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Resolution 2087 (2016)
Introduction of sanctions against parliamentarians
1. In recent decades, international
action has become increasingly important in the work of national parliaments,
with the growing number of interparliamentary co-operation organisations
and international parliamentary forums, the development of bilateral
and multilateral international parliamentary relations (friendship
groups, specialised interparliamentary networks), study groups and
fact-finding visits. Furthermore, there is an increasing demand
for interparliamentary co-operation, in particular in connection
with support for the democratic transition process in many States.
2. As an institution emblematic of interparliamentary co-operation
in Europe, the Parliamentary Assembly refers to its Resolution 1773 (2010) on
promoting parliamentary diplomacy, in which it welcomed the positive role
played by such diplomacy in preventing conflicts, reducing tension
between countries, facilitating dialogue and mediation.
3. The Assembly is seriously concerned about the current political
context in Europe, where the illegal annexation of Crimea by the
Russian Federation and its intervention resulting in a military
conflict in eastern Ukraine, following the war between Russia and
Georgia, and the occupation and illegal recognition of the independence
of the Georgian territories of Abkhazia and South Ossetia by the
Russian Federation, have generated a climate of mutual distrust
and revived security concerns within Council of Europe member States and
the European Union, against a background of a “war of sanctions”.
The reciprocal direct sanctions and the resulting restrictions on
travel by parliamentarians are particularly harmful to parliamentary
diplomacy.
4. The Assembly reaffirms the principle of territorial integrity,
sovereignty and inviolability of the internationally recognised
borders of all member States. In this context, the Assembly has
systematically condemned the violation of international law and
the Statute of the Council of Europe (ETS No. 1) by the Russian
Federation in respect of Georgia and Ukraine. It has, inter alia, deplored the actions
of the individual members of the Russian Federation Duma and the
Federation Council who have unanimously voted in favour of military
aggression, occupation, recognition of independence and annexation
of parts of Council of Europe member States, and it has imposed
sanctions envisaged by the Statute of the Council of Europe.
5. The Assembly believes that the restrictive measures targeting
parliamentarians are not compatible with the very nature of parliamentarianism,
which requires relations to be maintained through dialogue. It is concerned
that the spread of individual sanctions, involving the sharing of
responsibility between States and individuals who support the State’s
objectives, may result in an excessively moralistic trend in international
law and the system of international liability, whereby, in the absence
of any criminal liability, individual sanctions supplement the traditional
sanctions targeting States.
6. Moreover, the Assembly notes the existence of national “blacklists”
of parliamentarians to whom the States which have compiled these
lists can refuse visas or entry. Criminal or administrative proceedings
for having breached a State’s legislation on entry into its territory
must fully comply with international law. The Assembly underlines
that, regardless of the legitimacy of the assertion by certain States
of their sovereignty or the integrity of their territory in response
to real or presumed threats, all restrictive measures are subject
to compliance with international law, principles of good governance
and the respect of law.
7. However, the Assembly stresses that the measures it can adopt
against its delegations or individual members under its Rules of
Procedure are not part of a sanctions regime regulated by international
law. These measures should be seen as a mechanism to prevent serious
violations of the basic principles established by the Statute of
the Council of Europe and persistent failures to honour obligations
and commitments by the Council of Europe’s member States.
8. The Assembly considers that, although international law in
principle grants States full sovereignty over their territory, entry
bans imposed by member States on parliamentarians amount to interference
in their exercise of the right to freedom of expression enshrined
in the European Convention on Human Rights (ETS No. 5). With reference
to Resolution 1894 (2012) on
the inadmissibility of restrictions on freedom of movement as punishment
for political positions, the Assembly reasserts that freedom of
movement as a corollary of freedom of expression must not be subject
to restrictions or used as punishment for peacefully expressing political
opinions. Freedom of political expression enjoys enhanced protection
and should not be restricted without compelling reasons.
9. The Assembly welcomes the fact that since the adoption of
its Resolution 1597 (2008) on
United Nations Security Council and European Union blacklists, the
safeguards applicable to sanction procedures or restrictive measures
both at United Nations and European Union level, in particular the
procedures for challenging the measures, and the scope and intensity
of judicial review of the measures, have been duly improved. In
this connection, it welcomes the judicial supervision exercised
by the Court of Justice of the European Union over decisions providing
for restrictive measures against natural or legal persons adopted
by the Council of the European Union and expects the Court of Justice
to clarify the extent and scope of the safeguards concerning natural
persons through its case law.
10. The Assembly considers that any sanction targeting individuals
must meet the requirements of legal certainty and be accompanied
by appropriate procedural guarantees. However, in the case of parliamentarians,
even if judicial reviews of bans or restrictive measures imposed
by third countries play a key part in protecting them against arbitrary
decisions, they should be afforded additional safeguards in order
to offset the harmful effects which travel restrictions may have
on the performance of their duties. The Assembly calls on Council
of Europe member States to provide foreign parliamentarians targeted
by restrictive measures, such as being placed on entry or visa blacklists,
with a transparent listing and appeals procedure.
11. In this context, the Assembly calls on member States which
have adopted or may adopt restrictive measures to:
11.1. identify exhaustively the provisions
governing the restrictive measures, travel ban lists or special rules
on movement which could restrict foreign parliamentarians’ freedom
of movement;
11.2. make sure that there is a close link between a restrictive
measure imposed on a foreign parliamentarian and its intended purpose.
