1. Introduction
1. In April 2014, a group of Russian
parliamentarians, joined by the Chairs of the Assembly’s political groups
and other Assembly members, tabled a motion for a resolution entitled
“Introduction of sanctions against parliamentarians”, which was
referred to the Committee on Rules of Procedure, Immunities and Institutional
Affairs for report. The motion refers to the decision by the European
Union to ban a certain number of Russian parliamentarians from entering
or passing through its territory. Its signatories argue that the European
Union’s visa ban on foreign parliamentarians interferes, amongst
other things, with their freedom of expression. They therefore propose
that consideration be given to the compliance of these measures,
deemed discriminatory and unconstructive, with fundamental instruments
of the Council of Europe, including the European Convention on Human
Rights (ETS No. 5, “the Convention”), and, more generally, their
compatibility with “the nature of parliamentarism which presupposes
having relations through dialogue”.
2. Subsequently, other cases of potential sanctions against parliamentarians
were added to the initial referral in order that they might be considered
in this report: these cases raise the question of national “blacklists”
– lists of undesirable non-citizens, including parliamentarians,
to whom a State can refuse entry or a visa –
![(3)
The motion for a resolution
tabled by Mr Kox and other members of the Assembly in October 2015
on “Blacklisting of elected parliamentarians, counterproductive
to parliamentary diplomacy” (Doc.
13902) argues that blacklisting of elected members of national
parliaments is severely undermining the work of the members of the
Parliamentary Assembly and is a serious barrier for exercising their
mandate; such sanctions are seen as counterproductive.](/nw/images/icon_footnoteCall.png)
and
the issue of criminal or administrative sanctions ordered by a court
in one country against parliamentarians subject to a foreign jurisdiction,
because they have violated the laws governing entry into its territory.
3. Lastly, the cases of Ms Nadiia Savchenko, a member of the
Ukrainian parliamentary delegation facing prosecution in Russia,
![(4)
Nadiia Savchenko, a
Ukrainian army officer captured by pro-Russian separatists in June
2014, was elected to the Ukrainian Parliament on 26 October 2014,
when she was in pretrial detention in Moscow; she was appointed
a member of the Ukrainian delegation to the Parliamentary Assembly
for the 2015 session.](/nw/images/icon_footnoteCall.png)
and Ms Khalida Jarrar,
a member of the Palestinian partnership for democracy delegation,
were raised during the committee’s discussion of the report in connection
with the General Agreement on Privileges and Immunities of the Council
of Europe (ETS No. 2).
4. The rapporteur would like to thank Mr Antonios Tzanakopoulos,
Associate Professor of Public International Law in the Faculty of
Law of the University of Oxford, and Mr Conor McCarthy, a lawyer
in London, for information on a large number of legal points governing
sanctions in international law. The rapporteur also received a written
contribution from Mr McCarthy that he found very helpful in preparing
this report.
2. Issues and scope of this report
5. The multilateral nature of
international relations today and the proliferation of international
parliamentary forums and organisations for interparliamentary co-operation
have led to increasing foreign travel by members of national parliaments.
At the same time, parliaments have expanded their international
work (parliamentary friendship groups, specialist international
parliamentary networks) and are also called upon to decide on foreign
policy issues, which entails working relations with their counterparts
in parliaments abroad and travel, both formal and informal, beyond
national borders (fact-finding missions, study groups). The concept
of parliamentary diplomacy shows the growing importance of international
action within national parliaments, building on and complementing
State diplomacy. The Parliamentary Assembly has underlined the positive
role of parliamentary diplomacy with regard to preventing conflicts,
facilitating dialogue and promoting mediation.
![(5)
See the report of the
Committee on Political Affairs and Democracy on promoting parliamentary
diplomacy (Doc. 12428) and Assembly Resolution
1773 (2010).](/nw/images/icon_footnoteCall.png)
6. The multilateralism of today’s relations requires adequate
safeguards for members of national parliaments when travelling abroad
or attending international meetings. However, sanctions and threats
of prosecution impose restrictions on the constituted authorities
and on the means of action and expression of parliamentarians, preventing
the enjoyment of certain rights and freedoms conferred on them,
foremost among which are freedom of movement and freedom of expression,
which are also fundamental rights protected by the European Convention
on Human Rights and its protocols.
7. Given the unprecedented growth in the system of multilateral
parliamentary co-operation since the end of the Second World War,
the question whether measures sanctioning parliamentarians are consistent
with the nature of parliamentarism itself extends beyond just Europe,
of which our Assembly is emblematic, and constitutes a far more
global issue.
8. The rapporteur recognises that while, in principle, international
law accords States the sovereign right to decide whether or not
to grant access to their territories, the act of refusing entry
to an individual solely on the grounds that he or she champions
certain political or ideological opinions might constitute an abuse
of law and a form of discrimination within the meaning of Article
14 of the European Convention on Human Rights. In its
Resolution 1894 (2012) on the inadmissibility of restrictions on freedom of
movement as punishment for political positions, the Assembly condemned
such discriminatory practices, which also jeopardise the concept of
parliamentarism.
![(6)
See
the report by the Committee on Legal Affairs and Human Rights (Doc. 12943) and Resolution
1894 (2012), in particular paragraph 5.2: “[The Assembly] stresses
that freedom of movement should not be restricted or used as a sanction
for the expression of peacefully held political opinions and calls
on the member States of the Council of Europe to give full effectiveness
to the freedom of expression under Article 10 of the European Convention
on Human Rights, by refraining from denying access to their territories
on such grounds.”](/nw/images/icon_footnoteCall.png)
9. The present report sets out to clarify the status of parliamentarians
in relation to government actions, and the status of a national
parliamentarian in relation to a third State, by studying the provisions
that have made it possible to introduce sanctions despite the protected
status of parliamentarians. The report therefore seeks to determine
whether, ultimately, there are any statutory limits that can be
imposed on the work of parliamentarians, particularly in their relations
with third States, and whether there is a small core of specific rights
that national parliamentarians can invoke against third countries
whatever the circumstances.
10. Although the report does contain some observations on the
nature and scope of sanctions against individuals who happen to
be parliamentarians and the procedure followed in these cases, they
are intended solely to provide a better understanding of the issues
associated with the status of parliamentarian. This report intends
to answer the specific questions raised with regard to individual
nominative sanctions imposed by third States and international organisations
through restrictive measures. It will therefore not address, of
course, measures adopted by the Parliamentary Assembly against its
delegations or members, individually, under its Rules of Procedure,
since they are not part of a sanctions regime regulated by international
law.
3. Background
to the sanctions introduced against members of the Parliamentary
Assembly
3.1. Restrictive
measures adopted by the European Union in respect of actions undermining
or threatening the territorial integrity, sovereignty and independence
of Ukraine
11. On 1 March 2014, Russia’s Federation
Council, meeting in extraordinary session, took the decision to authorise
the President of Russia to deploy military forces on the territory
of Ukraine. Under Article 102.1.d of the
Constitution of the Russian Federation, the jurisdiction of the
Federation Council includes all decisions concerning possible use
of the Russian Federation’s armed forces outside its borders. This
decision was unanimously approved by the 90 members present.
12. The subsequent illegal annexation of Crimea by the Russian
Federation and its intervention resulting in a military conflict
in eastern Ukraine led the European Union to introduce a series
of restrictive measures, including visa or entry bans targeting
Russian parliamentarians and the freezing of certain assets.
13. Since the first list of sanctions entered into force on 17
March 2014,
![(7)
Council
Decision 2014/145/CFSP and Council Regulation (EU) No. 269/2014
of 17 March 2014 concerning restrictive measures in respect of actions
undermining or threatening the territorial integrity, sovereignty
and independence of Ukraine.](/nw/images/icon_footnoteCall.png)
the European Union
has made regular additions to it. In all, among the 149 individuals
targeted, 27 Russian parliamentarians
![(8)
See the list of individuals
and entities subject to EU sanctions as at 15 September 2015: <a href='http://europa.eu/newsroom/highlights/special-coverage/eu_sanctions/index_en.htm'>http://europa.eu/newsroom/highlights/special-coverage/eu_sanctions/index_en.htm.</a>](/nw/images/icon_footnoteCall.png)
appear on the sanctions list, including
the speakers of the two chambers of the Russian Parliament and committee
chairs and vice-chairs. As far as the parliamentarians are concerned,
the reasons given for their inclusion on the list refer mainly to
the fact that they publicly supported the deployment of Russian
troops in Ukraine, including during the debate in the Federation
Council on 1 March, and, in some cases, initiated or supported the
legislation facilitating the annexation of Crimea.
![(9)
In 2014 and 2015, several
non-EU States – in particular the United States, Canada, Australia,
Japan, Switzerland and some other European States – have adopted
sanctions similar to those of the European Union for breaches of international
law owing to violation of the integrity and sovereignty of Ukraine.](/nw/images/icon_footnoteCall.png)
14. In response, Russia’s Minister of Foreign Affairs established
a list comprising dozens of politicians banned from entering Russian
territory,
![(10)
In
September 2014, the German MEP Rebecca Harms was denied entry to
Russia to attend the trial of Nadiia Savchenko. On 2 March 2015,
the Latvian MEP Sandra Kalniete and the Speaker of the Polish Senate,
Bogdan Borusewicz, were denied entry to Russia to attend the funeral
of the opposition politician Boris Nemtsov.](/nw/images/icon_footnoteCall.png)
including
several MEPs, national parliamentarians, as well as current
![(11)
Mr Robert Walter and
Mr Karl-Georg Wellmann. After the list was published, the competent
Russian authorities gave assurances that the members of the Parliamentary
Assembly concerned would be able to travel to Russia officially
under the General Agreement on Privileges and Immunities of the
Council of Europe.](/nw/images/icon_footnoteCall.png)
or former members of the Parliamentary
Assembly.
