Strasbourg, 18 January 2013 CDLR-Bu(2013)11
Item E.2 of the agenda
BUREAU OF THE
EUROPEAN COMMITTEE ON LOCAL AND REGIONAL DEMOCRACY
(CDLR)
AWARENESS-RAISING OF THE HUMAN RIGHTS DIMENSION OF LOCAL AND REGIONAL GOVERNANCE
Secretariat Memorandum
prepared by the
Directorate of Democratic Governance
Democratic Institutions and Governance Department
 |
Introduction
At the 1156th meeting of the Deputies, the Committee of Ministers adopted a fresh set of decisions in pursuance of the Kyiv Declaration. Among the new activities assigned to the CDLR in this context, it is asked “to prepare proposals to strengthen awareness raising of the human rights dimension of local and regional governance, in consultation with the Parliamentary Assembly, the Congress of Local and Regional Authorities of the Council of Europe and the Conference of INGOs”.
The protection of human rights provided by the Council of Europe, in accordance with international law, is generally accepted to extend to only two types of relevant actors: states and individuals. Human rights are guaranteed in the form of treaties between states with a focus on protecting the basic rights of the individual human being. As a matter of international law, the state is in this respect the only entity of legal relevance and its institutional arrangements are to be considered a matter of its own sovereign power. It is for this reason that only states can be held to account before the European Court of Human Rights.
However, within a state several actors may be entrusted with powers and functions the exercise of which have an impact on the actual enjoyment of fundamental human rights by individuals. Local authorities, in the light of the principle of subsidiarity, are at the forefront of policy delivery with regard inter alia to participation, education, health care, housing and social inclusion. As a result, this topic is of particular interest to the CDLR for two principal reasons. Firstly, local and regional authorities should be aware of the importance of their role in ensuring the enjoyment of fundamental human rights by those that fall under their “jurisdiction” (because their failure to “deliver” might entail the international responsibility of the state). Secondly, ministries responsible for local and regional government should reflect on the potential implications and consequences of these obligations on their relationships with local and regional authorities and with other government departments.
Following these reflections there is clearly a link between human rights (at local and regional level) and the infra-state arrangements (between tiers of government) in the field of human right policies with a view to promoting a “governance” model that cuts across government and spreads awareness of and responsibilities for human rights.
In the light of the debates held in Kyiv, and following on the Ministers’ own conclusions, the Committee of Ministers asked the CDLR to prepare proposals to strengthen awareness of the human rights dimension at local level, in cooperation with the Congress, the Parliamentary Assembly and the Conference of INGOs.
The following could be suggested at this stage:
- To prepare or commission the preparation of a document on current ECHR case law arising from local authority action, and to collect information on other institutional actors whose work is relevant for the promotion of human rights at local level[1];
- To identify, with the assistance of the two CDLR rapporteurs on human rights[2], institutional weak spots in human rights implementation at the local level, for example, in planning and development, and in daily operations;
- To make proposals to the plenary meeting of the CDLR in April with a view to drawing up a specific “awareness raising package”.
Once approved by the CDLR in April, the “awareness raising package” should be discussed with the Congress, the Parliamentary Assembly and the Conference of INGOs. In the light of the comments received, a formal draft “package” would be drafted - still with the assistance of the two rapporteurs – and considered by the Bureau before being debated in and approved by the CDLR at its second meeting of the year.
Action required
The Bureau is invited to comment and give instructions to the Secretariat on the proposed initiatives to strengthen awareness-raising of the human rights dimension of local and regional governance.
Appendix I
Human rights at local level[3]
REPORT by the CDLR Rapporteur[4]
Introduction
It is recalled that the current attention to the issue of human rights at local level in the CDLR was initiated by the request from the Ministers Deputies to provide possible comments on Congress Recommendation 280 (2010) on the Role of local and regional authorities in the implementation of human rights. The CDLR adopted its comments in October 2010 and agreed to add the issue of the human rights at local level to the draft agenda of the 17th session of the Ministerial Conference.
This report has been drawn up by the CDLR Rapporteur to provide a basis for the CDLR at its meeting in September 2011 to prepare the discussion of human rights at local level at the 17th session of the Ministerial Conference on 3-4 November 2011 in Kyiv.
The protection of human rights is, of course, core business for the Council of Europe. The report aims both to provide some analytical elements on the specific topic of human rights at local level as well as to take a more operational perspective on the work that could usefully be done through the bodies of the Council of Europe, intergovernmental and other.
