particularly within the area of human rights law. International parliamentary assemblies provide fora for the exchange of experience among parliamentarians from different countries: they collect and combine information regarding the human rights situation in a particular region or a state’s compliance with its obligations under international law by using different methods, like observation and monitoring, and sources working closely with other international parliamentary institutions, national parliamentarians, state representatives, ad hoc missions and NGOs. Their discussions of problems at the international stage have pushed national legislators to change and adjust laws relating to a state’s international obligations. Unfortunately, the number of successful cases is not as high as it could be if parliaments held more powers. It is hardly possible to realize and apply all the proposed criteria, not only to a parliamentary assembly at the global level, but also to the existing OSCE PA and PACE. However, even partial realization could significantly increase IGOs’ transparency and accountability. Moreover, other international organizations could reduce criticisms regarding the pure balance of power through creating a strong parliamentary assembly within its institutional structure. Eugen Freund, Member of the European Parliament, noted during the debates regarding the 73rd Session of the UN General Assembly that “if Winston Churchill were alive, what would he have said about the UN? It might have sounded like this: ‘The United Nations is a weak organisation, but I don’t know a better one.’”11 These words could be applied to the international parliamentary institutions, whose systems are sometimes weak and powerless, even though their efforts and aims are great. Currently, it is important to have international institutions, which are reminders of the importance of the balance of power and ordinary people’s interests, the reasons for which international organizations were initially established.

11

Report on a European Parliament recommendation to the Council on the 73rd session of the United Nations General Assembly (2018/2040(INI)). Rapporteur: E. Freund (A8-0230/2018), 2 July 2018.

Appendix 1

CSCE/4-C/Dec.2 CSCE Rome, 1 December 1993 FOURTH MEETING OF THE COUNCIL ROME 1993 Original: ENGLISH List of Contents • Legal Capacity and Privileges and Immunities Annex 1 • Provisions Concerning the Legal Capacity of the CSCE Institutions and Privileges and Immunities • Legal Capacity of the CSCE Institutions Privileges and Immunities • General • CSCE Institutions • Permanent Missions of the participating States Representatives of participating States • CSCE Officials • Members of CSCE Missions

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 A. Chiniaeva, Parliamentarization of International Governmental Organizations, European Union and its Neighbours in a Globalized World 2, https://doi.org/10.1007/978-3-030-71341-6

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Legal Capacity and Privileges and Immunities 1. At its Rome Meeting from 30 November to 1 December 1993, the CSCE Council considered the report submitted to the 24th CSO Meeting by the CSCE ad hoc Group of Legal and Other Experts on the relevance of an agreement granting internationally recognized status to the CSCE institutions. 2. The Ministers reaffirmed the importance of enhancing the ability of the institutions to better accomplish their functions, while preserving the flexibility and openness of the CSCE process. They agreed that, in order to help achieve a firmer basis for security and co-operation among all CSCE participating States, the CSCE would benefit from clearer administrative structures and a well defined operational framework. 3. The Ministers were encouraged by the fact that the Governments hosting the CSCE Secretariat, the Conflict Prevention Centre (CPC) and the Office for Democratic Institutions and Human Rights (ODIHR) have taken steps under their laws to confer upon these institutions and CSCE personnel as well as representatives of the CSCE participating States treatment comparable to that accorded to the United Nations and its personnel and to the representatives to it. 4. The Ministers noted the expanded operations within CSCE participating States of CSCE institutions and their personnel and of CSCE missions and the importance that all participating States provide for those institutions and individuals appropriate treatment. 5. The Ministers agreed on the usefulness of legal capacity being granted to the CSCE institutions in the territories of all the CSCE participating States, in particular the capacity to contract, to acquire and dispose of movable and immovable property, and to institute and participate in legal proceedings. 6. The Ministers further agreed that it was appropriate that certain privileges and immunities be granted to the CSCE institutions and their officers and staffs, as well as to the Secretary General of the CSCE and the High Commissioner on National Minorities and their staffs, members of CSCE missions and the representatives of the participating States to the extent necessary to the exercise of their duties. 7. In most participating States, however, the competence to make rules concerning the legal status of the CSCE institutions and privileges and immunities rests with the legislature. 8. In view of these considerations and in order to assist in harmonizing the rules to be applied, the Ministers adopted the provisions set out in Annex 1. They recommend that participating States implement these provisions, subject to their constitutional and related requirements. The participating States will inform the Secretary General of the CSCE of the steps taken in this respect no later than 31 December 1994. 9. The Ministers agreed that the present decision supersedes paragraph I.1. (Legal Basis) of Recommendations of the ad hoc Group of Experts of the participating States on administrative, financial and personnel arrangements for the CSCE

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institutional structures created by the Paris Summit, adopted by the Committee of Senior Officials on 29 January 1991 (document CSCE/HB/Dec.1), and that it does not apply to other undertakings with respect to privileges and immunities made within the framework of the CSCE. It is understood, however, that this decision does not affect the treatment conferred upon the CSCE institutions referred to in paragraph 3 above, to the CSCE personnel as well as to the representatives of the CSCE participating States by legislation or administrative measures taken by the host States in accordance with the above decision adopted by the Committee of Senior Officials (document CSCE/HB/Dec.1). CSCE/4-C/Dec.2 Annex 1

Provisions Concerning the Legal Capacity of the CSCE Institutions and Privileges and Immunities Legal Capacity of the CSCE Institutions 1. The CSCE participating States will, subject to their constitutional, legislative and related requirements, confer such legal capacity as is necessary for the exercise of their functions, and in particular the capacity to contract, to acquire and dispose of movable and immovable property, and to institute and participate in legal proceedings, on the following CSCE institutions: • The CSCE Secretariat, • The Office for Democratic Institutions and Human Rights (ODIHR), • Any other CSCE institution determined by the CSCE Council.

Privileges and Immunities General 2. The CSCE participating States will, subject to their constitutional, legislative and related requirements, confer the privileges and immunities as set out in paragraphs 4–16 below. 3. Privileges and immunities will be accorded to the CSCE institutions in the interests of those institutions. Immunity may be waived by the Secretary General of the CSCE in consultation with the Chairman-in-Office. Privileges and immunities will be accorded to individuals not for the personal benefit of the individuals concerned, but in order to safeguard the independent exercise of their functions. Immunity will be waived in any case where the

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immunity would impede the course of justice and can be waived without prejudice to the purpose for which the immunity is accorded. Decision to waive immunity will be taken: • with respect to officers and staff of the CSCE institutions and to members of CSCE missions, by the Secretary General of the CSCE in consultation with the Chairman-in-Office; • with respect to the Secretary General and the High Commissioner on National Minorities, by the Chairman-in-Office. The Government concerned may waive immunity with respect to its representatives.

CSCE Institutions 4. The CSCE institutions, their property and assets, wherever located and by whomsoever held, will enjoy the same immunity from legal process as is enjoyed by foreign States. 5. The premises of the CSCE institutions will be inviolable. The property and assets of the CSCE institutions, wherever located and by whomsoever held, will be immune from search, requisition, confiscation and expropriation. 6. The archives of the CSCE institutions will be inviolable. 7. Without being restricted by financial controls, regulations or moratoria of any kind: (a) the CSCE institutions will be able to hold funds and keep amounts in all currencies to the extent necessary for the exercise of operations corresponding to their objectives; (b) the CSCE institutions will be free to transfer their funds or currency from one country to another or within any country and to convert any currency held by them into another currency. 8. The CSCE institutions, their assets, income and other property will be: (a) exempt from all direct taxes; it being understood, however, that the CSCE institutions will not claim exemption from taxes which are, in fact, no more than charges for public utility services; (b) exempt from customs duties on imports and exports in respect of articles imported or exported by the CSCE institutions for their official use; it being understood, however, that articles imported under such exemption will not be sold in the country into which they were imported except under conditions agreed with the Government of that country. 9. Where goods or services of substantial value necessary for the exercise of the official activities of the CSCE institutions are made or used, and when the price

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of such goods and services includes taxes or duties, the State that has levied taxes or duties will grant exemption or provide reimbursement of the amount of duty or tax. 10. The CSCE institutions will enjoy for their official communications the same treatment as that accorded to diplomatic missions.

Permanent Missions of the Participating States 11. Participating States in whose territory permanent missions to the CSCE are located will accord diplomatic privileges and immunities in conformity with the Vienna Convention on Diplomatic Relations of 1961 to those missions and their members.

Representatives of Participating States 12. Representatives of participating States attending CSCE meetings or taking part in the work of the CSCE institutions will, while exercising their functions and during their journey to and from the place of meeting, enjoy the following privileges and immunities: (a) immunity from legal process relating to acts performed by them in their official capacity; (b) inviolability for all papers and documents; (c) exemption in respect of themselves and their spouses from immigration restrictions and aliens registration as accorded to diplomatic agents of foreign States; (d) the same privileges in respect of exchange facilities as are accorded to diplomatic agents of foreign States; (e) the same immunities and facilities in respect of their personal baggage as are accorded to diplomatic agents of foreign States. The provisions of this paragraph will not apply as between a representative and the State of which he or she is or has been the representative. In this paragraph the expression “representative” means all delegates, deputy delegates, advisers, technical experts and secretaries of delegations.