![(12)
Such
as Ms Marietta de Pourbaix-Lundin, Ms Kristina Ojuland, Mr Tunne
Kelam, Mr Vytautas Landsbergis and Mr Per Stig Møller.](/nw/images/icon_footnoteCall.png)
15. On 10 April 2014, “in order to mark its condemnation and disapproval
of the Russian Federation’s actions with regard to Ukraine” the
Parliamentary Assembly resolved to suspend until the end of the
2014 session the Russian delegation’s voting rights and its right
to be represented in the Assembly’s governing bodies and to participate
in election observation missions.
![(13)
Resolution 1990 (2014) on the reconsideration on substantive grounds of the
previously ratified credentials of the Russian delegation, and Doc. 13488. The “sanctions” decided in Resolution 1990 (2014) remained in force until the opening of the 2015 session.
In January 2015, the Parliamentary Assembly decided again to suspend
a certain number of the Russian delegation’s rights throughout the
Assembly’s 2015 session, “as a clear expression of its condemnation
of the continuing grave violations of international law in respect
of Ukraine by the Russian Federation” (Resolution 2034 (2015) and Doc.
13689), namely its voting rights, its right to be represented
in the Bureau, Presidential Committee and Standing Committee of
the Assembly, the right to be appointed rapporteur, the right to
be a member of an ad hoc committee on observation of elections and
the right to represent the Assembly in Council of Europe bodies
as well as external institutions and organisations.](/nw/images/icon_footnoteCall.png)
The
Russian delegation therefore took the decision to suspend its participation
in the Assembly’s work
sine die.
3.2. Parliamentarians’
failure to comply with entry rules
16. In addition to reciprocal direct
sanctions connected with the conflict in Ukraine, mention should
be made of other cases involving members of the Parliamentary Assembly
who are threatened with criminal or administrative prosecution for
having exercised freedom of movement.
17. In February 2015, Mr Andrej Hunko, a member of the German
delegation to the Assembly, travelled to eastern Ukraine on behalf
of a non-governmental organisation (NGO), entering through an unauthorised border
crossing point from the Russian Federation.
![(14)
Ukraine law “On ensuring
the rights and freedoms of citizens and the legal regime on the
temporarily occupied territory of Ukraine”, 4 March 2014.](/nw/images/icon_footnoteCall.png)
The
Committee on Rules of Procedure, Immunities and Institutional Affairs,
having studied the case on 24 June 2015 at the request of the Bureau
of the Assembly, noted that Mr Hunko had not travelled to eastern
Ukraine as a duly accredited member of the Assembly and that consequently
he was not entitled to the type of protection offered by the Statute
of the Council of Europe (ETS No. 1) and the General Agreement on
Privileges and Immunities regarding any sanctions that he might face
owing to his entry into Ukrainian territory in breach of Ukrainian
law.
![(15)
In contrast,
the Ukrainian authorities granted Mr Hunko the necessary accreditation
to visit Ukraine as part of the Council of Europe delegation to
observe the local elections (25 October 2015), in full compliance
with the General Agreement on Privileges and Immunities.](/nw/images/icon_footnoteCall.png)
It
shall be noted that Mr Hunko again visited eastern Ukraine in November
2015, without the prior authorisation of the Ukrainian authorities.
18. In July 2015 a group of French parliamentarians, including
three members of the Assembly (Mr Thierry Mariani, Mr Yves Pozzo
di Borgo and Ms Marie-Christine Dalloz) went on a visit to Crimea,
presented as private, at the invitation of the Russian authorities.
The Ukrainian authorities were not informed of this visit, to which
they objected as soon as they learnt about it from the media.
![(16)
This affair has led
to numerous further developments within the Parliamentary Assembly,
including in regulatory terms, and to lively exchanges of correspondence
between the President of the Assembly, the chair of the Ukrainian parliamentary
delegation, the Speaker of the Verkhovna Rada, Mr Mariani, Ms Dalloz
and the chair of the French parliamentary delegation. In connection
with the subject of this report, it is worth noting that Mr Mariani,
in a letter to Mr Ariev dated 6 August 2015, referred to “the French
parliamentary tradition of total freedom of movement for deputies” and
stated, as also at the Bureau meeting on 31 August 2015, that he
had only exercised “his right as a member of parliament”. See also
information memorandum AS/Pro (2015) 24.](/nw/images/icon_footnoteCall.png)
19. Access to Crimea, which is still considered part of Ukrainian
territory by the international community, is governed by a decree
of the Ukrainian Cabinet that provides for prosecution in the event
of failure to comply with the prescribed procedure.
![(17)
Ukrainian Cabinet Decree
No. 367 of 4 June 2015.](/nw/images/icon_footnoteCall.png)
Further to a request
from the Ukrainian Ministry of Foreign Affairs, the French parliamentarians
who visited Crimea have been included on the Ukrainian travel ban
list.
![(18)
In addition,
the Prosecutor General’s Office of Ukraine has initiated criminal
proceedings against the 10 French parliamentarians, who risk a five-
to eight-year prison sentence for “violation of the procedure for
entry into a provisionally occupied territory of the Ukraine”.](/nw/images/icon_footnoteCall.png)
20. It should be noted that special provisions on entering and
travelling within part of a national territory are nothing new.
There are already a number of territorial disputes concerning, in
particular, Nagorno-Karabakh, Abkhazia (Georgia) and South Ossetia
(Georgia), to which Crimea and the occupied territories of the Donetsk and
Luhansk regions (Ukraine) may now be added. The European Commission
for Democracy through Law (Venice Commission) has had the opportunity
to comment on this type of legislation, which reflects national authorities’
determination to maintain the sovereignty and integrity of their
territory and which it does not consider incompatible per se with
international standards.
![(19)
See
the three successive opinions adopted in March and October 2009
on the “Law on occupied territories of Georgia” (CDL-AD(2009)015,
CDL-AD(2009)046 and CDL-AD(2009)051), in which the Venice Commission
finds that it “raises several issues which should be addressed by
the Georgian authorities to ensure the compatibility of the law
with international law” and therefore recommends making changes
to this law.](/nw/images/icon_footnoteCall.png)
3.3. Detention
of parliamentarians
21. Detention represents an extreme
form of sanction against parliamentarians. By its very nature, the principle
of parliamentary immunity, recognised in many European States as
safeguarding the independence of the parliamentary institution,
precludes the arrest, detention, loss or restriction of liberty,
or prosecution of an elected representative without the consent
of the parliament of which he or she is a member.
22. The case of Ms Nadiia Savchenko, a member of the Ukrainian
Parliament and Ukrainian delegation to the Parliamentary Assembly,
who has been held in prison in the Russian Federation since June
2014, is of particular note in this connection. For over a year
now the international community has been taking action and making
considerable efforts to have her freed.
![(20)
See, for example, the
resolution of the US Senate dated 12 February 2015 (S. Res 52) and
the resolution of the European Parliament dated 30 April 2015 (TA-(2015)0186)
on the case of Nadiia Savchenko. The OSCE Office for Democratic
Institutions and Human Rights is monitoring her situation closely.](/nw/images/icon_footnoteCall.png)
In
January 2015, the Assembly called for her immediate release and
for her parliamentary immunity as a member of the Ukrainian parliamentary
delegation to be respected (
Resolution
2034 (2015)), citing an opinion of the Committee on Rules of Procedure.
![(21)
See the Opinion for
the Bureau of the Parliamentary Assembly on the “status of Ms Nadiia
Savchenko with regard to Council of Europe immunity”, document AS/Pro (2015) 04
declassified, 28 January 2015. The Committee here recalls the following:
members of the Parliamentary Assembly enjoy European parliamentary
immunity, based on international law, which is distinct from and
independent of any national immunity; the immunity of members of
the Assembly also extends to any proceedings initiated against them
before the beginning of their parliamentary mandate, in connection
with acts carried out by the member before the start of his or her
term of office in the Assembly, with the effect that any ongoing proceedings
are suspended for the duration of the term of office (it cannot,
however, be invoked in the case of flagrante delicto); the parliamentary
immunity of a member of the Assembly must be waived before his or
her freedom can be restricted; the Assembly alone is able to waive
the immunity of a member.](/nw/images/icon_footnoteCall.png)
The conclusions of
the committee and the Assembly confirming Nadiia Savchenko’s immunity
are contested by the Russian authorities. However, the Assembly
holds that since the competent Russian authorities did not send it
a request to waive Ms Savchenko’s parliamentary immunity, the Russian
Federation has breached its obligations under international law.
23. Another detention case referred to the Committee by the Bureau
of the Assembly is that of Ms Khalida Jarrar, a member of the Palestinian
partnership for democracy delegation, who was arrested on 2 April
2015 and placed in administrative detention in Israel further to
suspicions of involvement in the organisation of terrorist activities,
with no connection to her parliamentary work. The Committee on Rules
of Procedure concluded that Ms Jarrar could not rely on statutory
protection, since States not belonging to the Council of Europe
were not parties to either the Statute of the Council of Europe
or the 1949 General Agreement on Privileges and Immunities.
![(22)
Although the military
court ordered her release on bail on 21 May 2015, Ms Jarrar is still
in detention, as the prosecution appealed against the decision.](/nw/images/icon_footnoteCall.png)
24. The rapporteur notes that the case of Ms Jarrar is being monitored
by the Inter-Parliamentary Union’s Committee on the Human Rights
of Parliamentarians, together with some thirty other cases of members
of the Palestinian Legislative Council belonging to the same political
organisation as Ms Jarrar. Our committee might draw on the experience
and observations of this body – which has been active since 1977
in protecting parliamentarians from abuse and investigating and
ruling on any human rights violations that they may have suffered,
either individually or collectively – to consider jointly with it
how to improve protection for parliamentary action.