Given that the ministers responsible for local and regional government have competences encompassing responsibility for the legal framework, institutional structure, financing and supervision of local and regional government, it is clear they have an important role to play in the issue of “human rights at local level” at domestic level and also, should the Committee of Ministers so wish, at Council of Europe level.
As regards other Council of Europe bodies, notably the Parliamentary Assembly, the Congress and the Conference of International NGOs, it must of course be underlined that they themselves, within the limits of the Statute and Committee of Ministers Resolutions, set their (political) agenda and decide the activities they undertake. This is only different in as far as monitoring is concerned, where the Congress has a specific mandate in respect of the European Charter of Local Self-Government, but no wider or other mandate. It is thus understood by all that the Congress cannot and does not intend to monitor, or on its monitoring visits to assess, the implementation of human rights by local and regional authorities and that it will not duplicate the activities of Council of Europe monitoring bodies.
Before going into the more operational aspects of possible further work on human rights at local level, it is useful to recall some important legal and institutional aspects of the question of human rights at local level.
I. Legal and institutional aspects of human rights at local level
The question of human rights at local level touches on two important areas of work of the Council of Europe, both of which are at the heart of its mission. As in the field of human rights, the Council of Europe has developed an important pan-European “acquis” on local and regional government and it could therefore be said that the challenge of “human rights at local level” is to put into perspective these two important strands of work[5].
Though it could be thought surprising, it is nonetheless true that even today the issue of human rights at local level is still to a considerable extent a “terra incognita” for many of the 800 million Europeans, their local authorities and governments. Surprising, because, after all, it is so obvious that ensuring the day-to-day enjoyment of human rights depends strongly on the actions of local and regional authorities. It is through local and regional authorities that the great majority of public services are delivered and many of these public services are in fact essential for giving everyday meaning to human rights. One may think of housing, health-care, as well as education, policing and the conclusion of marriages to give but a few examples. Inversely, it is very difficult to imagine a situation of human rights being ensured and enjoyed where there are no local and regional authorities to provide the necessary services.
However, if one looks at the legal protection of human rights as provided by the Council of Europe, only two types of actors appear to be of relevance: states and individuals. Firstly, human rights are guaranteed in the form of treaties between states and secondly the principal object these treaties aim to protect is, albeit in different ways and notwithstanding also the existence of some collective rights, the individual human being.
The centre-piece of the pan-European legal acquis in the field of human rights is without doubt the European Convention on Human Rights to which all 47 member States of the Council of Europe are party. This convention and its protocols protect the civil and political rights of the individual, rights such as the right to life, the freedoms of expression and association, the right to a fair trial, the prohibition of torture and of the death-penalty and non-discrimination. It also includes the obligation for states to hold free elections at reasonable intervals by secret ballot, under conditions that will ensure the free expression of the opinion of the people in the choice of the legislature.
Furthermore, all states have recognised the jurisdiction of the European Court of Human Rights to hear and decide cases brought by individuals asserting that their human rights have been violated. The status of this convention as a pan–European cornerstone for the protection of human rights, the rule of law and democracy will be further enhanced when the European Union accedes to this instrument, a development currently actively pursued.
Of course, the Council of Europe’s acquis on human rights is not limited to the ECHR but extends to the field of social and economic rights as laid down in the European Social Charter, as well as to the rights of persons belonging to national minorities provided for in the Framework Convention for the Protection of National Minorities. Another instrument less often mentioned in this context but important nonetheless, is the Convention for the participation of foreigners in public life at local level and for which the CDLR has a particular responsibility.
As said before, we must remember that international human rights are guaranteed by international treaties between states, and only states. This fact goes a long way to explaining the reasons why the role of local and regional authorities in the field of human rights has not yet been examined in depth from an international perspective. As a matter of international law, the state is one single entity and its internal administrative divisions a matter of its own sovereign power. It is for this reason that only states can be held to account before the European Court of Human Rights, only states are obliged to submit reports under the Social Charter, the Framework Convention and other international treaties and only states can be the subject of collective complaints under the Social Charter. Furthermore, it is well established as a matter of law that a state appearing before the Court of Human Rights cannot defend itself by claiming that a violation was committed by a local or regional authority. The state, as represented by the central government, is held liable under international law for the acts of all parts and levels of that state. Equally, a state cannot successfully defend itself before the European Court of Human Rights by arguing that the issues which are being complained about are as a matter of national or constitutional law outside its competence.
Thus, broadly speaking, the approach of international human rights law is that the institutional arrangements between different levels of government within a state are largely irrelevant. The individual’s rights are to be protected, against or by which part of the state is not to the point. Clearly, this approach easily combines with the rule of international law that leaves the division of competences between different levels of government to the state’s sovereign decision.