CSCE Officials 13. CSCE officials will enjoy the following privileges and immunities: (a) immunity from legal process, in respect of acts, including words written and spoken, performed by them in their official capacity;

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(b) exemption from national service obligations; (c) exemption in respect of themselves and their spouses and relatives dependent on them from immigration restrictions and aliens registration as accorded to diplomatic agents of foreign States; (d) the same privileges in respect of exchange facilities as are accorded to the officials of comparable ranks forming part of diplomatic missions to the Government concerned; (e) the same repatriation facilities in time of international crisis in respect of themselves and their spouses and relatives dependent on them as diplomatic envoys; (f) the right to import free of duty their furniture and effects at the time of first taking up their post in the country in question and to export the same free of duty when they leave their post. No participating State will be obliged to accord the privileges and immunities referred to under items (b)-(f) above to its own nationals or to permanent residents of that State. The question of exemption from income tax for CSCE officials is not covered by this paragraph. In this paragraph the term “CSCE officials” means the Secretary General, the High Commissioner on National Minorities and persons holding positions determined by the appropriate CSCE decision-making body or designated by it. 14. The employees of the CSCE institutions will be exempt from the social security regulations of the host State provided that they are subject to the social security law of their home State, or participate in a voluntary insurance scheme with adequate benefits. Provided that the employees of the CSCE institutions are covered by a social security scheme of the CSCE institution, or by a scheme to which the CSCE institution adheres, providing adequate benefits, they will be exempt from compulsory national social security schemes.

Members of CSCE Missions 15. Members of CSCE missions, established by the CSCE decision-making bodies, as well as personal representatives of the Chairman-in-Office, will enjoy the following privileges and immunities while performing their duties for the CSCE: (a) immunity from personal arrest or detention; (b) immunity from legal process, even after the termination of their mission, in respect of acts, including words spoken or written, performed by them in the exercise of their functions; (c) inviolability for all papers and documents;

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(d) the right to use codes and to receive papers or correspondence by courier or in sealed bags, which will have the same immunities and privileges as diplomatic couriers and bags; (e) the same exemption from all measures restricting immigration and from aliens registration formalities as are accorded to diplomatic agents of foreign States; (f) the same privileges in respect of exchange facilities as are accorded to diplomatic agents of foreign States; (g) the same immunities and facilities in respect of their personal baggage as are accorded to diplomatic agents; (h) the same repatriation facilities in time of international crisis as diplomatic agents; (i) the right to use specific symbols or flags on their premises and vehicles. Equipment used by the CSCE missions to accomplish their mandate shall enjoy the same treatment as provided for in paragraphs 4, 5, 8 and 9. 16. Members of other missions under the auspices of the CSCE than those mentioned in paragraph 15 will, while performing their duties for the CSCE, enjoy the privileges and immunities prescribed in paragraph 15 (b), (c), (e) and (f). The Chairman-in-Office may request that these members be granted the privileges and immunities prescribed in paragraph 15 (a), (d), (g), (h) and (i) in situations where such members may encounter specific difficulties.

CSCE Identity Card 17. The CSCE may issue a CSCE Identity Card to persons on official duty travel for the CSCE. The document, which will not substitute for ordinary travel documents, will be issued in accordance with the form set out in Annex A and will entitle the bearer to the treatment specified therein. 18. Applications for visas (where required) from the holders of CSCE Identity Cards will be dealt with as speedily as possible.

Appendix 2

CIO.GAL/48/07/Rev.6 23 October 2007

Final Document 22 October 2007

Draft Convention on the International Legal Personality, Legal Capacity, and Privileges and Immunities of the OSCE The States Parties to the present Convention, [ ]1 Recognizing the need for the OSCE to possess international legal personality and such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes2, and Recognizing the need for the OSCE and its staff to enjoy such privileges and immunities as are necessary for the exercise of the functions and the fulfilment of the purposes of the OSCE, Have agreed as follows: Article 1: Definitions For the purpose of the present Convention: (a) “OSCE” shall refer to the Organization for Security and Co-operation in Europe. Two delegations requested to insert as the first paragraph of the preamble [“Referring to the appropriate provisions of the OSCE Charter which require to define the privileges and immunities of the OSCE in a separate multilateral agreement,”]. 2 Two delegations requested to insert [“as they are set forth in the OSCE Charter”]. 1

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 A. Chiniaeva, Parliamentarization of International Governmental Organizations, European Union and its Neighbours in a Globalized World 2, https://doi.org/10.1007/978-3-030-71341-6

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(b) “Participating States” shall refer to the OSCE participating States. (c) “States Parties” shall refer to the participating States for which the present Convention has entered into force in accordance with Article 22 below. (d) “Representatives of participating States” shall refer to participating States’ delegates, deputy delegates, advisers, technical experts and secretaries of delegations. (e) “Permanent Representations” shall refer to the Permanent Representations of the participating States to the OSCE. (f) “Institutions” shall refer to the Office for Democratic Institutions and Human Rights (ODIHR), the Office of the High Commissioner on National Minorities (HCNM), the Office of the Representative on Freedom of the Media (FOM) and any other institution established by OSCE decision-making bodies. (g) “Field Operations” shall refer to the OSCE Field Operations, including OSCE Missions, Centres, Presences, Offices, Project Co-ordinators and other types of field operations established by OSCE decision-making bodies. (h) “Secretary General” shall refer to the Secretary General of the OSCE. (i) “Members of the Secretariat and Institutions” shall refer to the Secretary General, the Heads of Institution, as well as to the staff members of the OSCE Secretariat and Institutions, but shall not include persons who are locally recruited and receive an hourly or daily rate of pay. (j) “Members of Field Operations” shall refer to staff members of Field Operations, including the Heads of Mission, but shall not include persons who are locally recruited and receive an hourly or daily rate of pay. (k) “Other Persons Performing Tasks of the OSCE” shall refer to: i) OSCE experts on mission; ii) representatives of the OSCE Chairmanship-in-Office; but shall not include persons who are locally recruited and receive an hourly or daily rate of pay. For the purposes of the present Convention, members of the OSCE Parliamentary Assembly, as well as officials of its secretariat, taking part in the work of the OSCE as identified by the OSCE Chairman-in-Office, shall be treated as Other Persons Performing Tasks of the OSCE. (l) “Premises of the OSCE” shall refer to the buildings, parts of buildings and the land, including installations, facilities made available, maintained, occupied or used by the OSCE in connection with its functions and purposes. Article 2: OSCE Decision-Making Process, OSCE Commitments 1. Nothing in the present Convention shall affect the OSCE decision-making process. 2. Nothing in the present Convention shall be construed to create any legal obligation for any State Party other than the obligations expressly set forth herein, nor shall anything in the present Convention affect the political,

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non-legally binding character of the OSCE commitments of the participating States. Article 3: International Legal Personality The OSCE shall possess international legal personality. Article 4: Legal Capacity The OSCE shall possess such legal capacity as is necessary for the exercise of its functions,3 including the capacity to contract, to acquire and dispose of movable and immovable property, and to institute and participate in legal proceedings. Article 5: OSCE Premises, Property and Assets 1. The premises of the OSCE shall be inviolable. 2. The property of the OSCE and its assets, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action, except insofar as in any particular case it has expressly waived its immunity. Article 6: Archives of the OSCE The archives of the OSCE, and in general all documents belonging to it or held by it, shall be inviolable wherever located and by whomsoever held. Article 7: Immunity from Jurisdiction and Execution 1. The OSCE, its property and assets, wherever located and by whomsoever held, shall enjoy immunity from any form of legal process except insofar as in any particular case it has expressly waived its immunity. It is, however, understood that such waiver of immunity does not extend to any measure of execution, for which a separate waiver shall be necessary. 2. The OSCE shall have insurance coverage against third party risks in respect of vehicles owned or operated by it, as required by the laws and regulations of the State where the vehicle is operated. Article 8: Tax Exemptions 1. The OSCE, its assets, income and other property shall be exempt from all direct taxes; it being understood, however, that the OSCE shall not claim exemption from taxes which are, in fact, no more than charges for public utility services. 2. Where goods or services of substantial value necessary for the exercise of the functions of the OSCE are purchased, and when the price of such goods and

3

Two delegations requested to insert [“as they are set forth in the OSCE Charter”].

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services includes taxes or duties, the State Party that has levied taxes or duties shall grant, whenever possible, exemption or provide reimbursement of the amount of duty or tax. Article 9: Customs Privileges The OSCE, its assets, income and other property shall be exempt from customs duties on imports and exports in respect of articles imported or exported by the OSCE for its official use; it being understood, however, that articles imported under such exemption shall not be sold, leased or given away in the territory of the State Party into which they were imported except under conditions agreed with the competent authorities of that State Party. Article 10: Financial Controls Without being restricted by financial controls, regulations or moratoria of any kind, the OSCE shall be: (a) able to hold funds and keep accounts in all currencies to the extent necessary for the exercise of operations corresponding to its functions; (b) free to transfer its funds or currency from one country to another or within any country and to convert any currency held by it into another currency. Article 11: Facilities in Respect of Communications 1. For the purpose of its official communications and correspondence, the OSCE shall enjoy in the territory of each State Party, treatment not less favourable than that which the State Party accords to any intergovernmental organization or diplomatic mission in the matter of priorities, rates and taxes applicable to mail and the various forms of communication and correspondence. 2. The OSCE may use all appropriate means of communication and make use of codes or cipher for its official communications or correspondence. The official communications and correspondence of the OSCE shall be inviolable. 3. No censorship shall be applied to the official communications and correspondence of the OSCE. 4. The OSCE Secretariat, Institutions and Field Operations shall have the right to dispatch and receive correspondence and other materials or communications amongst themselves by courier or in sealed bags, which shall have the same privileges, immunities and facilities as diplomatic couriers and bags. Article 12: Flags and Symbols The OSCE and representatives of the OSCE Chairmanship-in-Office shall have the right to use OSCE symbols and flags for official purposes, on their premises and vehicles.