4. “International
sanctions”: general observations
4.1. Definition
and basis of sanctions in international law
25. Although the term has punitive
connotations, a “sanction” refers to a legal system’s response to
an illegal situation or to conduct failing to comply with standards
which is beyond criminal law. In international law, the term “sanctions”
is reserved for measures taken by the United Nations under Chapter
VII of the United Nations Charter to maintain or restore international
peace and security.
26. However, the term is commonly used in a general sense to mean
what should actually be described as countermeasures or retaliatory
measures.
27. In international law, “countermeasures” cover all diplomatic,
economic, military, cultural and other measures taken unilaterally
or collectively by one or more States or an international organisation
in response to an internationally wrongful act by another State
in order to stop a violation of international law or to ensure compliance
with a law or fulfilment of an obligation by that State.
28. A countermeasure is a sanction which would be inconsistent
with the international law obligations of the State imposing the
measures in question but which is justified, when taken in accordance
with the requirements of the international legal regime for countermeasures.
This regime is set out in Chapter II of the Articles on the Responsibility
of States for Internationally Wrongful Acts, commended by the United
Nations General Assembly in Resolution 56/83 of 12 December 2001.
![(23)
International Law Commission,
Articles on Responsibility of States for Internationally Wrongful
Acts, 2001, <a href='http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf'>http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf</a>. Article 22 (“Countermeasures in respect of an internationally
wrongful act”) provides that in certain circumstances the taking
of a countermeasure by a State injured by the commission of an internationally
wrongful act against it by another State in order to obtain its
cessation and achieve reparation for the injury is not wrongful
(even if not in conformity with an international obligation towards
that State) if and to the extent that this countermeasure is taken
in accordance with Chapter II (“Countermeasures”: Articles 49 to
54), namely that it must be non-forcible, directed at the responsible
State and not at third parties, temporary in character and as far
as possible reversible in its effects in terms of future legal relations
between the two States. Countermeasures must be proportionate and
not involve any departure from certain basic obligations, in particular
those under peremptory norms of general international law.](/nw/images/icon_footnoteCall.png)
29. Countermeasures must be distinguished from acts which merely
amount to “retorsion”. Retorsion refers to sanctions which are inconsistent
with the imposing State’s international obligations. As the International
Law Commission Commentary on the Draft Articles on the Responsibility
of States for Internationally Wrongful Acts states: “Countermeasures
are to be contrasted with retorsion (i.e. ‘unfriendly’ conduct)
which is not inconsistent with any international obligation of the
State engaging in it even though it may be a response to an internationally
wrongful act. Acts of retorsion may include the prohibition of,
or limitations upon, normal diplomatic relations or other contacts,
embargoes of various kinds or withdrawal of voluntary aid programmes.”
30. “Retaliatory measures” therefore means acts that are certainly
unfriendly, or even injurious, but definitely permitted under international
law, in response to a previous act that may also have been unfriendly
but permitted or else was internationally wrongful.
31. A detailed consideration of the international regime on countermeasures
is beyond the scope of the present report. For present purposes,
the importance of the distinction between “countermeasures” and
acts of mere “retorsion” is that it means that the international
legal regime on countermeasures will often not be relevant in respect
of many sanctions.
32. Indeed, this will often be the case in respect of a travel
ban (including a travel ban on an MP), adopted either within a set
of restrictive measures or occasionally, since there is no general
obligation under international law to admit into a State’s territory
a foreign national, save in certain limited circumstances.
![(24)
Thus, at present, international
law does not prevent third States from restricting access to their
territory for foreign parliamentarians whom they believe to be a
threat to public security, including because of their opinions.
For example, in 2006, Ukraine imposed an entry ban on the deputy
speaker of the Russian Duma Vladimir Zhirinovsky, known for challenging
the integrity and sovereignty of Ukraine. Some years earlier (1994-1998),
Zhirinovsky and other members of the Russian parliamentary delegation
were systematically refused visas by the German authorities for
transit to sessions of the Parliamentary Assembly and were given
only limited-entry visas for France, restricted to the airport and
city of Strasbourg. In 2009, the Netherlands parliamentarian Geert
Wilders, known for his anti-Islamic statements, was refused entry
to the United Kingdom when invited by the House of Lords to present
his controversial film on Islamic terrorism.](/nw/images/icon_footnoteCall.png)
States,
in general, retain discretion over their borders as an elementary
aspect of State sovereignty. A travel ban will therefore only amount
to a “countermeasure” under international law (and require justification
as such) where the receiving State is under some particular obligation
under international law to admit that person to its territory or
to permit that person to travel through its territory.
33. Lastly, we should note that countermeasures cannot affect
obligations for the protection of fundamental human rights and diplomatic
rights.
![(25)
International
Law Commission, Articles on Responsibility of States for Internationally
Wrongful Acts, Articles 50.1.b and
50.2.b.](/nw/images/icon_footnoteCall.png)
4.2. Legality
of sanctions in international law: an obligation erga omnes
34. All the measures taken by the
European Union against Russia could be described as countermeasures.
![(26)
Apart from the visa
ban, which is basically a retaliatory measure.](/nw/images/icon_footnoteCall.png)
Implemented
collectively by States that are not directly affected by the violation,
they take on a rather different outlook since they are aimed not
just at obtaining restitution, compensation or satisfaction in relation
to the right infringed but at protecting the international order
as a whole,
![(27)
As
in the case of the sanctions introduced by the United Nations Security
Council in response to old and new threats to international peace
and security, such as terrorism or the proliferation of weapons
of mass destruction.](/nw/images/icon_footnoteCall.png)
securing respect for fundamental
rights
![(28)
The role
of States in the protection of fundamental rights is not free of
uncertainty and is part of a wider debate on the role of the State
from the standpoint of positive and natural law. See Jacques Chevallier,
“Propos introductif” in Danièle Lochak (ed.), Mutations
de l’Etat et protection des droits de l’homme, CREDOF,
2007, in which he asks the question “Does the State safeguard human
rights or are human rights a safeguard against State expansionism?”](/nw/images/icon_footnoteCall.png)
and
protecting society’s ethical principles.
![(29)
As in the case of the
European Union’s autonomous sanctions against third countries such
as Myanmar.](/nw/images/icon_footnoteCall.png)
35. A countermeasure can be taken by an injured State against
an aggressor State, but the fact that it is not taken directly by
the injured party does not affect its legality, since it is an obligation
erga omnes. ![(30)
International Court
of Justice, Barcelona Traction, Light
and Power Company, judgment of 5 February 1970. The Court
drew an essential distinction between the obligations of a State
towards the international community as a whole – which, by their
very nature, are the concern of all States – and those arising vis-à-vis
another State in the field of diplomatic protection. All States
can be held to have a legal interest in their protection (paragraphs
33 and 34).](/nw/images/icon_footnoteCall.png)
An obligation
erga
omnes entitles the international community to demand
compliance with a hard core of specific human rights.
![(31)
Mention may here be
made of collective action such as the measures taken against Argentina
(1982), Iraq (1990) and the Federal Republic of Yugoslavia (1998).](/nw/images/icon_footnoteCall.png)
It
should be noted that the International Law Commission’s aforesaid
Articles on Responsibility of States for Internationally Wrongful
Acts contain no reference to an obligation
erga
omnes, since at that time, in 2001, the Commission left
the decision up to individual States as to whether and how such measures
should be used. Nowadays, all the legal authorities agree that their
use is legitimate.
4.3. Restrictive
measures adopted by the European Union
4.3.1. Legal
framework
36. Political sanctions adopted
by the European Union are known as restrictive measures and are
adopted exclusively within the context of the Common Foreign and
Security Policy (CFSP).
![(32)
The
term “sanction” is not used for similar mechanisms aimed at reducing
aid or suspending preferences under the Cotonou Agreement, the European
Neighbourhood Policy or the European Union’s generalised system
of preferences. Clara Portela, The EU’s Use of “Targeted” Sanctions:
Evaluating effectiveness, CEPS Working Documents, No. 391, March
2014.](/nw/images/icon_footnoteCall.png)
These measures may derive from implementation
of United Nations sanctions or be imposed on the European Union’s
own initiative (autonomous sanctions). It should be noted that the
European Union’s Common Foreign and Security Policy is based on
the principle of solidarity and convergence of action to which member
States have subscribed in order to safeguard the common values,
fundamental interests, independence and integrity of the Union and preserve
peace and international security.
37. Before resorting to restrictive measures, European diplomacy
employs a range of methods and instruments such as confidential
approaches, political dialogue, declarations, economic and financial assistance,
humanitarian action and human rights clauses. Restrictive measures
come into play when positive steps (both preventive and constructive),
to which the European Union gives priority, are defeated by persistent and
particularly serious human rights violations.
![(33)
Josiane Auvret-Finck,
“Les procédures de sanction internationale en vigueur dans l’ordre
interne de l’Union et la défense des droits de l”homme dans le monde”, Revue trimestrielle de droit européen,
2003, pp. 1-21.](/nw/images/icon_footnoteCall.png)
38. In the matter which concerns us here, the restrictive measures
adopted on 17 March 2014, to which additions have since been made,
have their legal basis
![(34)
See
“Basic Principles on the Use of Restrictive Measures (Sanctions)”,
adopted by the Council of the European Union in 2004.](/nw/images/icon_footnoteCall.png)
in
Article 29 of the Treaty on European Union (TEU), which empowers
the Council to “adopt decisions which shall define the approach
of the Union to a particular matter of a geographical or thematic
nature”, and the implementing regulations adopted by the Council
on the basis of Article 215 of the Treaty on the Functioning of
the European Union (TFEU), which empowers the Council to adopt restrictive
measures against natural or legal persons whilst requiring it to
provide for the necessary legal safeguards.
