On 18 September 2024, Alain Berset assumed the position of Secretary General of the Council of Europe (CoE), Europe’s oldest intergovernmental organisation representing 46 member states, for a five-year mandate. He was elected by the Parliamentary Assembly of the Council of Europe (PACE) on 25 June in the second round of voting having secured 114 votes from a total of 245 valid ballots. The other candidates were outgoing European Commissioner for Justice, Didier Reynders (Belgium) and prominent former member of the PACE, Indrek Saar (Estonia), who received 85 and 46 votes respectively. As former President of Switzerland, Mr Berset is the first former head of state to hold the position, as outgoing SG Marija Pejčinović Burić (Croatia) served as Deputy Prime Minister and Thorbjørn Jagland (Norway) served as Prime Minister/Head of Government.
In this piece, I briefly reflect on some of the pressing challenges Mr Berset faces as he takes up this new role, and explore whether this new mandate creates a renewed impetus for human rights protection in Europe.
What does the CoE SG actually do?
The SG is a Statutory institution with its main functions governed by the Treaty of London (CoE Statute). The SG is responsible to the Committee of Ministers for the work of the Secretariat (Art. 37), and as such the SG is the chief administrator, accounting officer and spokesperson for the organisation. S/he is the lynchpin between the Secretariat and the Committee of Ministers, responsible for implementing the programme and budget, and managing appropriations. In practice, this means operating at a politico-administrative level, engaging weekly with the Ministers’ Deputies (i.e. member state Ambassadors in Strasbourg), as well as regular engagements with political leaders in member state capitals, whilst simultaneously leading and coordinating the work of the almost 2,000-strong Secretariat in Strasbourg and its external offices. There is a “dotted-line” relationship between the SG and the PACE and Congress, and traditionally more dotted still when it comes to the relationship with the Commissioner for Human Rights despite these two office holders having significant potential to improve outcomes by working as appropriately closely together. The SG also maintains regular engagement with the President of the European Court of Human Rights, not least in the context of the supervision of the execution of Court judgments which is serviced by the Secretariat.
The Statute also defines the “exclusively international character” of the role, independent of national influence and interests. Importantly, the oath of office reinforces the SG’s duty to the Council of Europe, in other words its object and purpose. The function should therefore primarily driven by normative rather than political considerations, even if the SG necessarily operates in the political domain. Therein lies the SG’s most important challenge, striking a balance between exercising his “normative will” to advance the Council of Europe standards everywhere whilst not being servile to member state interests. Mr Berset must not be afraid to be a critical friend to all member states.
A cacophony of challenges ahead
Berset assumes office at a tumultuous time for the Council of Europe with war now well-established in Europe, rising normative belligerence and the future of European multilateralism increasingly uncertain. It is a time of diminishing returns for Europe’s human rights system where obligations are being routinely – even proudly – flouted by some, and apathy encroaching right across the Council of Europe area. Taboos of yesteryear such as rejecting the judgments of the European Court of Human Rights (ECtHR), no longer seem so intolerable.
Indeed, many eyes will be on how Mr Berset approaches the execution of the landmark Swiss climate case (Verein KlimaSeniorinnen Schweiz and Others v. Switzerland) in which the Court had found that Switzerland failed to deliver on its positive obligations under the ECHR concerning climate change, including from policy and regulatory perspectives, a judgment that Switzerland roundly rejects. Mr Berset is no longer responsible for Swiss public policy, indeed ECHR Article 46 § 2 provides that the Committee of Ministers, not the SG, supervises execution of judgments. Yet many will expect Berset to use his good offices to progress this issue. The stakes are high, as a refusal to execute by Switzerland will inspire others to adopt a laissez-faire approach to climate action rulings, thus undermining a critical body of jurisprudence in its infancy and further weakening the ECHR system.
It is, however, the war in Ukraine that is the most critical and urgent issue facing the new SG, even if it is the one he has least influence over. Russia’s aggression on Ukraine is ten years old this year and we are heading towards the third anniversary of the full-scale invasion which was launched in February 2022. This has had profound implications for the Council of Europe, primarily through the expulsion of Russia and the seismic policy reorientation of the organisation. The follow-up to Russia’s aggression will dominate the agenda for Berset’s term of office, from seeking to ensure the Council of Europe plays an effective role in the accountability process through the Register of damage established via an Enlarged Partial Agreement and, more significantly, if an ad hoc internationalised criminal tribunal for crime of aggression (and related crimes) is indeed established within the Council of Europe framework through a bilateral agreement with Ukraine complemented by an enlarged partial agreement. Eventually, consideration will also have to be given by the SG to how the Council of Europe reengages with Russia, its allies and apologists. Another aspect of the challenge facing the SG is how to ensure the focus peace and accountability in Ukraine does not diminish the Council of Europe’s focus on human rights, democracy and rule of law in Ukraine proper as well as elsewhere, including in the so-called “older” democracies, many of which are seeing growing political polarisation, rising intolerance and a shrinking space for consensus.