Should that approach be called into question?
Before trying to formulate an answer to this question, it is, having looked at human rights, time to examine a little more closely local and regional government, an area where the Council of Europe also has a considerable acquis.
As concerns local government, the Council of Europe’s main standards are set out in the European Charter of Local Self-Government. The core concept in that instrument is the concept of local self-government, defined as follows:
“Local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population.” (Article 3 paragraph 1).
By providing that local authorities must have “a substantial share of public affairs under their own responsibility” the Charter ensures that notably central government (but the same may apply to higher regional authorities) may not limit the role of local authorities to mere executors of the decisions taken and policies elaborated without them. Of course, the degree and extent of competences entrusted to local authorities may and indeed does vary across Europe, also because of entirely objective factors such as the size of local authorities.
The Charter further provides, in Article 3 paragraph 3:
“Public responsibilities shall generally be exercised, in preference, by those authorities who are closest to the citizen. Allocation of responsibilities to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy."
Thus, the Charter in fact sets out the principle of subsidiarity. As the level closest to the citizens, local authorities are deemed to be best able to respond to the needs and priorities of the population, unless the size or nature of the task is such that it requires to be treated within a larger territorial area or there are overriding considerations of efficiency or economy.
In light of what was highlighted above, namely that as a matter of international law the institutional arrangements between different levels of government within a state are the sovereign domain of that state, it is easy to see the fundamental importance of the Charter’s provisions, because they actually do limit this sovereign freedom by the principle of local self-government and the principle of subsidiarity.
The question is now whether these principles have any bearing on the issue of human rights. So far we have seen that in legal terms the issue of local self-government has not been developed looking at the issue of human rights and that the protection of human rights has been developed without regard for the question of division of competences between different levels of government. Can it be that, upon reflection, these two simply have nothing to do with each other?
Let us have a closer look, by examining the role of the state. What is the role of the state in the field of human rights? Here we have to recognise the two possible faces of the state: the role of protector of human rights and the role of possible perpetrator of human rights violations. The law of human rights both poses prohibitions on the state in the way it conducts public affairs and imposes duties on the state to take measures in order to make the enjoyment of human rights possible. The state is not allowed to resort to torture or to abolish the freedom of expression, whilst it must also ensure there is a functioning judiciary, a system of education, a system of health care, protection against discrimination and so forth.
As regards the role of local authorities, it may be assumed that nobody would seek to argue that, as part of their right “to regulate and administer a substantial share of public affairs under their own responsibility”, local authorities should have the right to introduce torture as a practice, to suppress the freedom of expression or to introduce the death penalty. Such things have been outlawed and there is no reason why local and regional authorities should not conform to this.
In passing, it may be noted that there may be particularly thorny legal questions in the context of a federal state to ensure the respect of such minimum standards of human rights where, according to the constitution, the policy area concerned is under the exclusive competence of local or regional authorities. This is a question that may also need to be examined.
However, it is suggested that the main role of local and regional authorities comes out not when thinking of them as potential perpetrators of human rights violations, but when looking at all those measures that states, as a result of their international obligations, need to take in order to ensure the enjoyment of human rights, or what we would legally call positive obligations.
Such positive obligations arise from all the Council of Europe’s human rights instruments and it is these obligations that underlie, even though this is not explicitly recognised, very many of the functions and services provided by the state in general and by local and regional authorities in particular. This is also the area where there is most state discretion: international standards prohibit torture in all cases, but do not specify exactly the level of health care to be given, exactly what types and levels of language education should be provided, or the type of housing that is to be offered. It is therefore here that the actual enjoyment of human rights is most dependent on the efforts and choices made and it is here that for local and regional authorities “regulating and managing a substantial share of public affairs under their own responsibility” has most meaning. After all, it is they who are at the front-line of providing the great majority of public services in our member States. It is probably here that the connection between human rights and local and regional administration is clearest and strongest.
From the above it also follows that the ministers responsible for local and regional government with a remit encompassing the legal framework, institutional structure, financing and supervision of local and regional government have an important role to play in the issue of “human rights at local level”.
It is also clear that, to answer the question raised above, there is no need to change the approach of international human rights law in order to recognise a role for local and regional government in the field of human rights.
Following these more legal and institutional reflections, it is time to turn to the operational perspective
II. Human rights at local level – what is to be done by the Council of Europe?
The paragraphs above demonstrate clearly the link between human rights and local and regional (self-) government. It also shows that at the level of the individual state, local and regional authorities as well as ministers responsible for local and regional government have an important role to play. Indeed, as always it is at domestic level that the main work has to be done.
