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Joining Convention 108

My template for the Prezi Design Challenge! 100% handmade images. :) Full screen recommended! (I'm from Hungary - GMT +1 time zone -, just in case you see "July 22nd" as the last editing date!)

on 22 August 2018

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Transcript of Joining Convention 108

Fasten your seatbelts, we're taking off to the universe of treaties!
Convention 108 as a CoE treaty
Prerequisites for accession
Accession procedure
Plenary meeting

2 meeting/year (gathering all parties + EU & observers)
multi-stakeholder approach with ICC, civil society
CoE covers participation for all parties

I finished checking our spaceship!
Surprise 3.

Joining Convention 108 - When & how?

Prerequisites for accession

Article 4 – Duties of the Parties

1) Each Party shall take the necessary measures in its domestic law to give effect to the basic principles for data protection set out in this chapter.

2) These measures shall be taken at the latest at the time of entry into force of this Convention in respect of that Party.

Object & purpose (article 1)

Definitions (article 2 - e.g. personal data, controller)

Scope of data protection system (article 3)

Quality of data (article 5 - e.g. fair & lawful processing, data minimisation)

Special categories of data (article 6)

Data security (article 7)

Additional safeguards (such as information, access, rectification, remedy, article 8)

Exceptions & restrictions (article 9)

Sanctions and remedies (article 10)

Transborder data flows (article 12 and article 2 of the additional protocol)

Supervisory authority (article 1 of the additional protocol)

The CM Procedure
The role of the Committee of Ministers
The CM intervenes in the life-cycle of treaties at various critical stages. Effectively,

the elaboration of a treaty can only take place with CM authorisation and under its authority;

the adoption of a treaty requires a CM decision;

CM approves amendments;

follow-up is sometimes carried out by steering committees acting under CM authority;

CM approves invitation of non-member states.

Adoption of the decision to invite a non-member state to accede

by the majority foreseen in article 20.d of the Statute, which provides:

“All other resolutions of the Committee (…) require a two-thirds majority of the representatives casting a vote and of a majority of the representatives entitled to sit on the Committee.”

with the unanimous vote of the representatives of the contracting states entitled to sit on the CM

The decision of the Committee of Ministers is communicated to the concerned State by means of a letter signed by the Secretary General of the Council of Europe.

Bureau meetings
3 meetings/year
COE covers participation of 8 bureau members elected by the plenary
participation at their own cost of other Committee of the Convention 108 members
bureau meetings are working labs where policy documents are being shaped and influenced with the guidance of scientific experts
synergies with the work of other key actors in the field (e.g. EDPS, EDPB, OECD).

Chapter V – Consultative Committee

Article 19 – Functions of the committee

The Consultative Committee:

a) may make proposals with a view to facilitating or improving the application of the Convention;

b) may make proposals for amendment of this Convention in accordance with Article 21;

c) shall formulate its opinion on any proposal for amendment of this Convention which is referred to it in accordance with Article 21, paragraph 3;

d) may, at the request of a Party, express an opinion on any question concerning the application of this Convention.

Calender of meetings


Communication of the CM decision

Accession Procedure
Before acceding
Once the authorities of the invited state have received the letter communicating the CM’ favorable decision, the state concerned can at any time proceed to the necessary steps to become a party to the convention.

However, before it engages its responsibility on the international plane by becoming a party ,the state must take the necessary measures to ensure that its domestic law allows the convention to be implemented.

Consent to be bound
States may become parties to the treaties by expressing their consent to be bound through:

Signature followed by ratification, acceptance or approval: act by which the state expresses its definitive consent to be bound by the treaty, by depositing an instrument of ratification, acceptance or approval with the Secretary General of the CoE

Accession: usual method by which a state which has not taken part in the negotiations or signed the treaty, may subsequently express its consent to be bound

Deposit of the instrument of accession
It is customary for the instrument of accession to be deposited at the seat of the Council of Europe in Strasbourg,
should it prove difficult for the acceding state to send a representative to Strasbourg, the instrument of accession may be sent by diplomatic courrier.

The deposit takes place in the presence of a representative of the acceding state and of the Secretary General of the Council of Europe or his/her deputy

The representative of the acceding state brings with him/her :
A) the instrument of accession
B) the instrument/note verbale containing any declaration and/or reservation to the treaty.

Any declarations or reservations are to be made when depositing the instrument of accession. Reservations may not be made at any later date.

A procès-verbal of deposit prepared by the Treaty Office is signed by both the representative of the state and the representative of the Council of Europe.
The deposit of the instrument of accession is notified by the Depositary to the members of the Council of Europe and to the other parties to the treaty.

Requirements for a valid instrument
Treaty must be identified
Declaration of undertaking
Expression of intent of the Government to be bound by the treaty and to undertake faithfully to observe and implement its provisions.
Issued and signed
Head of State or Government or the MFA or by a person exercising the power of one of these authorities ad interim.

Model of an instrument of accession
WHEREAS the [title of treaty] was concluded [adopted, etc.] at
[place] on [date],

NOW THEREFORE I, [name and title of the head of state or government or minister of foreign affairs (MFA), declare that the government of [name of State], having considered the above mentioned [treaty], accedes to the same and undertakes faithfully to perform and carry out the stipulations therein contained.

IN WITNESS WHEREOF I have signed this instrument of accession at [place] on [date].