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Article 13: Permanent Representations States Parties in whose territory Permanent Representations are located shall accord diplomatic privileges and immunities in conformity with the Vienna Convention on Diplomatic Relations of 1961 to those representations and their staff. Article 14: Representatives of Participating States 1. Representatives of participating States attending OSCE meetings or taking part in the work of the OSCE shall, while exercising their functions and during their journey to and from the place of meeting, enjoy the following privileges and immunities: (a) Immunity from personal arrest or detention. (b) Immunity from legal process, even after they are no longer the Representatives of participating States, in respect of words spoken or written and all acts performed by them in their capacity as representatives. (c) Inviolability for all papers and documents in whatever form. (d) Exemption in respect of themselves and their spouses and relatives dependent on them from immigration restrictions and alien registration or national service obligations in the State they are visiting or through which they are passing in the exercise of their functions. (e) The same privileges in respect of currency and exchange facilities as are accorded to diplomatic agents of foreign States. (f) The same immunities and facilities in respect of their personal baggage as are accorded to diplomatic agents of foreign States. (g) The right to use codes and to receive papers or correspondence by courier or in sealed bags. 2. Applications for visas, where required, from Representatives of participating States attending OSCE meetings or taking part in the work of the OSCE, shall be dealt with as speedily as possible. 3. The provisions of paragraph 1 above shall not apply as between a representative and the State of which he or she is or has been the representative. Article 15: Members of the Secretariat and Institutions 1. Members of the Secretariat and Institutions shall enjoy such privileges and immunities as are necessary for the independent exercise of their functions. In particular, they shall be accorded: (a) Immunity from legal process, even after the termination of their appointment with the OSCE, in respect of words spoken or written and all acts performed by them in their official capacity. (b) Inviolability for all papers and documents in whatever form. (c) Exemption from taxation on the salaries, allowances and other emoluments paid to them by the OSCE provided that these incomes are subject to a staff assessment for the benefit of the OSCE. However, States Parties

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may take these incomes into account in calculating the amount of tax to be levied on the taxable income originating from other sources. (d) Exemption from the social security regulations of the host State as well as from all compulsory contributions to national social security schemes of any other State Party, provided that they are covered by the social security scheme of the OSCE. This exemption does not preclude any voluntary participation in a national social security scheme in accordance with the law of the State Party concerned neither does it require a State Party to make payments of benefits under social security schemes to Members of the Secretariat and Institutions who are exempt under the provision of this sub-paragraph. (e) Exemption from national service obligations. (f) Exemption in respect of themselves and their spouses and relatives dependent on them from immigration restrictions and alien registration. Applications for visas, where required, shall be dealt with as speedily as possible. (g) The same immunities and facilities in respect of their personal baggage as are accorded to diplomatic agents. (h) The same privileges in respect of currency and exchange facilities as are accorded to the officials of comparable rank forming part of diplomatic missions established in the State Party concerned. (i) The same repatriation facilities in time of international crisis as diplomatic agents, in respect of themselves and their spouses and relatives dependent on them. (j) The right to import free of duty their furniture and effects at the time of first taking up their post in the country in question and to export the same free of duty when they leave their post. 2. States Parties shall not be obliged to accord to their own nationals or permanent residents the privileges and immunities referred to under paragraph 1, except those granted under item (a) for acts performed in their official capacity. States Parties which do not grant exemption from taxation under their national law shall consider concluding an agreement with the OSCE for the reimbursement of national income tax paid to them by the Members of the Secretariat and Institutions. 3. In addition to the privileges and immunities specified in paragraph 1 above, the Secretary General shall be accorded in respect of him/herself, his/her spouse and relatives dependent on him/her the privileges and immunities, exemptions and facilities accorded to heads of diplomatic missions in accordance with international law. The same shall apply to the Heads of Institution in respect of themselves, their spouses and relatives dependent on them in the country of their duty station.

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Article 16: Members of Field Operations 1. Members of Field Operations shall enjoy such privileges and immunities as are necessary for the independent exercise of their functions during the period of their mission. In particular, in the State Party in which the Field Operation is established, and in other State Parties when travelling in connection with their duties, they shall be accorded: (a) Immunity from personal arrest or detention. (b) Immunity from legal process, even after the termination of their appointment with the OSCE, in respect of words spoken or written and all acts performed by them in their official capacity. (c) Inviolability for all papers and documents in whatever form. (d) Exemption from taxation on the salaries, allowances and other emoluments paid to them by the OSCE provided that these incomes are subject to a staff assessment for the benefit of the OSCE. However, States Parties may take these incomes into account in calculating the amount of tax to be levied on the taxable income originating from other sources. (e) Exemption from the social security regulations of the host State as well as from all compulsory contributions to national social security schemes of any other State Party, provided that they are covered by the social security scheme of the OSCE. This exemption does not preclude any voluntary participation in a national social security scheme in accordance with the law of the State Party concerned neither does it require a State Party to make payments of benefits under social security schemes to Members of Field Operations who are exempt under the provision of this sub-paragraph. (f) Exemption from national service obligations. (g) Exemption in respect of themselves and their spouses and relatives dependent on them from immigration restrictions and alien registration. Applications for visas, where required, shall be dealt with as speedily as possible. (h) The same immunities and facilities in respect of their personal baggage as are accorded to diplomatic agents. (i) The same privileges in respect of currency and exchange facilities as are accorded to the officials of comparable rank forming part of diplomatic missions established in the State Party concerned. (j) The same repatriation facilities in times of international crises as diplomatic agents, in respect of themselves and their spouses and relatives dependent on them. (k) The right to import free of duty their furniture and effects at the time of first taking up their post in the country in question and to export the same free of duty when they leave their post. 2. States Parties shall not be obliged to accord to their own nationals or permanent residents the privileges and immunities referred to under paragraph 1, except those granted under items

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(a) and (b) for acts performed in their official capacity. States Parties which do not grant exemption from taxation under their national law shall consider concluding an agreement with the OSCE for the reimbursement of national income tax paid to them by Members of Field Operations. 3. In addition to the privileges and immunities specified in paragraph 1 above, the Heads of Mission shall be accorded in respect of themselves, their spouses and relatives dependent on them in the country of their duty station the privileges and immunities, exemptions and facilities accorded to heads of diplomatic missions in accordance with international law. Article 17: Other Persons Performing Tasks of the OSCE 1. Other Persons Performing Tasks of the OSCE shall enjoy such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions, including the time spent on journeys in connection with their missions. In particular they shall be accorded: (a) Immunity from personal arrest or detention. (b) Immunity from legal process, even after the termination of their appointment with the OSCE, in respect of words spoken or written and all acts performed by them in their official capacity. (c) Inviolability for all papers and documents in whatever form. (d) For the purpose of their communications with the OSCE, the right to use codes and to receive papers or correspondence by courier or in sealed bags. (e) Exemption from the social security regulations of the host State as well as from all compulsory contributions to national security schemes of any other State Party, provided that they are covered by the social security scheme of the OSCE. This exemption does not preclude any voluntary participation in a national social security scheme in accordance with the law of the State Party concerned neither does it require a State Party to make payments of benefits under social security schemes to Other Persons Performing Tasks of the OSCE who are exempt under the provision of this sub-paragraph. (f) Exemption from immigration restrictions and alien registration. Applications for visas, where required, shall be dealt with as speedily as possible. (g) The same immunities and facilities in respect of their personal baggage as are accorded to diplomatic agents. (h) The same privileges in respect of currency and exchange facilities as are accorded to representatives of foreign Governments on temporary official missions. (i) The same repatriation facilities in time of international crisis as diplomatic agents. 2. States Parties shall not be obliged to accord to their own nationals or permanent residents the privileges and immunities referred to under paragraph 1 (a) except for acts performed in their official capacity, and paragraph 1 (e) to (i).

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Article 18: Waiver of Immunities 1. Privileges and immunities are accorded not for the personal benefit of the individuals concerned, but in order to safeguard the independent exercise of their functions and in the interest of the OSCE. 2. The OSCE shall co-operate at all times with the appropriate authorities of the participating States to facilitate the proper administration of justice, secure the observance of police regulations and prevent the occurrence of any abuse in connection with the privileges, immunities and facilities mentioned in this Convention. 3. A participating State not only has the right, but is under a duty to waive the immunity of its representative in any case where in its opinion the immunity would impede the course of justice and it can be waived without prejudice to the purpose for which the immunity is accorded. 4. Where the immunity would impede the course of justice and it can be waived without prejudice to the functioning of the OSCE, the following authorities shall have the right and the duty to waive immunities: (a) The Permanent Council upon request of the Secretary General with respect to the OSCE. (b) The OSCE Chairman-in-Office with respect to the Secretary General, the Heads of Institution, and the Heads of Mission and their deputies. (c) The Secretary General in consultation with the OSCE Chairman-in-Office with respect to Members of the Secretariat and Institutions and Members of Field Operations other than those falling under (b). (d) The OSCE Chairman-in-Office with respect to his/her representatives. (e) The Secretary General with respect to Other Persons Performing Tasks of the OSCE other than those falling under (d), (f) and (g). (f) The OSCE Chairman-in-Office upon request of the Standing Committee of the OSCE Parliamentary Assembly with respect to the members of the OSCE Parliamentary Assembly and the Secretary General of the OSCE Parliamentary Assembly. (g) The OSCE Chairman-in-Office upon request of the Secretary General of the OSCE Parliamentary Assembly with respect to the other officials of its secretariat. Article 19: OSCE Identity Cards In order to assist States Parties in identifying individuals who are entitled to privileges and immunities set forth in this Convention, the OSCE may issue an OSCE Identity Card to persons entitled to such privileges and immunities. The document, which shall not substitute for ordinary travel documents, shall be issued in accordance with the form set out in Annex A and will entitle the bearer to the treatment specified herein. Article 20: Settlement of Disputes The OSCE shall make provisions for appropriate modes of settlement of:

