By Dr. Nikos Vogiatzis, University of Essex
Russia is no longer a member state of the Council of Europe. On 16 March, the Committee of Ministers (CM) of the Council of Europe decided, “in the context of the procedure launched under Article 8 of the Statute of the Council of Europe, that the Russian Federation ceases to be a member of the Council of Europe”. The decision was effective immediately. This came just a day after the Parliamentary Assembly of the Council of Europe (PACE) unanimously recommended that ‘the Committee of Ministers should request the Russian Federation to immediately withdraw from the Council of Europe’ and, if Russia does not comply, ‘that the Committee of Ministers determines the immediate possible date from which the Russian Federation would cease to be a member of the Council of Europe’. At the same time, shortly before PACE voted on this matter, the Russian Federation had submitted a formal notification to the Secretary-General indicating that it would withdraw from the Council of Europe under Article 7 of the Statute, and that it would denounce the European Convention on Human Rights. This post will revisit some of the key decisions of the last three weeks, demonstrating how these decisions could shed light on legal ambiguities surrounding withdrawal, suspension and expulsion from the Council of Europe.
Suspension and Expulsion
After its invasion of Ukraine, an obvious and fundamental violation of international law, the Council of Europe has clearly taken a firm stance against Russia. It was understood that, after more than two decades of a turbulent relationship, the war in Ukraine could not warrant anything less than an immediate and clear reaction. Thus, the Secretary-General, the Committee of Ministers, the President of the Venice Commission – among others – have all condemned on multiple occasions and in the strongest terms the invasion. For the first time, Article 8 of the Council of Europe Statute was relied upon on 25 February to suspend Russia’s rights of representation in the Council of Europe. The European Court of Human Rights also granted urgent interim measures, asking Russia to refrain from military attacks against civilians and civilian objects and abstain from blocking and terminating the activities of Novaya Gazeta. On 15 March and 16 March the PACE and CM adopted the aforementioned historic opinion and decision, respectively.
Questions surrounding the withdrawal, suspension and expulsion from the Council of Europe had not been the subject of extensive scholarly analysis, until the insightful study by Dzehtsiarou and Coffey of 2019. The key provisions are indeed Articles 7 and 8 of the Council of Europe’s Statute – but, as Milanovic observed, the wording of these provisions is not ideal. These provisions should be read alongside Article 3 of the Statute, which states the values of the Council of Europe. Thus, the clear political determination of the Council of Europe’s organs to request Russia to withdraw took place in the context of a number of legal ambiguities surrounding the relationship between Articles 8 and 7, in particular. After all, this is the first time that Article 8 is enforced against a member state. In that sense, the expulsion decision against Russia has shed light on the applicable legal framework in a number of ways, as will be shown below.
Key decisions since 24 February
The exposition of key decisions of the CM and PACE is selective and focused on the scope of the post; all decisions or further information is available here:
24 February: The CM decides to hold an extraordinary meeting on 25 February to examine measures to be taken under Article 8.
25 February: The CM decides, under Article 8, to suspend Russia’s rights of representation in the Council of Europe. Resolution CM/Res(2022)1 on 2 March clarifies that the suspension concerns the CM, PACE, the Congress of Local and Regional Authorities and committees set up under Articles 15.a, 16 and 17 of the Statute.
10 March: Russia announces (albeit not formally triggering Article 7) its intention of not participating in the Council of Europe.
10 March: On the same day, the CM decides to consult PACE with a view to deciding further measures against Russia under Article 8. PACE had already decided, on 25 February, to hold an extraordinary meeting on 14 and 15 March to discuss the consequences of the Russian Federation’s aggression against Ukraine.
14 March: PACE begins the extraordinary meeting; the members show clear support for the further use of Article 8. A draft report on the ‘Consequences of the Russian Federation’s aggression against Ukraine’ is circulated among members.
