To Europe or not to Europe, that's the question
Europe is not Europe. We hear all these “Europe” institution and law names, mixed up, and do not know what they stand for. An intermediary post highlighting what all those “Europe” bodies and laws are, and who is subject to them.
Both the Council of Europe and the European Union have a very similar flag and the same anthem. Both use each other's work to create legal instruments. The legislative work of both is supposed to be subsidiary to the OECD and the United Nations.
Groundwork for these had been started before the war. The war catalysed for the post war period willingness to ensure peace, human rights and prosperity.
| – | – | – | | United Nations | 24 October 1945 | is global | | OECD | 16 April 1948 | going global | | Council of Europe | 5 May 1949 | open to non EU parties and observers | | European Union | 1950 ~ 1 November 1993 | expanding within the EU continent |
| – | – | – | | European Court of Justice | 23 July 1952 | CoE parties | EU countries only | | European Court of Human Rights | 21 January 1959 ~ 1 November 1998 | any person against a CoE member state |
On the European continent, the importance, precedence, of legal instruments countries must respect is from highest to subsidiary:
Council of Europe (CoE)
It enacts laws and has a parliamentary assembly. The European Court of Human Rights (ECHR) is its court.
Member states are subject to the European Convention of Human Rights. They are supposed to become parties to any other CoE treaty as quickly as possible. Some countries (like Switzerland) are hard headed, using the CoE as a doormat to influence laws but not implement them. Even the CoE treaties they are party of (as per published on their federal web site) are violated at will.
The Council of Europe Treaty Series groups together all treaties concluded since 1949. Whether termed “agreement”, “convention”, “arrangement”, “charter”, or “code”, these texts are all international treaties in the sense of the 1969 Vienna Convention on the Law of Treaties.
The CoE is actually so explicit that:
texts (which) are not treaties in the meaning of the 1969 Vienna Convention on the Law of Treaties, (they) have been removed from the list of treaties
So really, member states have no excuse whatsoever. Once a party to a CoE convention, it takes full precedence over any national law.
The CoE also recognises being subject to the UN system:
All Council of Europe treaties are registered with the Secretariat of the UN within one month of entry into force.
And for rogue member states (like Switzerland) who love to object and read other member states on their shortcomings (through Declarations, Reservations and reports):
Under the regime of the Vienna Convention on the Law of Treaties, two competing requirements must be reconciled. On the one hand, it must be ensured that the relevant treaty provisions on reservations and declarations are respected. On the other hand, the depositary is in principle not entitled to decide on the admissibility or the legal effects of reservations and declarations.
And to make the point complete:
Party: Parties to a treaty are the States or the International Organisations, which have consented to be bound by the treaty and for which the treaty is in force (see Article 2 of the 1969 Vienna Convention on the Law of Treaties). Parties to European treaties may be the member States of the Council of Europe, non-member States or the European Community.
Non CoE member states can become observers and/or decide to become party to individual treaties. Both are welcome to take part in the drafting of treaties. You have an easy search tool on:
European Union (EU)
The EU is a supranational state-like union to which member states are subject. It functions somewhat like a federal state above 27 countries.
It enacts laws, treaties, declarations, ... and has a parliament. The European Court of Justice (ECJ) is its court.
There are a variety of instruments, some of which are automatic to all member states, and others needing to be translated to national law.
In order to hopefully avoid confusion with legislating organs holding similarity in names, herewith the four important ones of concern:
- European Council: the heads of state or government of the European Union Member States. Used to agree on political issues and public policy.
- Council of the European Union = EU Council = Council of Ministers: the cabinet ministers of the European Union Member States. Used to pass laws.
- European Commission: the executive body of the European Union.
- European Parliament: the directly elected by citizens of the European Union.
The European Union is no party to and as such not subject to the VCLT. It has an ongoing internal argument whether it should become a party to the convention or not, and whether its ECJ would always accept it.
Jurisprudence by the ECJ goes both ways, but particularly the other way when a EU legal instrument violates another international instrument.
The difficulty is that EU member states are obliged to submit to EU law. Period. There are sanctions if they do not.
It makes for the nutcase situation whereby the EU may (and does) enact laws which are contradicting UN and/or CoE and/or OECD instruments.
Which would you choose?
Member states find themselves obligated to submit to the EU version, risking sanctions or even exclusion from the EU of they do not. At the same time being party to the UN/CoE/OECD they should act in accordance to these higher ranked international instruments, whom do not have direct sanctions.
UN – no sanctions other then nagging, spanking and discrediting reports OECD – no sanctions other then discrediting reports and threat to be kicked out CoE – no sanctions other then through legal process before the ECHR EU – direct financial and legal sanctions in addition to the ECJ
It strikes me how a lower organ is given higher power and authority.
While in its jurisprudence the ECJ has never condemned against the CoE, OECD or UN when EU law did not say otherwise, it has condemned based on EU law when EU law contradicts other international instruments. It is all in the interpretation of Human Rights…
The next post is exactly about this tension between international instruments, reviewing CoE and EU whistleblower law, and some of the reasons why since the EU Whistleblower directive whistleblowers in Europe are worse off then before.
A lie gets halfway around the world before the truth has a chance to get its pants on. This blog gets the proverbial pants on!
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