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(a) Disputes arising out of contracts or other disputes of a private law character to which the OSCE is a party, in circumstances where the waiver of immunity of the OSCE is not exercised by the Secretary General. (b) Disputes involving Members of the Secretariat and Institutions, Members of Field Operations or Other Persons Performing Tasks of the OSCE, who by reason of their official position enjoy immunity, if immunity has not been waived. Article 21: Settlement of Disputes concerning the Convention Disputes concerning the interpretation or application of the present Convention shall be settled by consultations or any other mode of settlement agreed on between the OSCE and the State(s) Party(ies) or between the States Parties involved in the dispute. Article 22: Signature and Entry into Force 1. The present Convention shall be open for signature at . . . by all participating States until . . . . It shall be subject to ratification, acceptance or approval. 2. The participating States which have not signed the present Convention may subsequently accede thereto. 3. The present Convention shall enter into force sixty days after the date of deposit of the instruments of ratification, acceptance, approval or accession by two-thirds of the participating States. 4. For every participating State which ratifies, accepts, approves or accedes to the present Convention after the date of its entry into force, the present Convention shall enter into force sixty days after the date of deposit of its instrument of ratification, acceptance, approval or accession. 5. The Secretary General shall serve as depositary of the present Convention. Article 23: Provisional Application of the Present Convention A participating State may declare at any time that it will apply the present Convention provisionally until it enters into force for it in accordance with paragraphs 3 and 4 of Article 22. Article 24: Amendments 1. Any State Party may, by written communication addressed to the depository, propose amendments to the present Convention. The depository shall circulate this communication to all States Parties. 2. If, within ninety days from the date of circulation of the proposal for amendments, one third of the States Parties notify the depository that they agree to convene a conference of the States Parties to consider that proposal, the depository shall convene such a conference. The text of any amendment adopted by the conference shall be forwarded by the depository to States Parties for acceptance in accordance with their respective constitutional requirements.

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3. Any such amendment shall come into force on the sixtieth day after all States Parties have notified the depositary of their acceptance thereof. 4. States Parties acceding to the Convention after any amendments thereto have entered into force shall be deemed to have acceded to the present Convention as amended. Article 25: Denunciation 1. Any State Party may, at any time, denounce the present Convention by means of a notification addressed to the depositary. 2. Such denunciation shall become effective one year after the date of receipt of the notification by the depositary. Done at ... on . . . in the English, French, German, Italian, Russian and Spanish languages, all six language versions being equally authentic.

Table of Legislation

Austria • Federal Law on the Legal Status of OSCE Institutions in Austria, Federal Law Gazette No. 511/1993 of 15 May 1993. • The Agreement between the Republic of Austria and the Organization for Security and Co-operation of Europe (OSCE) regarding the Headquarters of the Organization for Security and Co-operation of Europe. Federal Law Gazette (Bundesgesetzblatt) III No. 84/2018. • Germany: Federal Republic of Germany, Verordnung über Vorrechte und Immunitäten der Organisation für Sicherheit und Zusammenarbeit in Europa (OSZE), 18 February 2016, Federal Law Gazette (Bundesgesetzblatt) II No. 4 of 2016, 138 et seq. • Czech Republic: Act No. 125/1992 for the OSCE Secretariat and in particular its Prague Office where the archives unit of the Secretariat is located. • Hungary: Act on Extension to Institutions, Officers and Employees of the Conference on Security and Co-operation in Europe, Representatives of Participating States and Members of CSCE Missions of the Privileges, Exemptions and Mitigations Granted under the 1961 Vienna Convention on Diplomatic Relations, Act LXXXV of 1994. • Italy: The Law of 30 July 1998, n.301, published in the Official Gazette n. 196 on 24/08/1998. • Netherlands: Dutch Act of 31 October 2002 on the legal personality, privileges and immunities of the High Commissioner on National Minorities, Staatsblad 2002, 580 Official Gazette of the Kingdom of the Netherlands. • Poland: Dziennik Ustaw Rzeczypospolitej Polskiej, dnia 16 marca 2018 r., Poz. 560. Arrangement between the Republic of Poland and the Organization for Security and Co-operation of Europe regarding the Status of the Organization for Security and Co-operation of Europe in the Republic of Poland. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 A. Chiniaeva, Parliamentarization of International Governmental Organizations, European Union and its Neighbours in a Globalized World 2, https://doi.org/10.1007/978-3-030-71341-6

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• Sweden: Lag (1976:661) om immunititet och privilegier i vissa fall (Act on Privileges and Immunities in Certain Cases), 2 b §, effective 1 July 1994; Lag (1994:716) om rättslig ställning för institiutioner inom Konferensen om säkerhet och samarbete i Europa (ESK) (Act on the Legal Capacity of CSCE Institutions), effective 9 June 1994. • Switzerland: Federal Act on the Privileges, Immunities and Facilities and the financial Subsidies granted by Switzerland as a Host State, 22 June 2007, RS 192.12 and Switzerland, Ordinance to the Federal Act on the Privileges, Immunities and Facilities and the Financial Subsidies granted by Switzerland as a Host State, 7 December 2007, RS 192.121; • United States: Section 422 of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (Public Law 103-236); Executive Order 13029 of December 3, 1996.

European Union Treaties • Consolidated Version of the Treaty Establishing the European Community (EC Treaty), 2006 O.J. C 321 E/37. • Consolidated Version of the Treaty on the Functioning of the European Union (TFEU), 2008, O.J. C 115/47. • Single European Act (SEA), 1987 O.J. L 169/1 (amending Treaty Establishing the European Economic Community (EEC), Mar. 25, 1957, 298 U.N.T.S. 11. • Treaty Establishing the European Atomic Energy Community (Euratom Treaty), 25 March 1957, 298 U.N.T.S. 167. • Treaty Establishing the European Coal and Steel Community (ECSC Treaty), 18 April 1951, 261 U.N.T.S. 140. • Treaty Establishing the European Economic Community (EEC Treaty), 25 March 1957, 298 U.N.T.S. 11. • Treaty amending certain budgetary provisions of the Treaties establishing the European Communities and of the Treaty establishing a Single Council and a Single Commission of the European Communities, signed in Luxembourg on 22 April 1970. Official Journal of the European Communities (OJEC). 02.01.1971, No L 2. [s.l.]. ISSN 0378-6978. Available at: https://www.cvce.eu/ en/unit-content/-/unit/b9fe3d6d-e79c-495e-856d-9729144d2cbd/43ab040db32a-4d30-9f29-93c7e45810be/Resources#93a76f6b-b740-40f0-8b302c7c25fa625d_en&overlay. Accessed 23 April 2020. • Treaty of Amsterdam amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts (Treaty of Amsterdam), 1997 O.J. C 340/1. • Treaty on European Union (Maastricht TEU), July 29, 1992, 1992 O.J. C 191/1.

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European Council Decisions and Other Documents • Act concerning the election of the representatives of the Assembly by direct universal suffrage. O.J. L 278, 08.10.1976, pp. 5–11. Available at: https://eur-lex. europa.eu/eli/dec/1976/787(2)/oj. Accessed 06 August 2018. • Memorandum of Understanding between the Council of Europe and the European Union, Council of Europe 2007. Available at: https://rm.coe.int/ 16804e437b. Accessed 02 June 2020. • Council Regulation (EU, Euratom) No 1311/2013 of 2 December 2013 laying down the multiannual financial framework for the years 2014-2020. O.J. L 347, 20.12.2013, pp. 884–891. Available at: http://eur-lex.europa.eu/legalcontent/EN/TXT/?uri¼CELEX%3A32013R1311. Accessed 12 November 2017. • European Council Decision (EU) 2018/937 of 28 June 2018 establishing the composition of the European Parliament. Available at: https://eur-lex.europa.eu/ legal-content/EN/TXT/PDF/?uri¼CELEX:32018D0937. Accessed 18 April 2020. • European Council Decision No 2014/145/CFSP of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine. O.J. L 78, 17.3.2014. • European Council Decision No 2014/512/CFSP of 31 July 2014 concerning restrictive measures in view of Russia's actions destabilizing the situation in Ukraine. O.J. L 229, 31.7.2014. • European Council Decision No 2006/512/EC of 17 July 2006 amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission (The Council Comitology Decision). OJ L 200, 22.7.2006. • Interinstitutional Agreement of 2 December 2013 between the European Parliament, the Council and the Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management. O. J. C 373, 20.12.2013, pp. 1–11. Available at: http://eur-lex.europa.eu/legalcontent/en/TXT/?uri¼celex%3A32013Q1220%2801%29. Accessed 12 November 2017. • Framework Agreement on relations between the European Parliament and the European Commission, OJ L 304, 20.11.2010, p. 47–62. Available at: https://eurlex.europa.eu/legal-content/EN/TXT/?uri¼CELEX:32010Q1120(01). Accessed 23 April 2020. • Joint Declaration of the European Parliament, the Council and the Commission Concerning the Institution of a Conciliation Procedure between the European Parliament and the Council. Official Journal C 089, 22.04.1975, pp. 1–2. Available at: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri¼CELEX% 3A31975Y0422(01). Accessed 06 August 2018. • Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Bank. O.J. C 326, 26.10.2012, pp. 230–250. Available at:

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https://www.ecb.europa.eu/ecb/legal/pdf/c_32620121026en_protocol_4.pdf. Accessed 16 August 2018. • Protocol (No 6) on the Location of the Seats of the Institutions and of Certain Bodies, Offices, Agencies and Departments of the European Union, 26 October 2012, O.J. C 326, p. 265. • Regulation (EC) No 1920/2006 of the European Parliament and of the Council of 12 December 2006 on the European Monitoring Centre for Drugs and Drug Addiction, (recast). Available at: http://data.europa.eu/eli/reg/2006/1920/201811-23. Accessed 23 April 2020. • Regulation (EC) No 401/2009 of the European Parliament and of the Council of 23 April 2009 on the European Environment Agency and the European Environment Information and Observation Network (Codified version). OJ L 126, 21.5.2009, p. 13–22. Available at: http://data.europa.eu/eli/reg/2009/401/ oj. Accessed 23 April 2020.