![(35)
Article 215.2 TFEU
reads as follows: “2. Where a decision adopted in accordance with
Chapter 2 of Title V of the Treaty on European Union so provides,
the Council may adopt restrictive measures under the procedure referred
to in paragraph 1 against natural or legal persons and groups or
non-State entities.”](/nw/images/icon_footnoteCall.png)
What we have here is an
intergovernmental approach (common position) backed up by an EU-level
approach designed to ensure uniform implementation (regulations).
39. In EU case law, if restrictive measures are directed against
a third country, they may include the country’s leaders and individuals
associated with them. The Court of Justice of the European Union
sees to it that there is a sufficient link between the individual
concerned and the regime targeted.
![(36)
See the judgments of
the Court of Justice of the European Union in the cases of Kadi and Al Barakaat International Foundation
v. Council and Commission (C-402/05 P and C-415/05 P),
2008, and Tay Za v. Council (C-376/10
P).](/nw/images/icon_footnoteCall.png)
40. The rules on restrictive measures provide a number of safeguards
for the persons concerned, including the right to an effective remedy
and an impartial tribunal, protection of personal data, information
on the reasons for listing them, the possibility of submitting observations,
and the possibility of review.
41. The Council notifies persons and entities targeted by an asset
freeze or travel ban of the measures taken against them. At the
same time, it brings the available legal remedies to their attention:
they can ask the Council to reconsider its decision by providing
observations on the listing. They can also challenge the measures
before the General Court of the European Union.
![(37)
Factsheet on EU restrictive
measures, 2014. On 22 May 2015, an action by Mr Dmitry Kiselev,
a Russian journalist targeted by EU restrictive measures, was brought
before the General Court of the European Union (Case T-262/15).](/nw/images/icon_footnoteCall.png)
4.3.2. Effective
judicial protection
42. In both the United Nations
and the European Union, the machinery of sanctions and restrictive
measures is constantly evolving, as are the safeguards surrounding
them. The situation now is very different from the context in which
the Parliamentary Assembly debated the report on the “United Nations
Security Council and European Union blacklists” in 2008.
![(38)
See the report of the
Committee on Legal Affairs and Human Rights (Rapporteur: Mr Dick
Marty, Switzerland, ALDE), Doc.
11454, and Resolution
1597 (2008). In this report, the Assembly considered the issue of
targeted sanctions against individuals or specific groups (“blacklists”)
imposed by the United Nations Security Council and the Council of
the European Union that had a direct impact on individual human
rights such as personal liberty and the protection of property. It
concluded that these targeted sanctions should respect minimum standards
of procedural protection and legal certainty, as guaranteed by the
European Convention on Human Rights and United Nations human rights
instruments.](/nw/images/icon_footnoteCall.png)
43. If we look at the case law relating to an individual’s inclusion
on or removal from the European Union’s lists of restrictive measures,
we see that it has moved significantly towards respect for procedural guarantees.
![(39)
For instance, the individuals
concerned are informed of the possibility of challenging the decision
before the Court under the conditions laid down in Article 275,
second paragraph, TFEU and Article 263, fourth and sixth paragraphs, TFEU.](/nw/images/icon_footnoteCall.png)
44. The rapporteur notes that, generally speaking, the controversial
issue was not the denial of access to justice
![(40)
From the standpoint
of the European Convention on Human Rights, the right to an effective
remedy involves first of all determining whether inclusion on the
sanctions list is a civil or criminal matter in order to establish
the applicability of Article 6 and the right to a judicial remedy.
If Article 6 is not applicable, the guarantee of an effective remedy
under Article 13 might apply, provided, however, that a violation
of a right secured by the Convention is invoked. It should be noted
that decisions regarding the entry, stay and deportation of aliens
do not concern the determination of an applicant’s civil rights
or obligations or of a criminal charge against him, within the meaning
of Article 6.1 of the Convention (see Maaouia
v. France, Application No. 39652/98, paragraph 40).](/nw/images/icon_footnoteCall.png)
but
rather the non-existence of a separate procedure for removal from
“blacklists” and, secondly, the scope and intensity of judicial
review.
![(41)
For example,
in the case of sanctions introduced by an EU regulation to give
effect to Security Council resolutions, the question was whether
review was limited to the rules relating to jurisdiction and legality,
or manifest error of assessment, or whether, to be effective, judicial
review should concern the lawfulness of the contested regulation
in the light of the fundamental rights guaranteed by the European
Union. See, inter alia, Court
of Justice of the European Union, Kadi
II case: Yassin Abdullah Kadi
v United Kingdom, Council, Commission (C‑584/10 P, C‑593/10
P and C‑595/10 P), 2013.](/nw/images/icon_footnoteCall.png)
Furthermore, before
the Treaty of Lisbon, decisions taken by States’ representatives
in the CFSP field were not subject to judicial review in the European
Union; only the regulations for implementing common positions were
open to challenge. If restrictive measures were adopted independently
by the European Union, the list of targeted individuals and entities
was appended to the CFSP decision.
![(42)
La
dimension extérieure de l’espace de liberté, de sécurité et de justice
de l’Union européenne après le Traité de Lisbonne, edited
by Catherine Flaesch-Mougin and Lucia Serena Rossi, Bruylant.](/nw/images/icon_footnoteCall.png)
In
practice, if the Court of Justice annulled the regulations in so
far as they concerned a listed individual, the Council of the European
Union revised its decision accordingly. However, although this mechanism
made it possible to achieve the desired aim, it did not satisfy
the principle of legal certainty. Today, decisions taken in pursuit
of CFSP objectives no longer escape scrutiny by the courts of the
European Union.
![(43)
The
above-mentioned Article 275 makes an exception for restrictive measures:
“the Court shall have jurisdiction … to rule on proceedings, brought
in accordance with the conditions laid down in the fourth paragraph
of Article 263 of this Treaty, reviewing the legality of decisions
providing for restrictive measures against natural or legal persons
adopted by the Council on the basis of Chapter 2 of Title V of the
Treaty on European Union.”](/nw/images/icon_footnoteCall.png)
45. In the
Kadi II appeal,
![(44)
Court of Justice of
the European Union, Kadi II judgment,
op. cit.](/nw/images/icon_footnoteCall.png)
the Court of Justice held that “the
Courts of the European Union must … ensure the review, in principle
the full review, of the lawfulness of all Union acts in the light
of the fundamental rights forming an integral part of the European
Union legal order”. Those fundamental rights include respect for
the rights of the defence and the right to effective judicial protection,
recognised in the Charter of Fundamental Rights of the European
Union. If judicial review is to be effective, the lawfulness of
the grounds for the listing decision must be reviewed.
![(45)
Ibid., paragraph 97
et seq.](/nw/images/icon_footnoteCall.png)
46. The Court of Justice went on to rule that “the essence of
effective judicial protection must be that it should enable the
person concerned to obtain a declaration from a court, by means
of a judgment ordering annulment whereby the contested measure is
retroactively erased from the legal order and is deemed never to
have existed, that the listing of his name, or the continued listing
of his name, on the list concerned was vitiated by illegality, the
recognition of which may re-establish the reputation of that person
or constitute for him a form of reparation for the non-material
harm he has suffered”.
![(46)
Ibid.,
paragraph 134.](/nw/images/icon_footnoteCall.png)
47. The rapporteur notes that this case law is consistent with
the judgments delivered recently in connection with autonomous EU
sanctions, which recommend the same approach for all types of EU
sanctions.
![(47)
General
Court of the European Union, Iran Transfo
v. Council, 16 May 2013, T‑392/11.](/nw/images/icon_footnoteCall.png)
48. In the light of the foregoing, the rapporteur considers that,
since the adoption of Assembly
Resolution 1597 (2008), the safeguards surrounding the procedure for contesting
restrictive measures, including those concerning individuals, have
been duly improved regarding respect for human rights and the rule
of law. Certain questions nevertheless remain.
4.4. The
question of individual responsibility
49. One of the key questions that
the Committee on Rules of Procedure has had to consider for this
report is the responsibility of parliamentarians (and more generally
the personal responsibility of individuals belonging to State institutions),
through their membership of a corporate body, for legal acts presumed
to be lawful. In the case giving rise to this report, the incomprehension
of the Russian members of the Assembly targeted by EU sanctions
for having performed their constitutional role calls for some clarification.
![(48)
The issue of using
military force in conflicts outside the country is obviously not
specific to the Russian parliament: it has already been debated
in other national parliaments in Europe, even if the national constitution
does not require the explicit consent of elected representatives.
In 2008, the French National Assembly, after a heated debate, came
out in favour of France keeping its troops in Afghanistan, by 343
votes to 210. In 2013, the House of Commons voted by 285 votes to
272 to reject David Cameron’s motion backing military intervention
in Syria.](/nw/images/icon_footnoteCall.png)
4.4.1. Responsibility
owing to an internal legal act presumed lawful but in breach of
international law
50. The Russian parliamentarians
acted pursuant to a provision in the Constitution referring decisions
on use of armed forces of the Russian Federation in third States
to the Council of the Federation.
![(49)
It should, however,
be noted that operational deployment of Russian armed forces beyond
the borders of the Russian Federation, in the form authorised by
domestic law, has been criticised by the Venice Commission as likely
to pose a problem in terms of both international law and democratic
control. Opinion No. 572/2010 on the Federal Law on the Amendments
to the Federal Law on Defence of the Russian Federation.](/nw/images/icon_footnoteCall.png)
51. It is a long-established principle of international law that
a State may not avoid or circumvent international responsibility
on the basis of a rule of domestic law, whatever its character.
