The massive and flagrant violations of human rights in the territory of former Yugoslavia and on the creation of a transitional mechanism for the protection of human rights in non-member states of the Council of Europe
REPORT
Doc. 6743
20 January 1993
Rapporteur: Mrs HALLER, Switzerland, Socialist
Problems and solutions
The massive violations of human rights in the territory of former Yugoslavia is a matter of great concern to the Parliamentary Assembly of the Council of Europe. Although other international organisations have already taken the initiative of proposing solutions, the Council of Europe has a specific role to play in human rights matters, which is a field of activities in which it is unanimously recognised to be competent.
Therefore the Parliamentary Assembly proposes that the following action be taken:
- establishment of transitional human rights protection machinery for states that are not members of the Council of Europe,
- setting up of an ad hoc sub-committee on human rights in former Yugoslavia.
I. Draft recommendation on the creation of a transitional mechanism for the protection of human rights in non-member states of the Council of Europe [link to adopted text]
1. The Assembly declares its profound consternation at the massive and flagrant violations of human rights in the territory of former Yugoslavia and at the perpetration of crimes against humanity such as the murder of innocent victims, concentration camps, torture, the systematic rape of women belonging to minority groups as a deliberate means of destroying these minorities, "ethnic cleansing" and the deportation of entire populations.
2. The newly emerging currents of xenophobia, racism, racial ideology and nationalism in Europe are endangering human rights to a degree not witnessed in Western Europe since the second world war and this in turn affects the fundamental values of democracy and the rule of law, which may have fateful repercussions beyond Europe.
3. The Assembly considers that the Council of Europe's most important and urgent task, in the light of its vocation and experience, is above all to provide legal enforcement mechanisms in the field of human rights, something the Council of Europe alone among European international organisations is in a position to do.
4. It is aware of the particular responsibility which rests with the Council of Europe in relation to the protection of human rights throughout Europe and is convinced of the need to provide legal channels for dealing with violations of human rights committed in European states which are not members of the Council of Europe.
5. Reference should be made in this context to the proposal made by Lord Owen, co-Chairman of the International Conference on Peace in Former Yugoslavia, on 3 October 1992, to set up ad hoc human rights protection machinery for European non-member states of the Council of Europe.
6. Attention should also be drawn to Assembly Recommendation 1183 (1992) on access by European non-member states to institutions operating under certain Council of Europe conventions relating to human rights, which originated in a discussion between the Parliamentary Assembly delegation and the heads of delegations at the CSCE Conference on the Human Dimension in Moscow in October 1991.
7. The gravity of the situation requires urgent action and consequently an unbureaucratic, rapid approach must be adopted and the existing experience made use of in an appropriate form. The rules of procedure for the transitional machinery should not be determined by the Committee of Ministers alone, but instead should as far as possible be left to the bodies acting within the framework of the new machinery.
8. The Assembly also draws attention to Recommendation 1189 (1992) on the establishment of an international court to judge war crimes and notes with satisfaction the Committee of Ministers' declaration of 11 September 1992 as well as the follow-up to this recommendation.
9. In conclusion, the Assembly recommends that the Committee of Ministers:
i. create as a matter of urgency, transitional human rights protection machinery for states that are members of the CSCE but not members of the Council of Europe, in keeping with the considerations set out in Doc. 6743;
ii. restrict the formal framing of rules of procedure for this transitional machinery to the minimum, leaving the establishment of the relevant informal procedural guidelines as far as possible to the subscribing states' human rights committees that will operate within the framework of this machinery;
iii. ask the governments of the member states to intercede at the United Nations to ensure that emergency measures are taken to halt the massacre in Bosnia-Herzegovina and effectively protect the population against human rights violations, along with preventive measures to stop these violations spreading to other parts of the territory;
iv. do its utmost to give urgent attention to the Council of Europe's two other most pressing tasks:
a. more efficient organisation of the existing machinery under the European Convention on Human Rights as called for by the Parliamentary Assembly in Recommendation 1194 (1992);
b. creation of an additional protocol to the European Convention on Human Rights on the rights of minorities, as the Parliamentary Assembly has already called for in Recommendations 1134 (1990), 1177 (1992) and .... (1993).
II. Draft resolution on the massive and flagrant violations of human rights in the territory of former Yugoslavia [link to adopted text]
1. The Assembly declares its profound consternation at the massive and flagrant violations of human rights in the territory of former Yugoslavia and at the perpetration of crimes against humanity such as the murder of innocent victims, concentration camps, torture, the systematic rape of women belonging to minority groups as a deliberate means of destroying these minorities, "ethnic cleansing" and the deportation of entire populations.
2. The newly emerging currents of xenophobia, racism, racial ideology and nationalism in Europe are endangering human rights to a degree not witnessed in Western Europe since the second world war and this in turn affects the fundamental values of democracy and the rule of law, which may have fateful repercussions beyond Europe.
3. The Assembly considers that the Council of Europe's most important and urgent task, in the light of its vocation and experience, is above all to provide legal enforcement mechanisms in the field of human rights, something the Council of Europe alone among European international organisations is in a position to do.