Resolutions of the European Parliament and Other Documents • Rules of Procedure of the European Parliament, 7th parliamentary term– July 2013. • Annex XIV to the Rules of Procedure of the European Parliament, Framework Agreement on Relations Between the European Parliament and the European Commission. Parliament’s Decision of 20 October 2010. O.J. L 304, 20.11.2010, pp. 47–62. • European Parliament Resolution on the Alleged use of European Countries by the CIA for the transportation and illegal detention of prisoners (2006/2200(INI)), 14 February 2007. • European Parliament Resolution of 7 February 2018 on the composition of the European Parliament (2017/2054(INL) — 2017/0900(NLE)). Availa b l e a t : h t t p s : / / e u r - l e x . e u r o p a . e u /l e g a l - c o n t e n t / E N / T X T / P D F / ? uri¼CELEX:52018IP0029&rid¼8. Accessed on 18 April 2020. • European Parliament Resolution on the relations between the European Union and the United Nations (2003/2049(INI)), 29 January 2004. • European Parliament Recommendation to the Council on the 73rd session of the United Nations General Assembly (2018/2040(INI)), 5 July 2018. • Report of the Special Committee on terrorism (TERR) on findings and recommendations (2018/2044(INI)) of 21.11.2018. Available at: https://www.europarl. europa.eu/doceo/document/A-8-2018-0374_EN.html?redirect. Accessed on 19 April 2020. • Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency,

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amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/ EC and 2000/21/EC. Available at: http://data.europa.eu/eli/reg/2006/1907/202002-27. Accessed 23.04.2020.

Table of International Treaties, Conventions and Other Documents of the IGOs

• Statute of Commonwealth of Independent States. Minsk, 22 January 1993. Available in Russian at: http://www.internationaldemocracywatch.org/index. php/commonwealth-of-indipendent-states-treaties-and-protocols/288-statute-ofcis. Accessed 15 April 2018. • The Helsinki Treaty No 6262 (Agreement between Finland, Denmark, Iceland, Norway and Sweden Concerning Co–operation), Helsinki, 23 March1962. Available at: https://treaties.un.org/doc/Publication/UNTS/Volume% 20434/volume-434-I-6262-English.pdf. Accessed 24 September 2018. • Traité, Portant Révision Du Traite Instituant l’Union Economique BENELUX, The Hague, 3 February 1958. Available at: http://www.benelux. int/files/3914/0067/7093/trait_Benelux_17.06.2008Ondertekend.pdf. Accessed 16 April 2018.

United Nations • Declaration of Principles for International Election Observation and Code of Conduct for International Election Observers, 27 October 2005, United Nations, New York. Available at: https://www.osce.org/odihr/16935? download¼true. Accessed 24 September 2018. • CCPR General Comment No. 25: Article 25 (Participation in Public Affairs and the Right to Vote), The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service. CCPR/C/21/Rev.1/Add.7, 12 July 1996. • UN Commission on Human Rights, Report of the Representative of the Secretary-General, Mr. Francis M. Deng, submitted pursuant to Commission resolution 1997/39, Addendum: Guiding Principles on Internal Displacement. E/CN.4/1998/53/Add.2, 11 February 1998. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 A. Chiniaeva, Parliamentarization of International Governmental Organizations, European Union and its Neighbours in a Globalized World 2, https://doi.org/10.1007/978-3-030-71341-6

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• Universal Declaration of Human Rights, 10 December 1948. • UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, United Nations, Treaty Series, vol. 660, p. 195. Available at: https://www.refworld.org/docid/3ae6b3940.html. Accessed 31 May 2020. • UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13. Available at: https://www.refworld.org/docid/3ae6b3970.html. Accessed 31 May 2020. • UN General Assembly, Resolution A/RES/55/2. United Nations Millennium Declaration. 18 September 2000. • UN General Assembly, Resolution A/RES/61/106. Convention on the Rights of Persons with Disabilities. 24 January 2007. • UN General Assembly, Resolution 135 A/RES/60. World Summit Outcome. 16 September 2005. • UN General Assembly, Resolution A/RES/57/47, 16 January 2003. Cooperation Agreement between the United Nations and the Inter-Parliamentary Union. • UN General Assembly, Resolution A/RES/57/32, 20 January 2003. Observer status for the Inter-Parliamentary Union in the General Assembly. • UN Resolution A/68/272, 19 May 2014. Interaction between the United Nations, national parliaments and the Inter-Parliamentary Union. • UN Resolution A/70/298, 25 July 2016. Interaction between the United Nations, national parliaments and the Inter-Parliamentary Union. • ECOSOC Resolution 1296 (XLIV), 23 May 1968. Arrangements for Consultation with Non-governmental Organizations. Available at: https://www. globalpolicy.org/component/content/article/177/31832.html. Accessed 05 June 2020.

CoE • Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) as amended by Protocols No. 11 and No. 14, Rome, European Treaty Series–No. 5, 4 November 1950. • Decision of the Committee of Ministers, A shared responsibility for democratic security in Europe, No. CM/Del/Dec(2019)129/2, 129th Session of the Committee of Ministers, Helsinki, 17 May 2019. • Decision of the Committee of Ministers’ Deputies of the Council of Europe, No. CM/865/01122004 on enhanced cooperation and coordination between the Council of Europe and the OSCE, 2 December 2004. • Declaration on Co-operation between the Council of Europe and the Organization for Security and Co-operation in Europe of 17 May 2005, Warsaw. Available at: https://rm.coe.int/CoERMPublicCommonSearchServices/

Table of International Treaties, Conventions and Other Documents of the IGOs

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•

•

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205

DisplayDCTMContent?documentId¼090000168046a481. Accessed 7 June 2018. European Commission for Democracy through Law (Venice Commission). Code of Good Practice in Electoral Matters: Guidelines and Explanatory Report. Opinion no. 190/2002, CDL-AD (2002) 23 rev, Strasbourg, 23 May 2003. European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, European Treaty Series–No. 126, Strasbourg, 26 November 1987. European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations, European Treaty Series–No. 124, Strasbourg, 24 April 1986. Political Resolution. The Hague Congress, Council of Europe. Congress of Europe. The Hague, 7–11 May, 1948, Council of Europe Publishing, 1999. Recommendation CM/Rec(2007)15 of the Committee of Ministers to member states on measures concerning media coverage of election campaigns. Adopted by the Committee of Ministers on 7 November 2007 at the 1010th meeting of the Ministers’ Deputies. Recommendation CM/Rec(2009)1 of the Committee of Ministers to member states on electronic democracy (e-democracy). Adopted by the Committee of Ministers on 18 February 2009 at the 1049th meeting of the Ministers’ Deputies. Recommendation Rec(2003)3 of the Committee of Ministers to member states on balanced participation of women and men in political and public decision making. Adopted by the Committee of Ministers on 12 March 2003 at the 831st meeting of the Ministers’ Deputies. Recommendation Rec(2003)4 of the Committee of Ministers to member states on common rules against corruption in the funding of political parties and electoral campaigns (Adopted by the Committee of Ministers on 8 April 2003 at the 835th meeting of the Ministers’ Deputies). Recommendation Rec(2004)11 of the Committee of Ministers to member states on legal, operational and technical standards for e-voting. Adopted by the Committee of Ministers on 30 September 2004 at the 898th meeting of the Ministers' Deputies. Recommendation Rec(2004)15 of the Committee of Ministers to member states on electronic governance (“e-governance”). Adopted by the Committee of Ministers on 15 December 2004 at the 909th meeting of the Ministers' Deputies). Resolution (99) 50 on the Council of Europe Commissioner for Human Right, 7 May 1999. Resolution 2319 (2020) Provisional version, Complementary joint procedure between the Committee of Ministers and the Parliamentary Assembly in response to a serious violation by a member State of its statutory obligations, 29 January 2020. Staff Regulations of the Council of Europe, adopted by Resolution Res(81)20 of the Committee of Ministers, 25 September 1981. Statute of the Council of Europe, European Treaty Series–No. 1, London, 5 May 1949.