15 March: Shortly before the vote, the Russian Federation submits its letter under Article 7 and also notifies the Secretary-General of its intention to denounce the European Convention on Human Rights (ECHR) under Article 58 ECHR. The President of the Assembly (rightly, as will be shown below) informs the members that the Article 7 letter will in no way impact the discussions and the vote on the further use of Article 8.
15 March: PACE votes unanimously in favour of the CM requesting Russia to withdraw from the Council of Europe ‘immediately’.
15 March: After the vote, the Secretary-General, the Chair of the CM and PACE’s President make a joint statement on the ‘exclusion’ of Russia, indicating that it can no longer be a member of the organisation.
16 March: The CM decides to end Russia’s membership with immediate effect, namely from 16 March 2022.
A two-step process against Russia and the role of the Assembly
The first point to be noted is that, on this occasion, Article 8 was used as a two-step process. The first step was the suspension decision on 25 February. The second step was that of ‘expulsion’. Thus, the further use of Article 8 referred to in the decision of 10 March concerned the second step, which is that of ‘expulsion’. Nevertheless, Article 8 is not ideally worded as it refers to Article 7. This matter is returned to below. The question as to why the Parliamentary Assembly was not consulted more extensively (see below) prior to the suspension decision of 25 February could be answered with reference to Statutory Resolution (51) 30, Admission of new members (annexed to the Statute), which also refers to withdrawal:
The Committee of Ministers, before inviting a State to become a Member or Associate Member of the Council of Europe, in accordance with Articles 4 and 5 of the Statute, or inviting a Member of the Council of Europe to withdraw, in accordance with Article 8, shall first consult the Consultative (Parliamentary) Assembly in accordance with existing practice.
The above provision indicates that the Parliamentary Assembly should be consulted prior to the request to withdraw under Article 8 – but not necessarily in the case of suspension. It was possibly felt that it was of the utmost importance to activate immediately Article 8 and proceed with the suspension decision that it entailed on 25 February. However, the Decision of 25 February was adopted ‘[f]ollowing an exchange of views with the Parliamentary Assembly in the Joint Committee’, so clearly the Parliamentary Assembly was involved.
Simultaneously, it is worth noting that Article 8 of the Statute is not the only provision which could have been drafted in a clearer way. Indeed, the above provision in Statutory Resolution (51) 30 is not ideally worded, too. In particular, it refers to an ‘invitation to withdraw’, while Article 8 indicates that this is not an invitation but rather a request.
Russia’s expulsion and the full separation of Articles 7 and 8
When the Assembly prepared and circulated the draft report on the further use of Article 8, it was not known, it appears, that Russia would submit the Article 7 letter shortly afterwards. When that was announced, the Parliamentary Assembly rightly continued with the consideration of the use of Article 8 despite the activation of Article 7. As von Gall argued, even if Article 7 would be triggered by Russia, the organs of the Council of Europe would still need to proceed with the request to leave under Article 8. As she explained, ambiguities surrounding membership of the Council of Europe should not be used to undermine the mandate of the organization. Nothing in the text of the Statute appears to suggest that such a move is not legally permissible.
It is now known that Article 7 was triggered by Russia on 15 March. The above sequence of decisions indicates that the Council of Europe organs were determined to force Russia to withdraw – in effect, to expel it from the organization. The Article 7 letter was an attempt by Russia to avoid that. It is important to recall that, under the text of Article 7, the withdrawal takes effect at the end of the financial year. Simultaneously, one of the amendments that were adopted in the report of the Assembly concerned precisely the addition of the word ‘immediately’ – which brings to the fore the question of the timing of withdrawal and the possibility of immediate expulsion (which, as we know now, is exactly what has happened). Leaving aside the timing of withdrawal, and contrary to Article 8, Article 7 provides for a ‘voluntary withdrawal’ (p. 65) – which clearly is not the case here as we are before the most serious violation of Article 3 of the Statute.