![(50)
Article 27 of the Vienna
Convention on the Law of Treaties: “A party may not invoke the provisions
of its internal law as justification for its failure to perform
a treaty. …”](/nw/images/icon_footnoteCall.png)
Under international law, the conduct
of any State organ (and any person, group of persons or entity which
has that status in accordance with the internal law of the State)
shall be considered as an act of that State regardless what function
– legislative, executive, judicial or any other – the organ exercises,
whatever position it holds in the organisation of the State, and
whatever its character as an organ of the central government or
of a territorial unit of the State.
![(51)
International Law Commission, Articles on Responsibility of States for Internationally
Wrongful Acts, Article 4.](/nw/images/icon_footnoteCall.png)
52. In this sense, the legality or illegality of an act, measure
or conduct under domestic law is irrelevant (insofar as international
law is concerned) to the question of whether international law has
been breached. This principle is set out in Article 32 of the aforementioned
ILC’s Articles on the Responsibility of States for Internationally
Wrongful Acts. Article 32 states that “[t]he responsible State may
not rely on the provisions of its internal law as justification
for failure to comply with its obligations under this part”.
53. This rule is fundamental to the international legal system
and is reflective of customary international law. Without this rule,
a State would often be able to defend conduct inconsistent with
international law on the basis that the acts in question were consistent
with (or required by) domestic law, thereby enabling the rules of international
law to be circumvented.
![(52)
See
the case law of the Permanent Court of International Justice, which
recalls the existence of “a principle which is self-evident, according
to which a State which has contracted valid international obligations
is bound to make in its legislation such modifications as may be
necessary to ensure the fulfilment of the obligations undertaken”
(Advisory Opinion of 21 February 1925 on the exchange of Greek and
Turkish populations). In its Advisory Opinion of 3 March 1928 on
the jurisdiction of the courts of Danzig, the Court dismissed Poland’s
contention that the Danzig courts could not apply the provisions
of the agreement because they were not duly inserted in the Polish
national law, which would amount to Poland’s relying upon the non-fulfilment
of an obligation imposed upon it by an international engagement.
The International Court of Justice, in its Advisory Opinion of 26
April 1988 on the applicability of the obligation to arbitrate under
section 21 of the United Nations Headquarters Agreement of 26 June
1947, recalls “the fundamental principle of international law that
international law prevails over domestic law”.](/nw/images/icon_footnoteCall.png)
This
principle applies regardless of the character or status of the domestic
law in question. It therefore also applies where a State’s actions
are dictated by constitutional norms which are inconsistent with
international law. The precedence of international law over constitutional
law was expressly stated by the Permanent Court of International
Justice (“according to generally accepted principles, ... a State
cannot adduce as against another State its own Constitution with
a view to evading obligations incumbent upon it under international
law or treaties in force”), as well as by its successor the International Court
of Justice.
![(53)
See
the Advisory Opinion of 4 February 1932 from the Permanent Court
of International Justice on treatment of Polish nationals and other
persons of Polish origin or speech in the Danzig territory. The
International Court of Justice repeated this in 2004 in the Avena and Other Mexican Nationals (Mexico
v. United States of America), which concerned the imposition
of the death penalty on Mexican nationals in the absence of access
to consular assistance as required by the Vienna Convention on Consular
Relations 1963. The ICJ stated that “[t]he rights guaranteed under
the Vienna Convention are treaty rights which the United States
has undertaken to comply with in relation to the individual concerned, irrespective
of the due process rights under the United States constitutional
law”.](/nw/images/icon_footnoteCall.png)
54. A State’s obligations under international law remain unaffected
by rules or principles of domestic law, including, for instance,
a domestic rule providing immunity to parliament or creating a presumption
of legality as to the conduct of parliament.
4.4.2. The
individual’s position in the system of international responsibility
4.4.2.1. The
dual mechanism of State responsibility and individual responsibility
55. In traditional legal theory,
the State is held to be one and indivisible under international
law, which accepts that a State can commit an internationally wrongful
act but takes no account of the division of responsibility within
its internal system. State responsibility therefore exists, even
where a Constitution confers specific decision-making powers on
a particular organ of State, but it does not translate to individual responsibility
on the part of the members constituting it.
56. However, more recent legal theory – supported by developments
in international law, especially international humanitarian law,
and the extensive case law of the international courts – holds that
this view of the sovereign State as the sole subject of international
law is now out of date: individuals have become subjects of international
law, which means that this same law not only gives them rights (which
they can ask the courts to protect and acknowledge) but also imposes
obligations that it is able to enforce.
![(54)
As stated by the Nuremberg
International Military Tribunal: “Crimes against international law
are committed by men, not by abstract entities, and only by punishing
individuals who commit such crimes can the provisions of international
law be enforced.”](/nw/images/icon_footnoteCall.png)
Serious violations of such obligations
– extreme cases such as attacks, genocide and crimes against humanity
– render an individual criminally responsible under international
law, irrespective of the domestic law of the State concerned.
![(55)
International Law Commission,
Articles on Responsibility of States for Internationally Wrongful
Acts, Article 58 “Individual responsibility”.](/nw/images/icon_footnoteCall.png)
4.4.2.2. The
problem of shifting responsibility from the State to the individual
58. The present case – sanctions
adopted individually against parliamentarians because of an internationally
wrongful act committed by a State – gives raise to yet another issue.
59. Here we abandon the legal debate on State responsibility derived
from individuals, and the question of complicity, to enter the relatively
unexplored realm of ethical inquiry seeking to discover how the
responsibility of the State and its organs – legal abstractions
– is passed on in practice to tangible subjects, namely individuals.
![(57)
As the Permanent Court
of International Justice observed in its 1923 advisory opinion on
German settlers in Poland, “States can act only by and through their
agents and representatives”. PCIJ, Collection of Advisory Opinions,
Series B, No. 6.](/nw/images/icon_footnoteCall.png)
60. This inevitably takes us beyond the strictly legal framework
of our discussion – and therefore beyond the scope of this report.
The question nevertheless arises of the utility and effectiveness
of international “sanctions” against individuals assigned responsibility
for an internationally wrongful act: international law sees the
State solely as a single entity, and the position within the State
hierarchy of the organ that took the decision in breach of international
law does not affect attribution of responsibility to the State.
61. Nevertheless, studying the decision-making process behind
the internationally wrongful act in more political terms makes it
possible to identify the actual instigators and, prior to any “sanctions”,
single out the perpetrators – those individuals who, below the constitutional
surface, exercise the real power.
62. Some observers see individual sanctions as a moralistic tendency
in international law. Is not the contention that those citizens
who commit themselves to the objectives of the State share responsibility
for the State’s actions to further them
![(58)
“Complexity Theory
and the Horizontal and Vertical Dimensions of State Responsibility”,
Mark Chinen, The European Journal of
International Law, Vol. 25, No. 3, 2014.](/nw/images/icon_footnoteCall.png)
indicative
of a change in the system of international responsibility in which,
in the absence of any criminal responsibility, individual “sanctions”
form an adjunct to standard sanctions such as economic pressure
or suspension of treaties?
4.4.2.3. What
about individual safeguards?
63. In view of these questions,
the rapporteur is inclined to think that the conventional system
of law relating to international responsibility might require a
few adjustments in order to produce a more democratic approach.
64. For example, conventional standard-setting in international
law takes no account of the principle of legal certainty, since
States, its only subjects, do not require the same safeguards as
individuals. The same is true of the European Union’s primary legislation,
which also forms the basis for “sanctions” against individuals.
It is only EU secondary legislation and domestic laws affecting
individuals’ rights and obligations that are required to satisfy
this principle.
65. However, the rapporteur takes the view that if a “sanction”
(whether countermeasure or retaliatory measure, national or international)
affects an individual, it must satisfy the demands of legal certainty.
This principle covers four related requirements: a basis in law,
accessibility, wording that is precise enough to enable individuals
“– if need be, with appropriate advice – to foresee, to a degree
that is reasonable in the circumstances, the consequences which
a given action may entail and to regulate their conduct”,
![(59)
European Court of Human
Rights, Gorzelik and others v. Poland,
Application No. 44158/98, judgment of 17 February 2004 (Grand Chamber),
paragraph 64.](/nw/images/icon_footnoteCall.png)
and protection against arbitrariness
in the form of adequate procedural safeguards.
66. The law must indicate with reasonable clarity the scope and
manner of exercise of the relevant discretion conferred on the public
authorities so as to ensure to individuals the minimum degree of
protection to which citizens are entitled in a democratic society.
![(60)
European Court of Human
Rights, Ostrovar v. Moldova,
Application No. 35207/03, judgment of 13 September 2005, paragraph 98.](/nw/images/icon_footnoteCall.png)
67. It is clear that “sanctions” based on unfettered power pose
a problem in terms of legal certainty. In the
Al-Nashif
v. Bulgaria case, concerning deportation of an individual
on grounds of national security, the Court held that “it would be
contrary to the rule of law for the legal discretion granted to
the executive in areas affecting fundamental rights to be expressed
in terms of an unfettered power. Consequently, the law must indicate
the scope of any such discretion conferred on the competent authorities
and the manner of its exercise with sufficient clarity, having regard
to the legitimate aim of the measure in question, to give the individual
adequate protection against arbitrary interference”.
![(61)
Al-Nashif
v. Bulgaria, Application No. 50963/99, judgment of 20
June 2002, paragraph 119.](/nw/images/icon_footnoteCall.png)
68. In the present case, it should be noted that the legal provisions
underpinning visa and travel bans by both the European Union and
its member States are couched in very general terms, the latter
referring to national security and failing to specify conduct likely
to result in an individual “sanction”, particularly when arising
from wrongful conduct by a State.