Then there is the question of Türkiye, which has steadily distanced itself from its membership obligations in particular since the failed coup of 2016. There are 139 leading judgments pending implementation by Türkiye, with an average time of leading cases pending at almost 8 years according to EIN. The case of Osman Kavala is of particular concern, as he has been deprived of his liberty since 18 October 2017 and remains in detention despite the Court’s unequivocal findings in the Kavala (Article 46 § 4) judgment. In June 2024, the Committee of Ministers noted that Türkiye remains “in serious breach of its obligations under the Convention,” which clearly leaves open the possibility of triggering a sanction procedure under Article 8 of the Statute unless Türkiye complies. The appetite for sanctions is almost nil at the level of Committee of Ministers, but what remains of the CoE’s credibility if it is not willing to stand decisively up for its values?
Türkiye’s brotherly ally Azerbaijan also represents a growing concern for the CoE. In January, PACE refused to ratify the credentials of the Azerbaijani delegation due to democratic backsliding across a range of areas from elections, to judicial independence to the situation of civil society. The detention of dissenting voices including from academia such as Bahruz Samadov compounds these concerns. Furthermore, it is one year since Azerbaijan’s final military assault on Nagorno-Karabakh resulted, de facto, in the ethnic cleansing of almost the entire Armenian population from the region and eliminated the possibility of a peaceful negotiated settlement to the conflict. This situation received a negligible response from the Committee of Ministers and the outgoing SG (by contrast PACE did respond), despite its importance not only for the South Caucasus, but for the integrity of the Council of Europe system more generally.
These are but a few of the more acute challenges, though there are many others, including the elusive accession by the EU to the ECHR, Kosovo’s possible integration as a full member if and, more likely, when the Committee of Ministers eventually votes in favour of its membership, and what is to become of treaties in decline, such as Convention 108.
Building Back Better
The Council of Europe has muddled through some strikingly difficult years, but it would be a mistake to think it is on a firm footing now, post-Reykjavik. Mr Berset’s central task is to rebuild the organisation as an effective and credible mechanism for European co-operation based on the Council of Europe’s values and standards. To do so, he has some tools in his toolbox.
He can capitalise on the CoE’s strengths including its elaborate acquis of standards, highly competent Secretariat (now adept at delivering in a context of perma-crisis), and can look forward to a series of largely supportive forthcoming Committee of Ministers’ chairmanships. This gives him the foundation he needs to drive forward a reform agenda which is not focussed on efficiency in the traditional econometric sense of the word, but on effectiveness as a normative consideration. This should include reflecting, comprehensively, on strategies that have failed in the past including in relation to Russia.
The fact that a Fourth Summit was convened in 2023 is significant, as it allows Berset to credibly advocate for another Summit to be held within his term of office. High-level Summits draw criticism for their pomp and grandeur, but they are the oxygen that sustains an intergovernmental organisation, and have been neglected by the Council of Europe for far too long. The opening for signature of the new Council of Europe Framework Convention on Artificial Intelligence and Human Rights, Democracy and the Rule of Law also provides him with momentum by demonstrating the CoE remains at the cutting edge of standards-setting and can provide member states a relevant, contemporary legal framework to support them in navigating emerging challenges.
Lastly, engagement with civil society is another significant opportunity for Mr Berset. Not only is this an avenue to democratise the CoE through transparency and partnership, it also presents a channel to deepen the knowledge of the CoE law and standards in member states. The Conference of INGOs, the CURE Campaign, EIN and the OCEAN network should be seen as partners for progress.
Conclusion
Alain Berset is an experienced and highly respected statesman, appreciated in Council of Europe capitals, who assumes office with credibility and legitimacy. However, one must avoid over-stating the power and influence of any Council of Europe SG. Like any mandate-holder, the SG is necessarily limited by the will of the member states. Nothing the SG does can force a member state into action. What matters is how the SG approaches the mandate, and anticipates and responds to developments in particular those that raise a human rights, democracy or rule of law concern. Many of the levers of progress are beyond his control, including how well resourced the member states, collectively, wish to see the CoE.
The new SG will bring new energy and can bring a new impetus to the system of human rights protection in Europe if he spearheads that drive. He must be a critical friend, proactive in leading multilateral and bilateral co-operation supports to member states, as well as specific tools to support Member States in the national implementation of the ECHR, but uncompromising in the execution of his normative will. Whether he is effective, only time will tell, but member states and wider civil society across Europe should be passionate in their support of his efforts, acting as a critical friend in their own right.
Alain Berset: The 15th Secretary General of the Council of Europe – A New Impetus for Human Rights in Europe?