Model of an instrument of ratification, acceptance or approval
WHEREAS the [title of treaty] was [concluded, adopted, etc.] at [place] on [date],

AND WHEREAS the said [treaty] has been signed on behalf of the
Government of [name of State] on [date],

NOW THEREFORE I, [name and title of the head of state or
government or MFA], declare that the government of [name of State],
having considered the above mentioned [treaty], ratifies [accepts,
approves] the same and undertakes faithfully to perform and carry out the
stipulations therein contained.

IN WITNESS WHEREOF I have signed this instrument of
[ratification, acceptance, approval] at [place] on [date].

A reservation is any statement however phrased or named –which purports to exclude or modify the legal effect of a treaty provision
Legally binding and must be included in a signed instrument of accession, ratification, acceptance, or, if contained in separate document, it must be signed in its own right
Must be made at the time of deposit of instrument of ratification, accession
If made at the time of signature, it must be confirmed upon ratification, acceptance or approval

Declarations & reservations
Reservations prohibited - article 25
Declarations - article 3(2):
exclude certain categories of files
include information relating to legal persons
include files processed manually
Following the entry into force of the 2018 protocol, all these declarations will lapse.

legal nature
CoE conventions are multilateral treaties governed by the Vienna Convention on the Law of Treaties

Treaties are legally binding on states which have become parties to them (through signature/ratification or accession)

CoE Treaty Series uses “convention”, “agreement”, “code”, “charter”, “protocol”, but but terminology does not affect their legal nature

Treaty Office
The Secretary General of the Council of Europe is depositary of the treaties.

Treaty Office exercises depositary functions - it
publishes and is the custodian of the original texts of all the treaties;
organises each ceremony of signature or ratification;
receives and registers the ratifications, as well as any declarations and reservations;
ensures that the documents it receives are in due and proper form;
notifies these documents to CoE member states and other states or organisations which are parties to the treaties.

CoE Treaties & non-member States
CoE Treaties & non-member States
Over 80% of the 222 Conventions permit non-member states to participate.

> 60 states are either signatory / party to a Council of Europe Convention, or who are entitled to become a signatory / party thereto.

Algeria, Argentina, Australia, Bahamas, Belarus, Belize, Bolivia, Brazil, Burkina Faso, Canada, Cape Verde, Chile, China, Cameroon, Colombia, Costa Rica, Dominican Republic, Ecuador, Gabon, Ghana, Guinea, Guatemala, Holy See, Honduras, Indonesia, India, Israel, Japan, Kazakhstan, Kenya, Kyrghyz, Republic, Lebanon, Malaysia, Mauritius, Madagascar, Mexico, Morocco, Nigeria, Niue, New Zealand, Panama, Peru, Philippines, El Salvador, Saudi Arabia, Senegal, Singapore, Korea, South Africa, Seychelles, Syria, Tajikistan, Tonga, Trinidad and Tobago, Tunisia, Uruguay, United States of America, Saint Vincent and the Grenadines, Venezuela…

Convention 108
Additional Protocol (ETS No. 181)
Mother Convention
Defines basic principals and guarantees in relation to the collection and processing of personal data
Provides a framework for mutual assistance
Sets up the consultative committee (T-PD)
Increases the protection of personal data and privacy by improving the original Convention of 1981 (ETS No. 108) in two areas:

Requiring the setting up of independent supervisory authorities
Regulating transborder data flows to third countries.
Treaty Office

Directorate of Legal Advice and Public International Law
Council of Europe

F-67075 Strasbourg Cedex (France)
Tel.: +33 3 88 41 20 00

E-mail : treaty.office@coe.int


Jörg Polakiewicz
Legal Adviser
T-PD opinion
The number of requests of non-member States of the Council of Europe to be invited to accede to CoE treaties , and the number of invitations to sign or accede to Council of Europe Conventions, increased significantly since 2008.

More than 32 non-member states have been invited to accede to one or more CoE treaties.
Follow-up by the committee of Convention 108
 entry into force of all provisions after 5 years for those states which have expressed their consent to be bound, provided that there are at least 38 parties [article 37 (2)]

 avoid a situation where a few or even one country could eternally block the entry into force of urgently needed amendments

 coexistence of different legal regimes: most amendments will be introduced unilaterally into domestic (or EU) legislation, others, for example on transborder data flows, will be applied essentially bilaterally; finally, convention committee will start functioning between a limited number of parties.

 provisional application on an “opt-in” basis [article 37 (3)]

 any state may notify the SG upon signature or later, that it will apply the protocol provisionally

 no substitute for entry into force, but immediate application of the amendments, except for provisions on entry into force & accession of third countries, EU and international organisations

Modernised 108 Convention

 addressing new challenges by adapting the convention’s principles and reinforcing the rights of data subjects

 transparency, proportionality, accountability, data minimisation, privacy by design, privacy impact assessment

 extending the catalogue of sensitive data (genetic, biometric data, trade-union membership, ethnic origin)

 notification of data security breaches

 guaranteeing free flow of information while ensuring an appropriate protection of personal data

 independent supervisory authorities

 reinforcing the follow-up mechanism (peer evaluation through a reinforced convention committee)

 entry into force after all contracting states (as of date of opening for signature) have expressed their consent to be bound [article 37 (1) – “traditional clause”]

 after Opening for signature until entry into force of the 2018 Protocol, any new acceding state shall accede simultaneously to Convention 108 and the 2018 Protocol [article 36 (2)]
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