69. Admittedly, the requirement of “foreseeability” does not go
so far as to compel States to enact legal provisions listing in
detail all conduct that may prompt a travel ban. By the nature of
things, threats to national security may vary in character and be
difficult to define in advance.
![(62)
Ibid., paragraph 121.](/nw/images/icon_footnoteCall.png)
For
this reason, the European Court of Human Rights assesses the legal
regime as a whole in order to ascertain whether the other elements
of legal certainty have been observed, thus compensating for the
lack of precision in the wording.
70. The EU regulation lists the individuals subject to restrictive
measures, gives the grounds and provides for a number of procedural
safeguards including judicial review. Are such safeguards, laid
down in a regulation, enough in themselves or is a broader international
legal framework required to ensure that an individual affected by
sanctions is entitled to proper status in this regard? This is a
question that the Assembly should definitely continue to consider
in a separate report.
5. Promoting
a sanctions-exempt status for parliamentarians
71. Parliamentarians have no specific
status under international law. They enjoy no international protection and
are not covered by the Vienna Convention on Diplomatic Relations
and other similar treaties. On the contrary, as the above analysis
shows, there are both national and international rules likely to
restrict any parliamentary role beyond the national level. This
situation is frustrating for the parliamentarians themselves, who
see it as a barrier to their work in the field of parliamentary
diplomacy. It is undoubtedly necessary to consider ways of improving
protection for parliamentary work in the international context.
The rapporteur has thus identified two elements that might constitute
the beginnings of a system of international protection upon which
parliamentarians could rely in the course of their international
duties: freedom of expression and (possible) immunity (whose scope
could be extended).
5.1. Freedom
of expression for parliamentarians
5.1.1. Freedom
of movement for parliamentarians as a corollary of their freedom
of expression
72. Parliamentarians’ right to
freedom of expression is so broad in scope that it is able to confound restrictions,
including retaliatory measures.
![(63)
In its Resolution 1965 (2013), the Parliamentary Assembly emphasised “its commitment
to the right to freedom of expression, which is the most important
parliamentary privilege and an essential precondition for the independence
of elected representatives of the people”.](/nw/images/icon_footnoteCall.png)
In
fact, Article 10 of the European Convention on Human Rights can
render a State liable under the Convention for both visa and travel
bans and for threats of prosecution for violation of a travel ban,
since the European Court of Human Rights has developed the concept
of a “chilling effect”, whereby some legal provisions may have an
inhibiting effect on the exercise of legitimate rights.
![(64)
European Court of Human
Rights, Klass and others v. Germany,
Application No. 5029/71, judgment of 6 September 1978; European
Court of Human Rights, Kennedy v. the
United Kingdom, Application No. 26839/05, judgment of
18 May 2010.](/nw/images/icon_footnoteCall.png)
73. The European Court of Human Rights held, in a series of cases
concerning MPs or other public figures who are refused admission
to a member State, that their right to free expression is engaged
by any such refusal. One example arises in the case of
Piermont v. France, which concerned
the imposition of a travel ban by French authorities on a German
MEP.
![(65)
European
Court of Human Rights, Piermont v. France,
Applications Nos. 15773/89 and 15774/89, judgment of 27 April 1995,
paragraph 81.](/nw/images/icon_footnoteCall.png)
74. This member of the European Parliament had been expelled from
a French territory (Polynesia) and banned from re-entering it after
having participated in an independence and anti-nuclear public demonstration. She
was subsequently refused leave to enter another French territory
(New Caledonia). The Court, noting that Ms Piermont “was not travelling
on business for the European Parliament”, held that there had been
a breach of Article 10 of the Convention, since her statement was
a contribution to a democratic debate, and that the prevention of
disorder and the upholding of territorial integrity did not justify
such an interference with her freedom of expression. The Court’s
recognition of a special status for freedom of political expression,
which enjoys reinforced protection and cannot be restricted without
compelling reasons, informs the debate about freedom of movement,
since the Court held that the measure prohibiting her from entering
the territory constituted “an interference with the exercise of
the right secured by Article 10 as, having been detained at the airport,
the applicant had not been able to come into contact with the politicians
who had invited her or to express her ideas”. With this judgment
the Court added a new dimension to freedom of expression, whereby it
necessarily entails freedom of movement so as to express and defend
one’s ideas.
75. Similarly, in the case
of Adams
and Benn v. the United Kingdom (where the first applicant,
a former parliamentarian, had been prohibited from travelling to
the Westminster Parliament to speak to a group of parliamentarians
at the invitation of one of them), the European Commission of Human
Rights held that “[t]he exclusion order imposed on the first applicant
prevented him from attending a specific meeting in the House of Commons
to which he had been invited by the second applicant. In these circumstances,
the first applicant has been subject to a restriction on his freedom
of expression and to impart information and ideas and the second applicant
to a restriction on his right to receive information and ideas,
within the meaning of the first paragraph of Article 10”.
![(66)
Decision, Applications
Nos. 28979/95 and 30343/96.](/nw/images/icon_footnoteCall.png)
76. As a result, the imposition of a travel ban on MPs (even from
a foreign jurisdiction and even in circumstances where they have
no independent right to enter the jurisdiction in question) is likely
to engage the right to free expression of both the MP on whom the
travel ban has been imposed as well as any MPs to whom the banned
MP proposed to speak or engage in dialogue.
5.1.2. Towards
more safeguards against interference with parliamentarians’ freedom
of expression?
77. However, parliamentarians would
not be automatically protected by Article 10 if they wanted to travel,
to a third State, a conflict area or an occupied territory, including
at the invitation of their counterparts. For the right to freedom
of expression is not unconditional. Even if a travel ban on a foreign
MP “engages” free expression (e.g. falls within the scope of his
or her right to free expression), in itself this does not mean that
it is impermissible. It simply means that the travel ban in question
must be “justified” by a State by reference to the requirements
set out in Article 10.2 of the European Convention on Human Rights.
Among these requirements, the most relevant for present purposes
are the requirements of (1) legality (e.g. the requirement of legal certainty
and the related requirement of non-arbitrariness) and (2) the requirement
of proportionality (e.g. that the travel ban must not amount to
a disproportionate interference with an individual’s right to free
expression).
78. Ultimately it is thus usually up to the courts to review bans
and restrictions imposed on parliamentarians and to decide, for
example, whether there has been a violation of their right to freedom
of expression. At the national level, inclusion on a travel ban
list may be reviewed by the courts, as it may in the European Union, which
has an extensive judicial review system for restrictive measures
(see section 4.3.1 above).
79. Nevertheless, the rapporteur is not persuaded that the mere
existence of judicial review will protect parliamentarians from
arbitrary decisions. Given the detrimental effects of travel restrictions
on the work that parliamentarians carry out, adequate safeguards
must be provided for parliamentarians wishing to exercise their
right to freedom of expression beyond their national borders. In
particular:
- cases in which
restrictive measures, the provisions governing travel ban lists,
or special rules on movement may restrict freedom of movement of
members of foreign parliaments must be identified, if not exhaustively
at least specifically;
- members of foreign parliaments subject to sanctions in
a third State must be notified of the existence of these measures,
together with the reasons for them;
- there must be a close association between a restrictive
measure imposed on a member of a foreign parliament and its intended
purpose. For example, national security grounds must not be used
to restrict the access of a parliamentarian who is peacefully expressing
certain political positions;
- members of foreign parliaments must be able at short notice
to submit their observations to the organ that has imposed or is
threatening to impose a restriction (particularly if the authority
in question has the power to waive the restriction);
- a restriction must be suspended while it is being challenged.
5.2. Parliamentary
immunity
80. To protect their independence,
guarantee their freedom of judgment, expression and decision and
guard against abuses of the State’s power of coercion, parliamentarians
in most member States of the Council of Europe enjoy specific immunity,
which is of two kinds: “non-liability”, meaning immunity from legal
proceedings brought for opinions expressed or votes cast in connection
with their parliamentary work; and “inviolability”, which is of
a personal nature and protects parliamentarians from arrest, imprisonment
and prosecution for offences relating to actions taken by them as
ordinary citizens. The safeguards offered by both types of parliamentary
immunity stem from the same need to ensure the independence of parliament
in performing its task and seek to guarantee the integrity and smooth
functioning of parliament.
81. The existence of immunity as an exception to the general law,
and the ethos of freely exercising their office, together with their
control over the executive, give parliamentarians the impression
that they will continue to enjoy the same privileges beyond national
borders. This impression is all the stronger in Europe, where States
have long been bound by obligations to guarantee freedom of movement,
whether through accession to treaties within the European Union
or under general obligations relating to basic human rights. However,
the reality is more complicated, and the safeguards on which parliamentarians
can if necessary rely for their “international missions” derive
not from their status of national elected representatives but entirely
from special arrangements.
5.2.1. Immunity
for members of national parliaments in another State
82. Generally speaking, national
legislation on parliamentary immunity is not considered by any of
the member States to apply abroad. Conversely, no member State has
specific provisions to protect the immunity of foreign parliamentarians
other than those arising out of customary international law or a
State’s accession to international treaties. Consequently, in a
foreign country national parliamentarians cannot rely on their national
immunity as protection against arrest, imprisonment or prosecution
for offences not connected with their parliamentary functions. Basically,
they are entitled only to the protection attaching to any other
citizen of their country.
83. However, travel in a foreign country by members of national
parliaments is not devoid of a certain number of rights and safeguards.
These differ depending on the circumstances.