So what then of the role of the Council of Europe?
As set out in the introduction, the starting point for reflection must be that the various Council of Europe bodies decide for themselves if and what attention to give to the question of human rights at local level and how to go about it. Furthermore, it is clearly understood that the range of possible activities does not include monitoring or assessment of the implementation of human rights by local and regional authorities nor duplication of the activities of Council of Europe monitoring bodies.
What should be done by the intergovernmental sector? That question, the rapporteur suggests, should be discussed by Ministers at the 17th session of the Ministerial Conference in Kyiv. Indeed, that would be the central question for them to address under that item on the agenda and their discussions could result in recommendations to the Committee of Ministers.
In that approach it would be essential, of course, for Ministers to have at their disposal relevant information, notably concerning what has and is already being done in the area.
Without aiming to present an exhaustive list, it is suggested that Ministers attention should be drawn to the following:
1. As concerns the development of new standards, a draft for a Recommendation and Declaration by the Committee of Ministers on principles of good governance at local level were approved by the CDLR and sent to the Committee of Ministers for adoption. These principles crucially include as one of them “Human rights, cultural diversity and social cohesion”.
At Kyiv Ministers could, depending on developments, welcome their adoption, or encourage the Committee of Ministers to adopt them.
The Ministers at their 15th session in Valencia launched the Strategy for Innovation and Good Governance at local level, based on the principles of good governance at local level which are at the heart of the texts mentioned above.
Ministers could be given a presentation by one of the first cities in Europe to receive the European Level for Governance Excellence on the way this principle has been benchmarked in practice.
3. The Congress could be invited to provide information and make a presentation of its work on “the new local dimension of human rights”, including on its most recent report on human rights indicators which is currently still being prepared.
4. Ministers could be given a presentation of the joint action of the Council of Europe and the European Commission on Intercultural Cities.
5. Ministers could also be given a presentation by the Fundamental Rights Agency of the European Union on the projects it is carrying out concerning human rights at local level.
6. Finally, it is suggested that to consider the question of possible follow-up to Congress Recommendation 280.
In this Recommendation the Congress recommended that the Committee of Ministers call on member States to take a range of steps and measures. In its comments on this Recommendation, requested by the Committee of Ministers, the CDLR recommended: “that the Ministers’ Deputies invite the Congress to enter into a concrete dialogue with the CDLR to explore the issues and policy proposals it raises with a view to identifying concrete action that could be undertaken, both at the level of the Council of Europe and by member States, including their local and regional authorities.”
In anticipation of such further dialogue the CDLR launched a survey among member States to see to what extent the measures envisaged by the Congress in its Recommendation 280 correspond to the existing situation in member States.
The results of this survey are appended[6]. They appear to show that few of the measures recommended by the Congress correspond to current practice in member States. This suggests there would still be quite a gap to bridge between what the Congress recommends and actual practice.
Meanwhile, the Committee of Ministers, on 6 July 2011, adopted its reply to the Congress in response to Recommendation 280. Whilst expressing interest and support for some of the measures recommended by the Congress, the Committee of Ministers does not envisage moving towards making any kind of recommendation to member States nor to take other action further to this Recommendation.
The suggestion by the CDLR to “invite the Congress to enter a concrete dialogue with the CDLR to explore the issues and policy proposals it raises with a view to identifying concrete action that could be undertaken, both at the level of the Council of Europe and by member States, including their local and regional authorities” is not referred to in the CM’s reply. This raises the question whether such a dialogue is to be pursued.
In order to clarify this matter it is suggested that Ministerial Conference raises the question before the Committee of Ministers.
[1] The Secretariat should contact the Fundamental Rights Agency of the European Union, with which effective connections already exist, in order to gather fresh information on the Agency’s 2013 work programme and initiatives so that synergies are developed, as the case may be, and overlapping is avoided.
[2] Mr Auke van der Goot and Mr Paul-Henri Philips were appointed to this function before the Kyiv conference.
[3] This report was prepared in advance of the Kyiv Conference and is reproduced here for information.
[4] Mr. Auke van der Goot, the Netherlands. Unfortunately the co-rapprteur, Mr Paul-Henri Philips of Belgium, was for health reasons unable to take part beyond the initial stage in the preparation of this draft report.
[5]Of course, also at international level the protection of human rights is not the exclusive domain of the Council of Europe.
[6] The appendix is not reproduced in this document.