The negotiations on the European Union’s accession to the ECHR have resumed

A couple of weeks ago, between June 19 and 22, the Council of Europe’s Steering Committee for Human Rights (french acronym: CDDH) held its 75^th meeting. Two topics of particular interest for the MultiRights project were key points on the agenda: the follow-up of the Brighton declaration, and the European Union’s accession to the ECHR. As the title already suggests, this blog post will deal with only the fact that negotiations on the latter has in fact restarted.

(Originally posted on the MultiRights blog 21 June 2012. Click here to view the original post.)

A new “ad hoc group”

The report from the 75^th meeting gives us at least some insight into both the status of the negotiations and the road ahead.¹ First, acting upon instructions from the Committee of Ministers,² the CDDH agreed to restart the negotiations on the Union’s accession “in an ad hoc group” consisting of the 47 member states of the Council of Europe and the EU Commission (the 47+1).³ Their mandate is to finalize the legal instruments setting out the modalities of the Union’s accession to the ECHR.⁴

Second, the CDDH authorized the new “ad hoc group” to report directly to the Committee of Ministers’ Deputies on “interim matters”.⁵ Any final text adopted by the “ad hoc group” is nevertheless to be “submitted first to an ordinary meeting of the CDDH”.⁶ Thus, there seems to be no room for an extraordinary meeting on the final draft, as was done in October 2011 with what was then supposed to be a final draft.⁷ This might slow down the process somewhat, as the CDDH only holds ordinary meetings twice a year.

Finally, the CDDH laid down some “practical arrangements required for the functioning of the group”.⁸ Here we find the most important bits of information on the status of the negotiations and the road ahead. The CDDH decided to configure the “ad hoc group” in a similar fashion to the Informal Working Group on the Union’s Accession to the ECHR (CDDH-UE), which handled the first stage of the negotiations in 2010–2011.⁹

This entails that the presence of observers is limited to the representatives of the Registry of the European Court of Human Rights and of the Committee of Legal Advisers on Public International Law. Moreover, the CDDH noted that a “certain degree of publicity and of participation of civil society during the negotiation would be desirable”.¹⁰ The access to documents will hopefully be at least as good as during the negotiations in the CDDH-UE, due to the significant importance of the Union’s accession. The “ad hoc group” also inherits the Chairperson from the CDDH-UE; Tonje Meinich.

The main difference between the “ad hoc group” and the CDDH-UE is its composition. The “ad hoc group” will include all 47 Council of Europe member states, while the CDDH-UE only included experts from 14 member states sitting in private capacity.¹¹ That all stakeholder will now be sitting at the same table should ensure that the text adopted by this group will indeed be final – and not be subjected to another round of negotiations.

As for the meeting plan, it is apparent that the parties are still aiming for a rapid pace. The first meeting of the “ad hoc group” has in fact already been held – “in the margins of the CDDH meeting”.¹² The report from that meeting indicates that the draft legal instruments that were transmitted to the Committee of Ministers¹³ last year is to be used “as a basis for future discussion”.¹⁴ As for the order of discussion, the delegations agreed to first focus on “questions related to the scope of the accession and on other general issues”, then on the co-respondent mechanism, and finally on the institutional questions.

Those parties who wish to suggest changes to the draft Accession Agreement, as finalized last year, are invited to do so by 1 September 2012.¹⁵ The next two meetings for the 47+1 ad hoc group are planned for 17–19 September and 7–9 October, thus lasting three full days each.¹⁶

Scope of the (re-)negotiations

It is nearly impossible to predict how much time is needed for the parties to reach agreement on a final text. The scope of the negotiations in this second round – i.e. the number of items still to be discussed – would probably be the best basis for an educated guess. However, due to the lack of document transparency in the Council of the European Union,¹⁷ it is not known exactly which parts of the draft Accession Agreement that the Union and its member states want to amend. Documents leaked during the internal EU negotiations reveals some suggested amendments, but it is quite unclear which of those the EU member states have agreed to put forward in this second round of negotiations.¹⁸

Maybe the most surprising part of the entire CDDH meeting report is the Russian response to the EU countries second round of negotiations. In a statement attached to the meeting report¹⁹ the Russian representative strongly emphasizes the importance that the Union accedes to the Convention on an equal footing with other contracting parties, with due regard to the EU specificities. As for how to balance the principle of equal footing with the need to cater for the specificities of the Union’s legal order, Russia seems to prefer the solutions laid down in the 2011 final draft:

“From our point of view the draft of the Working Group respected this principle.

[…]

It was difficult to reach consensus on all these basic elements, but we would like to say that it had been reached, and that all sides made compromises to reach it. For the Russian Federation, certain elements were very difficult, but we decided to agree to them.

Now, because of the internal problems of the EU, we have received amendments from our European Union colleagues. We are going to study them with great care. But the fact is these amendments reopen the agreed draft. Therefore, we will look at the EU proposals having in mind that we will also have the right to present our own amendments to the draft that was agreed by the CDDH Working Group, as well as to the documents circulated by the EU. We assume that our possible proposals will have the same status as the draft amendments proposed by the EU. We hope as well that future negotiations will really be negotiations between 47 individual member States and the European Commission and not between a «European Union block» and those who are not members of the European Union.”²⁰

This statement is interesting for several reasons. Firstly, it gives an insight into what the non-EU member states in the Council of Europe see as crucial aspects of the accession negotiations. To my knowledge this is the only public statement from a non-EU member on how the accession perceived.

Secondly, while it is reassuring to see that also the important non-EU members are in favor of accession and support the “equal footing” principle, Russia’s statement may be read as a threat against the EU countries. Any broad amendment suggestions from them may lead to further negotiations on other parts of the agreement – which in turn could delay the entire process considerably. Russia’s motivation here is uncertain. Is this meant as a warning against attempts fro the EU countries to undermine the balance struck between the principle of equal footing and the Union’s specialness? Or is there a sense that the EU member states backed out of an already agreed draft, and have thus not been playing by the book?

Finally, the Russian representative makes it clear that they wish for a negotiation between 48 equals (the 47+1), and not between the EU block (27+1) on the one hand, and the 20 non-EU member states in the Council of Europe, on the other. His hopes in this regards are very likely to be crushed. The entire point of the internal EU negotiations was to coordinate the positions of the 27 member states, as they are obliged to do under article 24 of the Treaty on European Union. Moreover, documents from the Council of the European Union suggest that this second round of negotiations will in practice be lead by the Commission – representing both the interests of the Union and its 27 member states.²¹

Conclusion

As this brief article shows, there is much to be excited about this fall for those who are following the negotiations closely. We at MultiRights are eagerly awaiting the resumed negotiations, and will contine reporting on them here.

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