5.2.2. Travel
as a State official
84. If national parliamentarians
travel as State officials within the meaning of the relevant conventions
or customary international law, they are entitled to extensive protection,
including personal inviolability, immunity from legal process (criminal
proceedings and, in some cases, civil and administrative proceedings),
immunity of premises and freedom of movement. Here the status of
State official is superimposed on that of parliamentarian. In other
words, it is the status of State official rather than parliamentarian
that determines conferment of diplomatic privileges and immunities.
In such cases, individuals who happen to be parliamentarians are,
by engaging in ad hoc diplomatic missions, acting on behalf of a
subject of international law.
85. For example, a parliamentarian may be a special envoy, an
observer or a delegate to an international conference or be on an
official, ceremonial or any other mission. However, all travel abroad
by parliamentarians does not automatically benefit from such protection.
86. The 1969 United Nations Convention on Special Missions lays
down strict criteria for what is termed a “special” mission: it
must be sent by one State to another State with the consent of the
latter for the purpose of dealing with it on specific questions
or of performing in relation to it a specific task, it must be temporary
and it must represent the State (Article 1). A special mission must
be described as such by the receiving State and the sending State.
Although the convention has not had a great number of accessions,
it is based on the rules of customary international law, which continue
to govern questions not regulated by this convention.
![(67)
Preamble, last paragraph.](/nw/images/icon_footnoteCall.png)
87. It should be added that parliamentarians who are members of
a permanent mission to a foreign State or international institution
cannot be considered part of a special mission.
![(68)
International Law Commission,
“Draft articles on special missions”, Yearbook
of the International Law Commission, 1967, Vol. II, p. 348.](/nw/images/icon_footnoteCall.png)
88. On a different note, mention may also be made of the United
Nations Convention on the Privileges and Immunities of the Specialized
Agencies, which covers nine named United Nations specialised agencies
and refers to “representatives of members at meetings convened by
a specialized agency”. Thus, if national parliamentarians are sent
as experts by their governments to attend a meeting of a specialised
agency, they will be given a status modelled on diplomatic status
to guarantee their independence while carrying out their functions
in connection with the agency. These individuals will be entitled
to immunity from personal arrest or detention, inviolability for
all papers and documents, immunity from legal process and tax exemption
for their work for the agency.
89. The diplomatic rights to which parliamentarians are entitled
cannot be affected by any countermeasures taken against a State
(and covering parliamentarians).
![(69)
International Court
of Justice, judgment on United States diplomatic and consular staff
in Tehran, 24 May 1980.](/nw/images/icon_footnoteCall.png)
It should, however, be
noted that the receiving State may, without having to explain its
decision, declare
persona non grata any
representative of the sending State for the purposes of the mission
or declare any other member of staff of the mission not acceptable
either before or after the mission has arrived.
![(70)
UN Convention on Special
Missions, Article 12; Vienna Convention on Diplomatic Relations,
Article 9.](/nw/images/icon_footnoteCall.png)
90. To return to practicalities, it should be noted that fact-finding
missions and parliamentarians’ missions at the invitation of private
entities, including political groups and parties, would not be entitled
to special mission status.
91. A parliamentarian’s status of State official determines the
applicability and extent of immunity from foreign criminal jurisdiction.
At present it seems too early to comment on this subject, since
the International Law Commission has undertaken a wide-ranging study
![(71)
“Immunity of State
officials from foreign criminal jurisdiction”, summary of work: <a href='http://legal.un.org/ilc/summaries/4_2.shtml'>http://legal.un.org/ilc/summaries/4_2.shtml#a12.</a>](/nw/images/icon_footnoteCall.png)
with the purpose of providing answers
in all the various fields of controversy and identifying the extent
of this immunity and the circle of individuals entitled to it. However,
it is unlikely that parliamentarians on private visits would be
entitled to immunity from foreign criminal jurisdiction.
5.2.3. Travel
at the invitation of an organisation having a headquarters agreement
92. This is another situation in
which the status of official guest takes precedence over the status
of parliamentarian. A number of international organisations have
headquarters agreements requiring the host State not to impede access
to the organisation’s headquarters by its members or invited experts.
93. The Council of Europe and the United Nations Educational,
Scientific and Cultural Organization (UNESCO) possess such agreements.
![(72)
Under Article 9 of
the Agreement between the Government of the French Republic and
UNESCO regarding the Headquarters of UNESCO and the Privileges and
Immunities of the Organization on French Territory, “the competent French
authorities shall not impede the transit to or from Headquarters
of any persons having official duty at Headquarters or invited there
by the Organization”. Article 5 of the Special Agreement relating
to the Seat of the Council of Europe contains similar provisions.](/nw/images/icon_footnoteCall.png)
There
is currently some discussion as to whether such a clause also guarantees
immunity from prosecution and detention for wanted persons or subjects
of arrest warrants. However, it undoubtedly rules out travel bans
by States.
![(73)
For
example, in April 2014, Mr Naryshkin, Speaker of Russia’s State
Duma and covered by the EU visa ban, attended a UNESCO meeting to
mark the sixtieth anniversary of the USSR’s accession to that organisation.
Conversely, Ms Matviyenko, Speaker of Russia’s Council of the Federation,
did indeed receive a US visa to visit the United Nations headquarters
to attend the World Conference of Speakers of Parliament at the
beginning of September 2015, but it was limited strictly to the
duration of this United Nations event, thus preventing her from
attending any other events or meetings organised in conjunction
with it by other non-UN organisations.](/nw/images/icon_footnoteCall.png)
5.2.4. Clarification
concerning the diplomatic passport
94. It is common for possession
of a diplomatic passport to be confused with entitlement to various
kinds of immunity, including immunity from legal process. But immunity
is based on the position held by the individual possessing it. A
diplomatic passport is a travel document that facilitates travel
for its holder. The fact that this document does not confer certain
privileges is owing to the wide range of rules governing its issue
and the variable scope of individuals entitled to it, which, at
present, are entirely at the State’s discretion.
95. As far as parliamentarians are concerned, some countries have
strict rules, including the United States, where diplomatic passports
are issued to national elected representatives only if they are
attending international conferences as official government representatives.
In other countries, automatic issue is conditional on holding a
special office within parliament, such as Speaker or Deputy Speaker,
or Chair of the Foreign Affairs Committee (Austria, Belgium, Cyprus,
Denmark, France, Spain and Sweden), being a member of a delegation
to an international institution (Switzerland) or being a member
of government (Finland). Other parliamentarians can usually request
a diplomatic passport if they can produce proof of an official mission. Lastly,
in a large number of European countries the right to a diplomatic
passport is granted to all national elected representatives (Andorra,
Czech Republic, Georgia, Germany, Greece, Hungary, Latvia, Lithuania, Luxembourg,
Republic of Moldova, Netherlands, Poland, Portugal, Romania, Russian
Federation, Slovak Republic, Slovenia, “the former Yugoslav Republic
of Macedonia”, Turkey and Ukraine).
96. It should be noted that it is the capacity in which a parliamentarian
is travelling rather than his or her travel document that will be
considered when determining the scope of guarantees.
5.2.5. Unofficial
travel as a parliamentarian at the invitation of the host country
97. Parliamentarians may sometimes
have occasion to travel to a foreign country without their journey
being regarded by their home country as official or representing
an institution or the government. However, by issuing an official
invitation or accepting a visit, the authorities are implicitly
agreeing to guarantee a parliamentarian’s legal and physical protection.
In such cases, the parliamentarian’s status will depend not on any
particular treaty but on the practices adopted by the country concerned.
Usually a parliamentarian will be entitled to personal immunity
at the very least, or even the same treatment as the host country’s
members of parliament.
5.2.6. Unilateral
declarations
98. Under international law, States
have a tool known as “unilateral declarations”, which enable them
to accept or create rights or obligations or, conversely, limit
or exclude them. Regardless of their wording or designation, such
unilateral declarations create for States which voluntarily accept
them international legal obligations in relation to one or more
States or other international entities. This tool therefore makes
up for the lack of a statutory framework or the inability to draw
one up on time. For instance, under the European Union’s Common
Security and Defence Policy, unilateral declarations are used to
safeguard the immunities and privileges of the staff of missions
in host States pending the negotiation and conclusion of the agreements
on the status of the relevant missions. If applied to the case of
foreign elected representatives, including delegations holding observer
or partner for democracy status with the Parliamentary Assembly,
this practice would make it possible both to strengthen the protected
status of parliamentarians on official journeys without having recourse
to the negotiation of new treaties or the revision of existing ones
and also to take account of the internal context specific to the
Council of Europe.
![(74)
See
the Guiding Principles applicable to unilateral declarations of
States capable of creating legal obligations, International Law
Commission, 2006.](/nw/images/icon_footnoteCall.png)
5.2.7. Travel
as a member of an international assembly
99. In 1939, only three international
parliamentary institutions were in existence: the Inter-Parliamentary Union,
the Nordic Inter-Parliamentary Union and the Commonwealth Parliamentary
Association. There are now over a hundred formal and informal parliamentary
forums,
![(75)
Clauda
Kissling, The Legal and Political Status of International Parliamentary
Institutions, 2011.](/nw/images/icon_footnoteCall.png)
with differing legal forms,
structures and remits. Some are governed by national private law
while others were set up under international treaties concluded
by the States concerned. The greater the extent to which a body
is integrated into the international intergovernmental context,
the more it benefits from diplomatic immunities and privileges,
which will be recognised in a headquarters agreement,
![(76)
Agreement between the
Swiss Federal Council and the Inter-Parliamentary Union of 28 September
1971; President Clinton’s Executive Order No. 13097 of 7 August
1998 on the Inter-Parliamentary Union.](/nw/images/icon_footnoteCall.png)
a treaty
![(77)
Institutionalisation
Treaty of the Latin American Parliament; Benelux Parliament.](/nw/images/icon_footnoteCall.png)
or
its protocol.