Written by Andrew FordeOn 18 September 2024, Alain Berset assumed the position of Secretary General of the Council of Europe (CoE), Europe’s oldest intergovernmental organisation representing 46 member states, for a five-year mandate. He was elected by the Parliamentary Assembly of the Council of Europe (PACE) on 25 June in the second round of voting having secured 114 votes from a total of 245 valid ballots. The other candidates were outgoing European Commissioner for Justice, Didier Reynders (Belgium) and prominent former member of the PACE, Indrek Saar (Estonia), who received 85 and 46 votes respectively. As former President of Switzerland, Mr Berset is the first former head of state to hold the position, as outgoing SG Marija Pejčinović Burić (Croatia) served as Deputy Prime Minister and Thorbjørn Jagland (Norway) served as Prime Minister/Head of Government.
In this piece, I briefly reflect on some of the pressing challenges Mr Berset faces as he takes up this new role, and explore whether this new mandate creates a renewed impetus for human rights protection in Europe.
What does the CoE SG actually do?
The SG is a Statutory institution with its main functions governed by the Treaty of London (CoE Statute). The SG is responsible to the Committee of Ministers for the work of the Secretariat (Art. 37), and as such the SG is the chief administrator, accounting officer and spokesperson for the organisation. S/he is the lynchpin between the Secretariat and the Committee of Ministers, responsible for implementing the programme and budget, and managing appropriations. In practice, this means operating at a politico-administrative level, engaging weekly with the Ministers’ Deputies (i.e. member state Ambassadors in Strasbourg), as well as regular engagements with political leaders in member state capitals, whilst simultaneously leading and coordinating the work of the almost 2,000-strong Secretariat in Strasbourg and its external offices. There is a “dotted-line” relationship between the SG and the PACE and Congress, and traditionally more dotted still when it comes to the relationship with the Commissioner for Human Rights despite these two office holders having significant potential to improve outcomes by working as appropriately closely together. The SG also maintains regular engagement with the President of the European Court of Human Rights, not least in the context of the supervision of the execution of Court judgments which is serviced by the Secretariat.
The Statute also defines the “exclusively international character” of the role, independent of national influence and interests. Importantly, the oath of office reinforces the SG’s duty to the Council of Europe, in other words its object and purpose. The function should therefore primarily driven by normative rather than political considerations, even if the SG necessarily operates in the political domain. Therein lies the SG’s most important challenge, striking a balance between exercising his “normative will” to advance the Council of Europe standards everywhere whilst not being servile to member state interests. Mr Berset must not be afraid to be a critical friend to all member states.
A cacophony of challenges ahead
Berset assumes office at a tumultuous time for the Council of Europe with war now well-established in Europe, rising normative belligerence and the future of European multilateralism increasingly uncertain. It is a time of diminishing returns for Europe’s human rights system where obligations are being routinely – even proudly – flouted by some, and apathy encroaching right across the Council of Europe area. Taboos of yesteryear such as rejecting the judgments of the European Court of Human Rights (ECtHR), no longer seem so intolerable.
Indeed, many eyes will be on how Mr Berset approaches the execution of the landmark Swiss climate case (Verein KlimaSeniorinnen Schweiz and Others v. Switzerland) in which the Court had found that Switzerland failed to deliver on its positive obligations under the ECHR concerning climate change, including from policy and regulatory perspectives, a judgment that Switzerland roundly rejects. Mr Berset is no longer responsible for Swiss public policy, indeed ECHR Article 46 § 2 provides that the Committee of Ministers, not the SG, supervises execution of judgments. Yet many will expect Berset to use his good offices to progress this issue. The stakes are high, as a refusal to execute by Switzerland will inspire others to adopt a laissez-faire approach to climate action rulings, thus undermining a critical body of jurisprudence in its infancy and further weakening the ECHR system.
It is, however, the war in Ukraine that is the most critical and urgent issue facing the new SG, even if it is the one he has least influence over. Russia’s aggression on Ukraine is ten years old this year and we are heading towards the third anniversary of the full-scale invasion which was launched in February 2022. This has had profound implications for the Council of Europe, primarily through the expulsion of Russia and the seismic policy reorientation of the organisation. The follow-up to Russia’s aggression will dominate the agenda for Berset’s term of office, from seeking to ensure the Council of Europe plays an effective role in the accountability process through the Register of damage established via an Enlarged Partial Agreement and, more significantly, if an ad hoc internationalised criminal tribunal for crime of aggression (and related crimes) is indeed established within the Council of Europe framework through a bilateral agreement with Ukraine complemented by an enlarged partial agreement. Eventually, consideration will also have to be given by the SG to how the Council of Europe reengages with Russia, its allies and apologists. Another aspect of the challenge facing the SG is how to ensure the focus peace and accountability in Ukraine does not diminish the Council of Europe’s focus on human rights, democracy and rule of law in Ukraine proper as well as elsewhere, including in the so-called “older” democracies, many of which are seeing growing political polarisation, rising intolerance and a shrinking space for consensus.