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• Statutory Resolution No. (49) 20 on the Deputy Secretary-General for Assembly Services, adopted by the Committee of Ministers on 3 November 1949. • Statutory Resolution No. (51) 30, adopted by the Committee of Ministers on 3 May 1951. • Statutory Resolution No. (93) 26 on Observer Status, adopted by the Committee of Ministers, 14 May 1993. • Vienna Declaration. Declaration of the Council of Europe's First Summit (Vienna, 9 October 1993). Available at: https://www.cvce.eu/en/obj/declara tion_of_the_council_of_europe_s_first_summit_vienna_9_october_1993-end7c530b5-a7c9-43f9-95af-c28b3c8b50d3.html. Accesses 02 October 2018.

OSCE • Budapest Document 1994 of the CSCE, Towards a Genuine Partnership in a New Era, Corrected version 21 December 1994. • Budapest Summit Declaration, Towards a Genuine Partnership in a New Era, Corrected Version 21 December 1994. • Charter of Paris for a New Europe, 21 November 1990, signed at Second CSCE Summit of Heads of State or Government, Paris, 19–21 November 1990. • Cooperation Agreement between the Chairman-in-Office and the President of Parliamentary Assembly, CIO.GAL/7/97,15 September 1997. • CSCE Helsinki Document 1992, “The Challenges of Change”, Helsinki Summit 9–10 July 1992. Available at: https://www.osce.org/mc/39530? download¼true. Accessed 13 September 2018. • Decision on Legal Capacity and Privileges and Immunities, CSCE /4-C/Dec.2 of 1 December 1993. • Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, 29 June 1990. • Eighteenth Meeting of the Ministerial Council, Elements of the Conflict Cycle, related to Enhancing the OSCE’s Capabilities in Early Warning, Early Action, Dialogue Facilitation and Mediation Support, and Post-Conflict Rehabilitation, MC.DEC/3/11 of 7 December 2011. • Eleventh Meeting of the Ministerial Council, OSCE Strategy to Address Threats to Security and Stability in the Twenty-First Century, MC.DOC/1/03 of 2 December 2003. • Final Document of the Fourth Meeting of the CSCE Council of Ministers, CSCE and the New Europe–Our Security is Indivisible, 30 November– 1 December 1993. • Final Recommendations of the Helsinki Consultations, 3 July 1973. Available at: https://www.osce.org/mc/40213. Accessed 11 September 2018. • Implementation of MC Decision No. 3/11 on ‘Elements of the Conflict Cycle’, with a focus on Early Action in Response to Crises and Conflicts, Food–for–

Table of International Treaties, Conventions and Other Documents of the IGOs

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207

Thought Paper prepared for the 3rdMeeting of the ‘Open-ended Working Group on the Conflict Cycle’, SEC.GAL/84/12 of 10 May 2012. Istanbul Document 1999, January 2000/Corr. Available at: https://www.osce.org/ mc/39569?download¼true. Accessed 17 September 2018. OSCE MC Decision 19/06 on Strengthening the Effectiveness of the OSCE of 5 December 2006. OSCE PC Decision 637 on Enhanced Co-operation between the Organization for Security and Co-operation in Europe (OSCE) and the Council of Europe (CoE), 2 December 2004. OSCE Permanent Council Decision on Deployment of an OSCE Special Monitoring Mission to Ukraine, PC.DEC/1117 of 21 March 2014. Rules of Procedure of the OSCE, MC.DOC/1/06 of 1 November 2006.

NATO • Declaration on a Transformed North Atlantic Alliance was issued by the Heads of State and Government participating in the meeting of the North Atlantic Council in 1990. Available at: https://www.nato.int/cps/en/natohq/official_texts_ 23693.htm? Accessed 26 April 2020.

Table of International Agreements, Declarations, Resolutions, and Other Documents of the International Parliamentary Organs, Institutions

IPU • Agreement between the Swiss Federal Council and the Inter-Parliamentary Union to Settle the Juridical Status of this Organization in Switzerland of 28 September1971.Available at: http://www.internationaldemocracywatch.org/attachments/ 141_Agreement-IPU-Switzerland-juridical-status-IPU-28-September-1971.pdf. Accessed 24 April 2020. • Cooperation Agreement between the ILO and the IPU, signed 27 May 1999, Geneva. Official Bulletin, Volume LXXXII, Series A, 1999. Available at: http:// www.ilo.org/wcmsp5/groups/public/%2D%2D-dgreports/%2D%2D-jur/docu ments/genericdocument/wcms_439859.pdf. Accessed 11 January 2018. • Cooperation Agreement Between the UN and the IPU of 24 July 1996. Available at http://www.internationaldemocracywatch.org/attachments/142_Coopera tion-Agreement-UN-IPU-24-July-1996.pdf. Accessed 10 January 2018. • Cooperation Agreement between the United Nations and the Inter-Parliamentary Union of 21 July 2016. Available at http://archive.ipu.org/finance-e/UN-IPU.pdf. Accessed11 January 2018. • Consolidate Budget of the IPU for 2018. Adopted at 137th IPU Assembly in St. Petersburg, Russian Federation,14 – 18 October 2017. EX/276/6(b)-P.1 CL/201/7-P.1, 18 October 2017. Available at: http://archive.ipu.org/finance-e/ budget.htm. Accessed 23 January 2018. • Executive Order of the White House on the IPU 1998. Available at http://www. internationaldemocracywatch.org/index.php/inter-parliamentary-union-treatiesand-protocols/143-executive-order-of-the-white-house-on-the-ipu-1998. Accessed 04 January 2018. • Financial Regulations of the IPU adopted in April 1996. Available at http:// archive.ipu.org/strct-e/finregl-new.htm#3. Accessed 23 January.2018.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 A. Chiniaeva, Parliamentarization of International Governmental Organizations, European Union and its Neighbours in a Globalized World 2, https://doi.org/10.1007/978-3-030-71341-6

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Table of International Agreements, Declarations, Resolutions, and Other Documents. . .

• Memorandum of Understanding between UNDP and the IPU, 21 November 2007, Cape Town. Results of the 118th Assembly and Related Meetings of the Inter-Parliamentary, IPU 118th Assembly, p.54. Available at: http://archive.ipu. org/conf-e/118/118.pdf. Accessed 15 January 2018. • Memorandum of Understanding on co-operation between the IPU and the OHCHR, 2 July 1999, Geneva, Treaty Series 2072 I:35925-35939 II:1221, United National Publications, p. 408. • Memorandum on co-operation between the Parliamentary Assembly of the Council of Europe and the Inter-Parliamentary Union of 11 May 1993. • Rules of Procedure of the Parliamentary Conference of the WTO, adopted on 26 November 2004, amended on 12 September 2008. Available at: http://archive. ipu.org/splz-e/trade08/rules.htm. Accessed 03 July 2018. • Rules of the Assembly. Available at: http://archive.ipu.org/strct-e/asmblrulesnew.htm Accessed 20 January 2018. Rules of the Standing Committees adopted in 1971 (updated in April 2017). Available at http://archive.ipu.org/strct-e/ cmtrules-new.htm. Accessed 23 January 2017. • Rules of the Executive Committee adopted in 1972 (updated in April 2017). Available at http://archive.ipu.org/strct-e/exrules-new.htm. Accessed 22 January 2018. • Rules of the Secretariat of the IPA adopted in April 1996 (updated in March 2013). Available at http://archive.ipu.org/strct-e/scrtrules-new.htm#2. Accessed 23 January 2018. • Statutes of the Inter-Parliamentary Union, adopted in 1976, extensively revised in October 1983 and amended in April 2003, October 2013, March 2016 and April 2017. Available at: http://archive.ipu.org/strct-e/statutes-new.htm#Foot1. Accessed 31 August 2018. • The Tax Reimbursement Agreement between the Permanent Mission of the United States of America to the UN Office and Other International Organizations in Geneva and the IPU. United States Treaties and Other International Agreements, Volume 33, Part 4, Department of State, 1988, p. 4143.

OSCE PA • Resolution on Political Affairs and Security, Vienna Declaration 1994, PA(94)7. • Resolution on Transparency and Further OSCE Reform: Reinforcement of Parliamentary Participation in the Organization, Astana Declaration 2008. • Final Resolution Concerning the Establishment of the CSCE Parliamentary Assembly, Madrid, 2nd and 3rd April 1991. • Rules of Procedure of the OSCE PA, 29 July 2013. • Resolution on Correcting the Democratic deficit of the OSCE, St. Petersburg Declaration of the OSCE PA, 10 July 1999. • Resolution on co-operation between the OSCE and OSCE PA, Edinburgh Declaration 2004.

Table of International Agreements, Declarations, Resolutions, and Other Documents. . .

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• Resolution on Strengthening the involvement of the OSCE Parliamentary Assembly in the Corfu Process on Security in Europe, Oslo Declaration 2010. • Resolution on Strengthening the Role, Efficiency and Impact of the OSCE PA, Oslo Declaration 2010. • Resolution on Enhancing Trust, Transparency and Accountability within the OSCE Institutions, Istanbul Declaration 2013. • Resolution on Strengthening Relations between the OSCE PA and the OSCE, Tbilisi Declaration 2016. • Resolution on the Role and the Status of the Parliamentary Assembly within the OSCE, Kyiv Declaration 2007. • Helsinki Final Declaration, 2015. • OSCE Parliamentary Assembly Code of Conduct on Politico-Democratic Aspects of Co-operation. OSCE Yearbook 1997, IFSH (ed), Nomos, 1998, Annex, pp 483 ff. • Rotterdam Declaration of the OSCE Parliamentary Assembly and Resolutions OSCE PA Twelfth Annual Session, Rotterdam, from 5 to 9 July, 2003. • Co-operation Agreement between the OSCE PA and OSCE ODIHR. CIO.GAL/ 7/97 of 2 September 1997.