![(78)
Protocol
concerning the Privileges and Immunities of the Parliamentary Assembly
of the Black Sea Economic Cooperation.](/nw/images/icon_footnoteCall.png)
100. Privileges and immunities, including the free movement of
members of assemblies in fulfilling their duties, cannot be guaranteed
without the explicit consent of the State or group of States concerned.
This privilege derives from the discretionary power of States to
control their borders, as enshrined in public international law,
![(79)
The following wording
is used in all international texts, not least the Charter of the
United Nations, Article 2.1: “The Organization is based on the principle
of the sovereign equality of all its Members.”](/nw/images/icon_footnoteCall.png)
although
this discretionary right could be restricted by the imperatives
of humanitarian law and fundamental rights.
![(80)
European Convention
on Human Rights, Article 8, “Right to respect for private and family
life”.](/nw/images/icon_footnoteCall.png)
101. A discussion of the Protocol on the Privileges and Immunities
of the European Union is perhaps less pertinent to this report given
the special arrangements for movement that exist between member
States of the European Union. The General Agreement on Privileges
and Immunities of the Council of Europe is relevant, on the other
hand, since the extensive guarantees offered by signatory States
concerning free movement of members of the Parliamentary Assembly
and their protection from arrest and prosecution thwart both visa
and travel bans as well as prosecution for failure to comply with
rules on entry and movement, such as the legislation on occupied
territories.
102. The Committee on Rules of Procedure has already been called
upon to examine cases of restriction on movements of members of
the Parliamentary Assembly and has here emphasised the existence
of an obligation by member States to recognise and protect both
the immunity and freedom of movement of members of the Assembly:
![(81)
Cases of Mr Sergey
Markov, who was unable to travel to Georgia to attend a meeting
of a Parliamentary Assembly committee in September 2010 following
the refusal of the Georgian authorities to issue a visa for him
(see the committee’s opinion for the Bureau, AS/Pro (2010) 16 def),
of Mr Vassiliy Likhachev, who was unable to participate in the pre-electoral observation
mission for the presidential election in Georgia in September 2013
owing to the Georgian authorities’ threat to arrest and prosecute
him if he entered Georgian territory (see the committee’s opinion
for the Bureau, AS/Pro (2013) 20 def), and of Mr René Rouquet, who
was unable to attend Parliamentary Assembly meetings at Baku in
May 2014 because his visa was cancelled by the Azerbaijani authorities.](/nw/images/icon_footnoteCall.png)
in
the case of members duly accredited by the Assembly, under the Statute
of the Council of Europe and the General Agreement on Privileges
and Immunities of the Council of Europe and its Protocol, all Council
of Europe member States have undertaken to guarantee free movement
of members of the Assembly; consequently, when a member State hosts
a meeting or an official event organised by the Assembly, it must
facilitate the participation of members of the Assembly, issue the
visas required for their entry onto its territory and also guarantee
the immunity of members of the Assembly against any legal proceedings or
measures for their arrest or detention in keeping with its obligations
under public international law.
103. Thus, by means of this Council of Europe agreement, the members
of the Russian delegation included on the EU sanctions list are
nevertheless able to participate in the Assembly’s work: Mr Naryshkin
and Mr Slutsky were able to travel to Paris in September 2014 to
attend a Monitoring Committee meeting and to Strasbourg for the
opening of the Assembly’s 2015 session.
104. However, although the exceptional arrangements provided for
in this type of agreement enable parliamentarians subject to bans
to take part in international events and thus maintain dialogue
with their interlocutors, the rapporteur deplores the fact that
the European Union’s restrictive measures, together with entry ban
lists and threats of prosecution for having exercised freedom of
movement, are inevitably, and regrettably, restricting a number
of interparliamentary contacts, which may undermine the effectiveness
of parliamentary diplomacy, encourage division and be an impediment
to seeking a solution to the problem that gave rise to the sanctions
in question. It should also be pointed out that other parliamentary
forums do not have treaty instruments of this sort and all bilateral
and multilateral dialogue with them has been suspended.
105. In conclusion, the rapporteur believes that debate should
continue, on the basis outlined above, in both the Council of Europe
and other international spheres to ensure that the specific nature
of international parliamentary work is taken into account and that
those who perform it are given adequate rights and safeguards.
6. Expanding
the code of conduct for members of the Parliamentary Assembly?
106. The rapporteur takes note of
the growing number of disputes involving members of the Parliamentary Assembly
laying claim to their freedom of movement at the risk of national
criminal or administrative proceedings, whether or not these members
were accredited by the Assembly for travel (or attempted travel) in
a member State of the Council of Europe. It is clear that these
cases are directly connected with travel by these parliamentarians
in areas of “frozen” conflict, namely occupied or seceding territories
not recognised by the international community.
107. Doubtless an international organisation such as the Council
of Europe, and an interparliamentary forum such as its Assembly,
may be expected to offer a more appropriate framework for debate
than national parliaments themselves in order to determine the rights,
obligations and conduct of parliamentarians – and the obligations
of States – in this very specific context in which arguments are
made in good faith, on both sides, for compliance with international
law. At the same time, the commitment of member States to co-operating
with the Assembly is called into question when these States impose
travel restrictions on members of the Assembly travelling officially
for the latter.
108. The rapporteur also wishes to raise the role and limitations
of the code of conduct for members of the Parliamentary Assembly
in the handling of recent cases involving members of the Assembly
who had infringed national legislation in connection with their
parliamentary work but unrelated to their duties in the Assembly.
109. It is therefore necessary to continue the debate, doubtless
beyond the ambit of this report, in order to study the advisability
of, on the one hand, expanding the code of conduct as far as obligations
of members of the Assembly are concerned, and, on the other, producing
guidelines on official travel by members of the Assembly in Council
of Europe States as far as member States’ commitment to co-operate
is concerned. This was the remit given to the committee on 31 August
2015 by the Bureau of the Assembly, which asked it to prepare an
opinion on challenges to member States’ co-operation with the Assembly
regarding freedom of movement for members of the Assembly.
7. Proposals
110. Under international law, sovereign
power is vested solely in the State, and this affects the ability
of members of parliament to act beyond the national framework. Nevertheless,
the internationalisation of parliamentary work over the past few
decades has impelled States gradually to abandon the traditional conception
of diplomacy. This fact, discussed above, highlights the inadequacy
of the international legal framework within which national parliamentarians
are working, owing, in particular, to the lack of an international
status for parliamentarians and the fragmented nature of their rights
and freedoms outside national borders. This is prejudicial to the
principle of legal certainty and fuels uncertainty as to the existence and
extent of parliamentarians’ rights and privileges in relation to
third States.
111. Now that parliamentarians are increasingly accountable for
their acts and decisions, with the possibility that they may be
individually responsibility under international law, it is time
to discuss the introduction of an international status for parliamentarians
in international public law. The discussions being held by the United Nations
International Law Commission on immunity of State officials from
foreign criminal jurisdiction, for example, are undeniably a step
in this direction.
112. The rapporteur recognises that such discussions could come
up against the basic objection that this special status might override
other considerations such as the principles of non-discrimination
and equality before the law. Why introduce special protection for
parliamentarians? Firstly, because conferment of such international
status is based on the need to guarantee the independence of every
national parliament in performing its role. Secondly, if a parliament’s
actions can create State responsibility, should that parliament not
in turn benefit from the immunity of the State to protect its members
more durably?
113. In the light of the foregoing, the rapporteur would propose
that the Assembly:
- recommends
that member States:
a. study the question of the
rights and obligations of a foreign country’s national elected representatives travelling
in their countries in order to grant them adequate safeguards for
carrying out their duties freely and effectively beyond their national
borders, including freedom of movement and expression and personal
immunity, as required by the European Convention on Human Rights
and the case law of the European Court of Human Rights;
b. guarantee members of foreign parliaments subject to restrictive
measures, such as inclusion on a visa or travel ban list, effective
judicial protection by making provision for a transparent listing
and appeal procedure;
- encourages the Inter-Parliamentary
Union to develop and promote a set of rules applicable to parliamentarians
travelling abroad on a professional basis so as to foster interparliamentary
international co-operation and support the engagement of national
elected representatives in parliamentary diplomacy;
- calls on national parliaments to:
a. step up advice and support
for the conduct of journeys by parliamentarians outside their own
countries by putting in place guidelines and, where applicable,
appropriate training for members of parliament and the departments
concerned;
b. continue internal discussions on ways of making institutional
policy more consistent and implementing strategy in the area of
the development of parliamentary diplomacy.
114. The rapporteur also believes
there is a need to invite the Committee of Ministers to:
a. remind Council of Europe member
States of their commitments under the General Agreement on Privileges
and Immunities and the Protocol thereto (ETS No. 10), and their
active role in facilitating travel by members of the Parliamentary
Assembly;
b. launch a feasibility study on the creation of an international
status for parliamentarians, which could be carried out by the Council
of Europe’s Committee of Legal Advisers on Public International
Law (CAHDI);
c. urge member States, in order to make up for the shortcomings
in the international regulations, to make use of unilateral declarations
so as to expand the immunities and privileges of foreign elected representatives
on official journeys in their territories.
115. Lastly, the Committee on Rules of Procedure might consider
the advisability of expanding the code of conduct for members of
the Parliamentary Assembly and producing guidelines on official
travel by members of the Parliamentary Assembly in Council of Europe
member States. The rapporteur believes that these very specific
issues should not be developed further in this report but should,
at least initially, be addressed in an opinion for the Bureau of
the Assembly in conjunction with the Bureau’s request to examine
challenges to member States’ co-operation with the Assembly regarding
freedom of movement for members of the Assembly.