As the draft, and then the adopted Opinion, confirm, the Assembly was of the view that no discretion should be left to the Committee, and it thought so even before the submission of the Article 7 letter. This is legally significant because Article 8 provides that if the state does not comply, the Committee ‘may decide’ that the state is not a member after a specific date. Of course, the Opinion of the Assembly is not binding as the Committee makes the decision – but, as already noted, it proved very influential.
In this context, the activation of Article 7 by the Russian Federation on 15 March (and the withdrawal at the end of the financial year that it implied) inevitably brought to the fore the interplay between Articles 8 and 7 of the Statute. Article 8 provides that the Committee of Ministers can request a state ‘to withdraw under Article 7’. Simultaneously, it has already been mentioned that Article 7 provides for a voluntary withdrawal and also that the use of Article 8 is autonomous from Article 7: a state cannot use Article 7 at will to evade the consequences of the use of Article 8 by the Council of Europe.
The decision to expel immediately was made by the Committee, taking into account the Opinion of the Assembly. After this sequence of decisions, Article 8 could have been interpreted by the CM in at least two ways. First, as implying a connection with Article 7 in the following way: that the request to withdraw if the state complies would take place under the terms of Article 7, namely by the end of the financial year. Differently put, that an ‘expulsion’ on a specific date (including with immediate effect) could only take place once it was established that the member state in question is unwilling to cooperate. This situation could be viewed as a de facto expulsion, even if legally Russia would remain a member state until the end of the financial year. By analogy, the example that Klein provides (p. 66) of the Greek military junta would be of relevance (Greece, having declared its withdrawal under Article 7, was de facto suspended from December 1969 until the end of the next financial year).
Second, Article 8 could be (and indeed was) interpreted as enshrining a right to terminate the state’s membership immediately, regardless of whether or not the state cooperates. This position strengthens the connection between Articles 3 and 8, thereby providing for the possibility of immediate expulsion regardless of the willingness of the state. As Dzehtsiarou observed, ‘Russia was suspended as a result of aggression and gross violations of the values and principles of the organisation’ and therefore ‘the termination of membership should be imminent’.
These considerations were certainly taken into account in the Opinion of the Assembly. Arguably, the Committee went even further than the Opinion by ceasing Russia’s membership with immediate effect (ie without a ‘request’). Thus, Article 8 was fully dissociated from Article 7 and provided for the immediate expulsion from the organization. In doing so, the Council of Europe organs and the CM in particular emphasised that (i) this was clearly not a voluntary withdrawal but an expulsion (ii) the terms and timeframe of expulsion would be determined by the Council of Europe and not Russia.
The clear separation of Article 8 from Article 7 could also have implications for the difficult question of whether Russia is bound by the ECHR for the next six months (see Article 58 ECHR). Plausible arguments have been provided in both directions, and clearly this matter will be the subject of much discussion. Until a decision is made, one would be inclined to think that precisely because Article 8 was interpreted and applied in this way (i.e. immediate expulsion), the starting point would be that the ECHR ceased to apply on 16 March as well.
Russia’s exit from the Council of Europe (and from the European Convention on Human Rights, on which more generally see here and here) was an inevitable and necessary decision which has of course consequences, especially because, as the Council of Europe leaders acknowledged, it deprives the Russian people of access to the European Court of Human Rights (for a broader discussion see the aforementioned article, p. 467 et seq). But ultimately, in every step of this process, and in light of the seriousness of the violations of Article 3, it was the Council of Europe suspending, requesting to leave, and eventually expelling Russia. In this context, the full separation of Articles 7 and 8 is legally and politically significant.
The author would like to thank (with the usual disclaimer) Kanstantsin Dzehtsiarou and Kushtrim Istrefi for very helpful comments on earlier versions.
This article was first published on 17 March 2022 on the ECHR Blog and is reproduced on the ELR Blog with permission and thanks. The original piece can be accessed here.