In particular, national security grounds must not be used to restrict
the access of a parliamentarian who is peacefully expressing certain
political positions;
11.3. notify foreign parliamentarians who are subject to bans
or restrictive measures that such measures are in place and the
reasons for them;
11.4. ensure that foreign parliamentarians are able, at short
notice, to submit their observations to the body that has imposed
or is threatening to impose a restriction;
11.5. suspend the execution of a ban or restrictive measure
while it is being challenged.
12. The Assembly is seriously concerned about the restrictions
or travel bans which certain Council of Europe member States have
imposed on Assembly members in the performance of their duties,
in particular in the case of election observation exercises or visits
by rapporteurs duly appointed by it, whether in terms of refusals
to issue visas or threats of arrest or prosecution under national
legislation. The Assembly unreservedly condemns these restrictions,
which are a flagrant violation of the General Agreement on Privileges
and Immunities of the Council of Europe (ETS No. 2) and the protocol
thereto (ETS No. 10) and a breach of the undertaking to co-operate
with the Assembly.
13. Under the Statute of the Council of Europe and the General
Agreement on Privileges and Immunities of the Council of Europe
and the protocol thereto, to which they all are parties, Council
of Europe member States have undertaken to recognise and guarantee
the free movement and immunity of Assembly members and to protect
them against any legal proceedings or detention, thereby ruling
out both entry or visa bans and prosecution for failure to comply
with rules on entry or movement, for instance via legislation on
occupied territories.
14. The Assembly emphasises that, in accordance with the principles
of international law, no State may evade the obligations imposed
on it by international law or the treaties which it has signed by
relying on the provisions of its domestic legislation, of whatever
kind, including its own constitution. Accordingly, no Council of
Europe member State may derogate from the obligations it entered
into under the General Agreement on Privileges and Immunities and
the protocol thereto by relying on provisions of its domestic law
to justify its failure to comply.
15. The Assembly therefore formally asks the member States to
abide by their commitments to:
15.1. guarantee
free movement of members of the Assembly. When a member State hosts
a meeting, a visit or an official event organised by the Assembly,
it must facilitate the participation of members of the Assembly
and issue the visas required for their entry into its territory,
unless otherwise provided by the principles of international law;
15.2. guarantee the immunity of members of the Assembly against
any legal proceedings or measures for their arrest or detention,
except in cases of flagrante delicto.
16. Reiterating firmly the position which it took in Resolution 2078 (2015) on
the progress of the Assembly’s monitoring procedure, Resolution 2063 (2015) on
consideration of the annulment of the previously ratified credentials
of the delegation of the Russian Federation and Resolution 2034 (2015) on
the challenge, on substantive grounds, of the still unratified credentials
of the delegation of the Russian Federation, the Assembly condemns
the violation by the Russian Federation of the General Agreement
on Privileges and Immunities of the Council of Europe and calls
on the authorities to release immediately Nadiia Savchenko, member
of the Assembly.
17. The Assembly believes that it is now vital for national parliaments
to introduce good governance in the area of their international
activities if they wish to continue to operate legitimately through
parliamentary diplomacy. It calls on the national parliaments of
the member States to:
17.1. draw
up guidelines on the conduct of bilateral or multilateral interparliamentary
relations, setting out the aims, instruments and arrangements for
interparliamentary co-operation, as well as the institutional and
legal framework, the procedural or organisational aspects or general
rules of conduct, the rules applicable to visits by parliamentarians
to other countries and, where applicable, the specific rights of
parliamentarians travelling on official business;
17.2. provide appropriate training for members of parliament
and the relevant secretariat staff concerning the preparation and
conduct of parliamentary visits to foreign countries and prepare
updates on specific rules and regulations outlined by the national
legislation of Council of Europe member States and parliamentary
practice;
17.3. support initiatives aimed at promoting, at international
level, the recognition of an international status for parliamentarians
and any related rights and obligations, which is vital to the development
of parliamentary diplomacy.
18. The Assembly also calls on the member States to:
18.1. sign and ratify the 1969 United
Nations Convention on Special Missions;
18.2. study without delay the question of the rights and obligations
of national parliamentarians from Council of Europe member States
travelling on their territory in order to grant them adequate safeguards for
carrying out their duties freely and effectively outside their own
countries, including the freedom of movement and expression, and
inviolability of their person;
18.3. in this context, study the possibility of granting national
parliamentarians from Council of Europe member States travelling
on their territory on behalf of their parliaments the same immunities
as parliamentarians from their own countries.
19. Against this overall background of the internationalisation
of national parliamentary activities and given the greater responsibility
now borne by parliamentarians on account of their actions and decisions,
with the possibility of their being held personally liable under
international law, the lack of a specific status and protection
for parliamentarians under international law means that parliamentarians’
rights and privileges outside their own countries are precarious.
Account therefore needs to be taken of the specific nature of parliamentary
work at international level and the protection afforded to those
performing it needs to be strengthened, in particular in relation
to third countries. The Assembly therefore calls on:
19.1. the Inter-Parliamentary Union
to draft and promote a set of rules applicable to parliamentarians travelling
abroad in the exercise of their duties so as to provide an international
framework for interparliamentary co-operation;
19.2. the United Nations International Law Commission to promote,
in its ongoing discussions, a comprehensive international legal
framework so that parliamentarians targeted by restrictive measures are
covered by a proper status in this connection, given the wide range
of different safeguards afforded to individuals targeted by sanctions,
which currently depend on the legal order of the international organisation
or State which imposed them.