Tuesday, 18 May 2010

The EU's accession to the European Convention on Human Rights: Draft Council Decision

Well, I'd like to report the details of the
Draft Council Decision authorising the Commission to negotiate the Accession Agreement of the European Union to the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR)
but the Council has decided that this draft is not for the public, although the EU's accession to the ECHR is of constitutional importance for the Union (since it is prescribed by the EU Treaties) and although it is highly relevant for every EU citizen (since the ECHR guarantees individual rights and allows individual complaints).

But apparently the public is not supposed to know what the Council plans to decide and it prefers to discuss the rights of EU citizens behind closed doors.

13 comments:

Grahnlaw said...

Julien,

You are right. This is ridiculous.

Anonymous said...

It is not ridiculous. In fact it is logical.

This (draft)document is about authorising the Commission to negiotate!!
It is not very smart when the Council of Europe can read this information before the negotiation is finished!

Julien Frisch said...

@anonymous

And you don't think that the Council of Europe won't get that document via other channels anyway…?

Nevertheless, these are negotiations about our human rights and the Council of Europe and the EU should value them alike, so why shouldn't this be a public process after all?

Grahnlaw said...

Anonymous,

It is logical if your paradigm is adversarial and you see the Council embedded in the traditions of diplomacy, not as an (imperfect) expression of democratic decision making.

martinned said...

@Grahnlaw: Actually, that's not entirely correct. The negotiation between the Commission and the Council of Europe is certainly a matter of diplomacy, regardless of how one views the Council.

Grahnlaw said...

martinned,

Old habits die hard.

martinned said...

Julien Frisch said...

And you don't think that the Council of Europe won't get that document via other channels anyway…?


I don't think we should consider the fact that a document has already been leaked or is likely to be leaked as a factor in deciding whether to make it public. Leaking is bad enough without any kind of official endorsement of the practice.

Nevertheless, these are negotiations about our human rights and the Council of Europe and the EU should value them alike, so why shouldn't this be a public process after all?

Actually, no. The negotiations are not about human rights. The human rights are pretty much fixed, although I guess there might be a question of the EU not ratifying all the protocols. (Just yesterday I discovered to my surprise that Germany, Belgium and the Netherlands have not ratified protocol 7, which contains the ne bis in idem principle, amongst other things.)

The negotiations are mostly about the institutional setup, which is potentially a legal nightmare, given the high degree of monism laid down in art. 216(2) TFEU. Given that not all MS have such a system, there is a risk that certain cases will end up being routed via Luxembourg to Strasbourg, in order to give them extra umph.

And that's just one thing (albeit the one that's most interesting). The negotiation is also about money (the CoE budget), about the EU's involvement in PACE and other CoE bodies and activities, etc.

This is very much a diplomatic issue, and one that is properly treated with a degree of secrecy.

martinned said...

@Grahnlaw: Whose habits? Yours, mine, the Council's or someone else's?

Grahnlaw said...

martinned,

The Council's and yours, by association, to exclude the 'vulgus' on an array of grounds.

Do you think there is any correlation between the practices of the member state governments in the Council and the estrangement felt (and sometimes expressed) by EU citizens?

martinned said...

@Grahnlaw: I think the question here is distinct from the question of Council transparency in general. I think that this here is a genuine international negotiation, similar to WTO or ACTA negotiations. In such a setting, it is unwise for the EU institutions to be more transparent about their negotiating stance than strictly necessary.

But since you asked, I think the most important way the Council's legitimacy can be improved is not through more transparency. The EU's approach to transparency already involves publishing way too many documents that nobody reads. (Except people like me and you, who get paid to do so.) In order for the Council to work, they need to be on a tighter leash vis-à-vis their home constituencies, which is usually the national parliament. To do so, national parliamentarians need to have access to documents like this one. But that is not the same as making them accessible to the general public as well.

Grahnlaw said...

martinned,

Thank you for expressing your distrust in the public (you are supposed to serve) in such clear and unambiguous terms.

Niels Frenzen said...

I am not sure if the document has come out through other means yet, but here is the denial received today, 8 June, of my request for access. -Niels Frenzen

"[***] Document 9689/10 (classified RESTREINT UE) is a note from the Presidency to delegations concerning a draft Council Decision authorising the Commission to negotiate the Accession Agreement of the European Union to the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR). The classification RESTREINT UE is applied to information and material the unauthorised disclosure of which could be disadvantageous to the interests of the European Union or of one or more of its Member States .

This document relates to an issue which is still under discussion within the Council.
The General Secretariat has weighed your interest in being informed of progress in this area against the general interest that progress be made in an area that is still the subject of negotiations.

It considers that disclosure of this document would be premature in that it could impede the proper conduct of the negotiations and compromise the conclusion of an agreement on this subject. As there is no evidence suggesting an overriding public interest to warrant disclosure of the document in question, the General Secretariat has concluded that protection of the decision-making process outweighs the public interest in disclosure. Accordingly, pursuant to Article 4(3), first subparagraph, of the Regulation (protection of the Council's decision-making process), the General Secretariat is unable to accede to your request for access. [***]

Yours sincerely,
For the General Secretariat
Jakob Thomsen"

Julien Frisch said...

Dear Nils,

thanks for the info!