Then there is the question of Türkiye, which has steadily distanced itself from its membership obligations in particular since the failed coup of 2016. There are 139 leading judgments pending implementation by Türkiye, with an average time of leading cases pending at almost 8 years according to EIN. The case of Osman Kavala is of particular concern, as he has been deprived of his liberty since 18 October 2017 and remains in detention despite the Court’s unequivocal findings in the Kavala (Article 46 § 4) judgment. In June 2024, the Committee of Ministers noted that Türkiye remains “in serious breach of its obligations under the Convention,” which clearly leaves open the possibility of triggering a sanction procedure under Article 8 of the Statute unless Türkiye complies. The appetite for sanctions is almost nil at the level of Committee of Ministers, but what remains of the CoE’s credibility if it is not willing to stand decisively up for its values?
Türkiye’s brotherly ally Azerbaijan also represents a growing concern for the CoE. In January, PACE refused to ratify the credentials of the Azerbaijani delegation due to democratic backsliding across a range of areas from elections, to judicial independence to the situation of civil society. The detention of dissenting voices including from academia such as Bahruz Samadov compounds these concerns. Furthermore, it is one year since Azerbaijan’s final military assault on Nagorno-Karabakh resulted, de facto, in the ethnic cleansing of almost the entire Armenian population from the region and eliminated the possibility of a peaceful negotiated settlement to the conflict. This situation received a negligible response from the Committee of Ministers and the outgoing SG (by contrast PACE did respond), despite its importance not only for the South Caucasus, but for the integrity of the Council of Europe system more generally.
These are but a few of the more acute challenges, though there are many others, including the elusive accession by the EU to the ECHR, Kosovo’s possible integration as a full member if and, more likely, when the Committee of Ministers eventually votes in favour of its membership, and what is to become of treaties in decline, such as Convention 108.
Building Back Better
The Council of Europe has muddled through some strikingly difficult years, but it would be a mistake to think it is on a firm footing now, post-Reykjavik. Mr Berset’s central task is to rebuild the organisation as an effective and credible mechanism for European co-operation based on the Council of Europe’s values and standards. To do so, he has some tools in his toolbox.
He can capitalise on the CoE’s strengths including its elaborate acquis of standards, highly competent Secretariat (now adept at delivering in a context of perma-crisis), and can look forward to a series of largely supportive forthcoming Committee of Ministers’ chairmanships. This gives him the foundation he needs to drive forward a reform agenda which is not focussed on efficiency in the traditional econometric sense of the word, but on effectiveness as a normative consideration. This should include reflecting, comprehensively, on strategies that have failed in the past including in relation to Russia.
The fact that a Fourth Summit was convened in 2023 is significant, as it allows Berset to credibly advocate for another Summit to be held within his term of office. High-level Summits draw criticism for their pomp and grandeur, but they are the oxygen that sustains an intergovernmental organisation, and have been neglected by the Council of Europe for far too long. The opening for signature of the new Council of Europe Framework Convention on Artificial Intelligence and Human Rights, Democracy and the Rule of Law also provides him with momentum by demonstrating the CoE remains at the cutting edge of standards-setting and can provide member states a relevant, contemporary legal framework to support them in navigating emerging challenges.
Lastly, engagement with civil society is another significant opportunity for Mr Berset. Not only is this an avenue to democratise the CoE through transparency and partnership, it also presents a channel to deepen the knowledge of the CoE law and standards in member states. The Conference of INGOs, the CURE Campaign, EIN and the OCEAN network should be seen as partners for progress.
Conclusion
Alain Berset is an experienced and highly respected statesman, appreciated in Council of Europe capitals, who assumes office with credibility and legitimacy. However, one must avoid over-stating the power and influence of any Council of Europe SG. Like any mandate-holder, the SG is necessarily limited by the will of the member states. Nothing the SG does can force a member state into action. What matters is how the SG approaches the mandate, and anticipates and responds to developments in particular those that raise a human rights, democracy or rule of law concern. Many of the levers of progress are beyond his control, including how well resourced the member states, collectively, wish to see the CoE.
The new SG will bring new energy and can bring a new impetus to the system of human rights protection in Europe if he spearheads that drive. He must be a critical friend, proactive in leading multilateral and bilateral co-operation supports to member states, as well as specific tools to support Member States in the national implementation of the ECHR, but uncompromising in the execution of his normative will. Whether he is effective, only time will tell, but member states and wider civil society across Europe should be passionate in their support of his efforts, acting as a critical friend in their own right.
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