PACE • Agreement on cooperation between the Parliamentary Assembly of the Council of Europe and the interparliamentary Assembly of the Commonwealth of Independent States, 9 June 1997. Complementary texts to the Rules of Procedure of the PACE, Appendix 2, vii, Strasbourg, October 2014. • Agreement on the strengthening of co-operation between the Parliamentary Assembly of the Council of Europe and the European Parliament, 28 November 2007. Complementary texts to the Rules of Procedure of the PACE, Appendix 2, x, Strasbourg, October 2014. • Bureau of the Assembly, Guidelines for the observation of elections by the Parliamentary Assembly, AS/Bur (2018) 14 def, 4 June 2018. • Committee of Ministers, Reply to Recommendation 1344 (1997) on the enlargement of the Council of Europe: the budgetary and administrative powers of the Assembly. 21 April 1998, Doc. 8080. • Committee of Ministers, Reply to the Parliamentary Assembly Recommendation 1567 on parliamentary scrutiny of international institutions, CM/AS(2003) Rec1567-final, 23 January 2003. • Final Declaration/Conclusions, Parliamentary Conference Doha/Qatar, 11 November 2001. Available at: http://www.europarl.europa.eu/intcoop/ conference_wto/2001_doha/documents/final_declaration_en.pdf. Accessed 05 February 2018.

212

Table of International Agreements, Declarations, Resolutions, and Other Documents. . .

• Item 1.3 of CM/Del/Dec(98)615, the 615th meeting of the Ministers' Deputies, 20 January 1998. Available at: https://search.coe.int/cm/Pages/result_ details.aspx?ObjectID¼09000016805e31bd. Accessed 18 September 2018. • Item 1.6 “Procedure of the Committee of Ministers for dealing with questions from members of the Parliamentary Assembly.” CM(2008)4-final, the 1015 Meeting of Ministers' Deputies, 16 January 2008. Available at: https://search. coe.int/cm/Pages/result_details.aspx?ObjectID¼09000016805d4690. Accessed 18 September 2018. • Item1.6 “Revised guidelines for the reform and modernization of the Committee's working methods.” of CM(2011)96-final, the 1134 meeting of Ministers' Deputies 15 February 2012. Available at: https://search.coe.int/cm/Pages/result_ details.aspx?ObjectID¼09000016805cb054. Accessed 18 September 2018. • Opinion 188 (1995) of PACE on “Application by Moldova for membership of the Council of Europe,” 27 June 1995. Available at: http://assembly.coe.int/nw/xml/ XRef/Xref-XML2HTML-en.asp?fileid¼13927&lang¼en. Accessed 20 September 2018. • Opinion 190 (1995) of PACE on “Application by Ukraine for membership of the Council of Europe,” 26 September 1995. Available at: http://assembly.coe.int/ nw/xml/XRef/Xref-XML2HTML-en.asp?fileid¼13929&lang¼en. Accessed 20 September 2018. • Opinion 193 (1996) of PACE on “Application by Russia for membership of the Council of Europe,” 25 January 1996. Available at: http://assembly.coe.int/nw/ xml/XRef/Xref-XML2HTML-en.asp?fileid¼13932&lang¼en. Accessed 20 September 2018. • Opinion of the Venice Commission on the legal problems arising from the coexistence of the Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States and the European Convention on Human Rights, CDL (98) 17, 26 February 1998. • Recommendation 1519 (2001) of PACE on “Co-existence of the Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States and the European Convention on Human Rights,”23 May 2001. • Resolution 943 (1990) of PACE on “Relations between Europe, the United States of America and Canada in the 1990s”, 10 May 1990. • Resolution 1249 (2001) of PACE on “Co-existence of the Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States and the European Convention on Human Rights,” 23 May 2001. • Resolution 1842 (2011) of PACE on “The terms of reference of Parliamentary Assembly committees–implementation of Resolution 1822 (2011) on the reform of the Parliamentary Assembly,” 7 October 2011. • Resolution 1856 (2012) of PACE on “Guaranteeing the authority and effectiveness of the European Convention on Human Rights,” 24 January 2012. • Resolution 1990 (2014) of PACE on “Reconsideration on substantive grounds of the previously ratified credentials of the Russian delegation,” 10 April 2014. • Resolution 2046 (2015) of PACE on “Expenditure of the Parliamentary Assembly for the biennium 2016-2017,” 21 April 2015.

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• Resolution 2287 (2019) of PACE on “Strengthening the decision-making process of the Parliamentary Assembly concerning credentials and voting,” 25 June 2019. • Resolution 2292 (2019) of PACE on “Challenge, on substantive grounds, of the still unratified credentials of the parliamentary delegation of the Russian Federation,” 26 June 2019. • Resolution 2320 (2020) of PACE on “Challenge, on substantive grounds, of the still unratified credentials of the parliamentary delegation of the Russian Federation,” 29 January 2020. • Rules of Procedure of the Assembly with Complementary Texts, adopted by Resolution 1202 (1999), 4 November 1999, last modified by Resolution 2182 (2017), 10 October 2017.

Table of Cases

• Albert Wagner v Jean Fohrmann and Antoine Krier (Case 101-63), ECJ, 12 May 1964, ECLI:EU:C:1964:28. Available at: http://eur-lex.europa.eu/legal-content/ EN/ALL/?uri¼CELEX:61963CJ0101. Accessed on 01 December 2017. • Al Nashiri v. Poland, application no. 28761/11, ECfHR, 24 July 2014. Available at: http://hudoc.echr.coe.int/fre?i¼001-146044. Accessed 17 May 2020. • Bowman v. the United Kingdom, ECtHR, Case no. 141/1996/760/961, 19 February 1998. Available at: http://hudoc.echr.coe.int/eng?i¼001-58134. Accessed 22 August 2017. • European Parliament v Council of the European Communities (Case C-70/88), ECJ, 22 May 1990, ECLI:EU:C:1990:217. • European Parliament v Council of the European Union (Case C-65/93), ECJ, 30 March 1995, ECLI:EU:C:1995:91. • European Parliament v Council of the European Union (Case C‑658/11), ECJ, 24 June 2014, ECLI:EU:C:2014:2025. Available at: http://eur-lex.europa.eu/ legal-content/EN/TXT/?uri¼CELEX%3A62011CJ0658. Accessed on 22 November 2017. • Flaminio Costa v E.N.E.L. (Case 6/64), ECJ, 15 July 1964, ECLI:EU:C:1964:66. • French Republic v European Parliament (Case C-345/95), ECJ, 1 October 1997, ECLI:EU:C:1997:450. Available at: http://eur-lex.europa.eu/legal-content/EN/ TXT/?uri¼CELEX:61995CJ0345. Accesses on 01 December 2017). • Hirst v. the United Kingdom (no. 2), ECtHR, application no. 74025/01, 6 October2005. Available at: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%2200170442%22]}. Accessed 2 October 2018. • Husayn (Abu Zubaydah) v. Poland, application No. 7511/13, ECfHR, Judgment of 24 July 2014. Available at: http://hudoc.echr.coe.int/fre?i¼001146047. Accessed on 17 May 2020. • Janko Rottman v Freistaat Bayern (Case C-135/08), ECJ, 2 March 2010, ECLI: EU:C:2010:104; Opinion of Mr Advocate General Poiares Maduro, 30 September 2009, ECLI:EU:C:2009:588. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 A. Chiniaeva, Parliamentarization of International Governmental Organizations, European Union and its Neighbours in a Globalized World 2, https://doi.org/10.1007/978-3-030-71341-6

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Table of Cases

• Maizena GmbH v Council of the European Communities, Isoglucose–Production quotas (Case 139/79), ECJ, 29 October 1980, ECLI:EU:C:1980:250.Available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri¼CELEX% 3A61979CJ0139. Accessed 21 November 2017. • Mathieu-Mohin and Clerfayt v. Belgium, ECtHR, application no. 9267/81, 2 March 1987 Available at: http://hudoc.echr.coe.int/eng?i¼001-57536. Accessed 22 August 2017. • NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration (Case 26/62), ECJ, 5 February 1963, ECLI:EU:C:1963:1. • Parti écologiste "Les Verts" v European Parliament (Case 294/83), ECJ, 23 April 1986, ECLI:EU:C:1986:166. • SA Roquette Frères v Council of the European Communities, Isoglucose–Production quotas (Case 138/79), ECJ, 29 October 1980, ECLI:EU:C:1980:249. Available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri¼CELEX% 3A61979CJ0138. Accessed on 05 November 2017. • Silverio Acerbis and others v Commission of the European Communities (Case C-320/81) ECJ, 7 March 1990, ECLI:EU:C:1990:96. Available at: https://eurlex.europa.eu/legal-content/EN/TXT/?uri¼CELEX%3A61981CJ0320. Accessed 05 June 2020. • X v. Belgium (A.D.Q. c. BELGIQUE), application no. 1028/61, ECtHR, Decision of 18 September 1961, Yearbook of the Convention, vol. 4, p. 338. Available at: http://hudoc.echr.coe.int/eng?i¼001-108083. Accessed 01 June 2020. • X v. the Federal Republic of Germany, application no. 2728/66, ECtHR, Decision of 6 October 1967, op. cit., vol. 10, p. 338. Available at: http://hudoc.echr.coe.int/ eng?i¼001-3020. Accessed 01 June 2020.

Table of Official Studies, Reports and Guidelines

• A Background Report on the OSCE Legal Capacity and Privileges and Immunities, SEC.GAL/20/00 of 6 March 2000. • Addendum to the Report “United Nations Security Council and European Union Blacklists,” Doc. 11454, 22 January 2008. • Annan, Kofi A. ‘We are the peoples’ the Role of the United Nations in the 21st Century. Millennium Report of the Secretary-General, UN, 2000. • Brownlie, Ian/Goodwin-Gill Guy S. Joint Opinion on The Inter-Parliamentary Union. Prepared on the Instructions of Johnsson, Anders B (Secretary General Inter-Parliamentary Union). Geneva, Switzerland, 31 May 1999. Available at http://archive.ipu.org/finance-e/opinion.pdf. Accessed 12 December 2017. • Code of Conduct on Ethical and Professional Observation of Elections, Institute for Democracy and Electoral Assistance, International IDEA Code of Conduct, Series 1, Pri Bröderna Carlssons Boktryckeri AB, Varberg, 1997. Available at: https://aceproject.org/main/samples/em/emx_o012.pdf. Accessed 31 May 2020. • Council of Europe. Decision on the Competence of the Court to Give an Advisory Opinion, Strasbourg, 2 June 2004. • Council of Europe. Final Report of the Committee of Wise Persons to the Committee of Ministers, CM(98)178, Strasbourg, 20 October 1998. Available at: https://rm.coe.int/16805e328c. Accessed 3 October 2018. • Council of Europe. Relations between the Council of Europe and the Organisation for Security and Co-operation in Europe (OSCE). Common Catalogue of Co-operation Modalities, April 2000. Available at: https://www.cvce.eu/content/ publication/2003/7/30/99ef6a46-9489-4cf8-97a7-d0d806e4d929/publishable_ en.pdf. Accessed 7 June 2018. • Final Report and Recommendations of the Panel of Eminent Persons on Strengthening the Effectiveness of the OSCE, 27 June 2005. Available at: https://www. osce.org/cio/15805?download¼true. Accessed 24 May 2018.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 A. Chiniaeva, Parliamentarization of International Governmental Organizations, European Union and its Neighbours in a Globalized World 2, https://doi.org/10.1007/978-3-030-71341-6

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• Final Report of the General Committee on Political Affairs and Security for the 2011 Annual Session “Follow-Up on Recommendations in the OSCE PA’s Oslo Declaration.” • Food-for-Thought Paper: The OSCE’s Lack of an Agreed Legal Status—Challenges in Crisis Situations; SEC.GAL/20/00 of 6 March 2000; SEC.GAL/71/00 of 13 July 2000. • Election Observation, A Practical Guide for Parliamentarians. Prepared by the PACE, Council of Europe, January 2014. Available at: http://www.assembly.coe. int/LifeRay/APCE/pdf/Elections/ObservationsElectionsGuide-EN.pdf. Accessed 02 June 2020. • Global Policy Forum. Strengthening and Democratizing the United Nations and International Organizations, Millennium NGO Forum, Theme 6, Discussion Paper, 30 May 2000. • ICJ Reports of Judgments. Advisory Opinions and Orders, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 27 June 1986. Available at: http://www.icj-cij.org/ files/case-related/70/070-19860627-JUD-01-00-EN.pdf. Accessed 25 May 2018. • Options for a Parliamentary Dimension of the WTO, Discussion Chutikul Kobsak, MP (Thailand) Parliamentary Conference on the WTO, Geneva, 17-18 February 2003. • OSCE PA. Report on Guantanamo by the Bureau of the OSCE PA Third General Committee, 2015. • OSCE/ODIHR Election Observation Mission. Final Report on Republic of Armenia Parliamentary Elections, on 2 April 2017. Published in Warsaw, 10 July2017. Available at: https://www.osce.org/odihr/328226?download¼true. Accessed 02 October 2018. • Report and Recommendation of the Credentials Committee regarding the Russian Federation’s Designation of Ms. Olga Kovitidi as a Member of the OSCE PA of 18 February 2015. • Report of the Committee on Constitutional Affairs (EP) on The General Revision of Parliament’s Rules and Procedure, 22 November 2016, 2016/2114(REG), rapporteur Corbett, Richard. • Report of the Committee on Foreign Affairs (EP) on A European Parliament Recommendation to the Council on the 73rd Session of the United Nations General Assembly [2018/2040(INI)]. Debates on 2 July 2018, rapporteur: Freund, Eugen (A8-0230/2018). • Report of the Committee on Legal Affairs and Human Rights of the PACE. “Reinforcing the effectiveness of Council of Europe treaty law,” 26 February 2010, Doc. 12175, rapporteur: Prescott, John. • Report of the Committee on Legal Affairs and Human Rights of the PACE. “United Nations Security Council and European Union blacklists,” 16 November 2007, Doc. 11454, rapporteur: Marty, Dick. • Report of the Committee on Legal Affairs and Human Rights of the PACE. “Alleged secret detentions and unlawful inter-state transfers of detainees

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involving Council of Europe member states,” 12 June 2006, Doc. 10957, rapporteur: Marty, Dick. Report of the Committee on Legal Affairs and Human Rights of the PACE. “Coexistence of the Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States and the European Convention on Human Rights,” 3 May 2001, Doc. 9075, rapporteur: Holovaty, Serhiy. Report of the Committee on Legal Affairs and Human Rights. “Implementation of judgments of the European Court of Human Rights,” 9 September 2015, Doc. 13864, rapporteur: Vries, Klaas de. Report of the Committee on Political Affairs and Democracy of the PACE. “For more democratic elections,” 14 September 2012, Doc. 13021, rapporteur: Gardetto, Jean-Charles. Report of the Committee on Political Affairs and Democracy of the PACE. “United Nations reform and the Council of Europe member states”, 14 September 2009, Doc. 12018, rapporteur: Gross, Andreas. Report of the Committee on Political Affairs and Democracy of the PACE. “Parliamentary dimension of the United Nations”, 21 December 2005, Doc. 10771, rapporteur: Zulueta, Tana de. Report of the Panel of Eminent Persons on United Nations–Civil Society Relations. UN Doc A/58/817, 11 June 2004. Available at: http://unpan1.un.org/ intradoc/groups/public/documents/un-dpadm/unpan041831.pdf. Accessed 7 March 2018. Report of the Secretary-General on Cooperation between the United Nations and the Inter-Parliamentary Union. UN Doc. A/52/456 of 13 October 1997, p. 4. Available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/N97/271/04/ PDF/N9727104.pdf?OpenElement. Accessed 11 January 2018. Report of the Secretary-General on the implementation of the Report of the Panel of Eminent Persons on United Nations–Civil Society Relations. UN Doc. A/ 58, 17 September 2004. Available at: https://www.globalpolicy.org/images/pdfs/ 0904sgreport.pdf. Accessed 09 March 2018). Report OSCE PA. Tenth Winter Meeting, Vienna, Austria, 24-25 February 2011. Report to the Ministerial Council on Strengthening the Legal Framework of the OSCE in 2014, MC.GAL/5/14 of 2 December 2014. Report to the Ministerial Council on Strengthening the Legal Framework of the OSCE in 2015, MC.GAL/4/15 of 1 December 2015. Report to the Ministerial Council on Strengthening the Legal Framework of the OSCE in 2018, MC.GAL/10/18 of 7 December 2018. Report: Colloquium on “The Future of the OSCE,” A Joint Project of the OSCE Parliamentary Assembly and the Swiss Institute for World Affairs, Washington, 5–6 June 2005, pp 8 ff. Reprinted in: Institute for Peace Research and Security Policy at the University of Hamburg/IFSH (ed), OSCE Yearbook 2005, Nomos, 2006, pp 381 ff. Trindade, Antônio, Augusto, Cançado/ Frowein, Jochen A. “Analysis of the legal implication for States that intend to ratify both the European Convention on Human Rights and its protocols and the Convention on Human Rights of the

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Commonwealth of Independent States.” Human Rights Law Journal, Vol. 17, No 3- 6, 15 October 1996, pp 164 ff. • Ulfstein, Geir. The Council of Europe and the OSCE: Enhancing Co-Operation and Complementarity Through Greater Coherence, Directorate of Policy Planning (2012)1, Strasbourg, 23 March 2012.

List of Websites

Council of Europe. https://www.coe.int/ Digital Research in European Studies, University of Luxembourg’s CVCE.eu. https://www.cvce. eu/ eBook Collection (EBSCOhost). https://www.ebscohost.com/ EUR-Lex. https://eur-lex.europa.eu/ European Parliament. http://www.europarl.europa.eu/portal/en HeinOnline Databases. https://home.heinonline.org/content/databases/ International Court of Justice. https://www.icj-cij.org/en/court International Democracy Watch. http://www.internationaldemocracywatch.org Inter-Parliamentary Union. http://archive.ipu.org/english/home.htm Kluwer Law Online Wolters Kluwer. https://www.kluwerlawonline.com/ Online library. https://www.questia.com/ Organization for Security and Co-operation in Europe. https://www.osce.org/ Organization for Security and Co-operation in Europe Parliamentary Assembly. https://www. oscepa.org/ Oxford Public International Law, Max Plank Encyclopedia of Public International Law (online edition). http://opil.ouplaw.com Refworld. www.refworld.org The Yearbook of the United Nations. https://unyearbook.un.org/ UN Official Document System. https://documents.un.org/prod/ods.nsf/home.xsp

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