4. The Assembly refers to the work of the United Nations Commission on Human Rights and in particular to the reports on the human rights situation in the territory of former Yugoslavia, drawn up by Mr Tadeusz Mazowiecki as special rapporteur, as well as to the work of the commission of enquiry to establish war crimes in Yugoslavia that has been set up by the United Nations Security Council. It welcomes the decision of its Committee on Legal Affairs and Human Rights to create an ad hoc sub-committee on the human rights situation in former Yugoslavia.
5. Accordingly, the Assembly
i. launches a solemn appeal to all parties to the conflict in the territory of former Yugoslavia to respect the Geneva Conventions on humanitarian law;
ii. condemns most strongly the massive and flagrant violations of human rights on the territory of former Yugoslavia, mainly by the Serbian militia in Bosnia-Herzegovina;
iii. strongly supports the efforts of the international agencies working to restore peace in former Yugoslavia and in particular the International Conference on Peace in Former Yugoslavia.
III. Draft order on the protection of human rights[link to adopted text]
The Assembly, referring to its Recommendation ... (1993) on the creation of a transitional mechanism for the protection of human rights in non-member states of the Council of Europe and to its Resolution ... (1993) on the massive and flagrant violations of human rights in the territory of former Yugoslavia, instructs its Committee on Legal Affairs and Human Rights to further pursue and actively expedite the work of creating a transitional mechanism for the protection of human rights in Council of Europe European non-member states and setting up a court to judge war crimes in accordance with Recommendation 1189 (1992).
IV. Explanatory memorandum
by Mrs HALLER
1. Introduction
As soon as the massive and flagrant violations of human rights in the territory of former Yugoslaviacame to light in the course of the summer of 1992, they caused such a justifiable and necessary outcry that various international bodies - both world-wide and European - took initiatives to attempt to end the conflict, to allow humanitarian aid to reach the intended recipients, but also to provide legal means of action and to advocate the prosecution of war criminals.
More than any other organisation the Council of Europe feels concerned by the situation in this region, firstly because of its geographical situation and secondly, because of the role it plays in safeguarding human rights.
At the autumn session, the Committee on Legal Affairs and Human Rights requested an emergency debate on the human rights situation in former Yugoslavia. The Parliamentary Assembly turned down this request and in keeping with the opinion of the Assembly Bureau decided to hold a current affairs debate. This debate took place on 3 October 1992 and was attended by Lord Owen, the co-Chairman of the International Conference on Peace in Former Yugoslavia. He proposed that the Council of Europe provide European non-member states with an ad hoc mechanism for the protection of human rights.
The idea of extending the mechanism for the protection of human rights offered by the European Convention on Human Rights to European non-member states was brought up for the first time during an exchange of views between a Parliamentary Assembly delegation and the heads of delegation at the CSCE Conference on the Human Dimension in October 1991 in Moscow and inspired Recommendation 1183 on access by European non-member states to institutions operating under certain Council of Europe conventions relating to human rights adopted by the Parliamentary Assembly on 5 May 1992.
Lord Owen's proposal is a direct follow-on from the stated aim of this recommendation to make the protection mechanism of the European Convention on Human Rights, the most elaborate that exists, available in an appropriate, legally adopted form to states that wish to move towards European standards in the field of human rights.
At its meeting of 5 November 1992, the Standing Committee held an emergency debate on the situation in former Yugoslavia and adopted Recommendation 1198 and Order No. 483 on the crisis in former Yugoslavia. By its order, it instructs the Committee on Legal Affairs and Human Rights to submit to it at the 4th part of the 44th ordinary session (February 1993) a report on the proposals made by Lord Owen to the Assembly on 3 October 1992 relating to the judicial protection of human rights in Bosnia-Herzegovina and the establishment of a court to judge war crimes and crimes against humanity perpetrated in the territory of former Yugoslavia.
The Rapporteur visited Geneva on 7 December 1992 and met Lord Owen, who reiterated his hope that the Council of Europe would soon offer a mechanism for the protection of human rights both for countries that already enjoy special guest status and for those that might request it in future.
Whilst he was in favour of an international court with world-wide competence to judge war crimes and crimes against humanity, he suggested that the Assembly submit a proposal for instituting a court at European level, fearing that the procedure within the United Nations might take too long. However, one may welcome the adoption by the General Assembly of the United Nations on 17 December 1992 of a resolution on an international tribunal to judge war crimes and crimes against humanity perpetrated in Boznia-Herzegovina.
2. Basic considerations
The Parliamentary Assembly must formally and emphatically condemn the massive violations of human rights in former Yugoslavia. The newly emerging currents of xenophobia, racism, racial ideology and nationalism in Europe are endangering human rights to a degree not witnessed in Western Europe since the end second world war. This in turn affects the fundamental values of democracy and the rule of law, which may have dire repercussions beyond Europe.
The systematic rape of women belonging to minority groups as a means of destroying these minorities represents a new kind of war crime.
In the light of this, Europe should ensure that national borders that have been changed by acts of war are never recognised. Moreover, recognition should never be granted to states - if the fundamental concept of human rights is not to be jeopardised - whose borders have been fixed on the basis of ethnic criteria and particularly on the basis of ethnically motivated acts of murder - dubbed "ethnic cleansing" by the perpetrators, although one should refuse to use the expression in this sense.
The situation also illustrates how closely human rights are linked to the minorities issue. It is essential to make one thing perfectly clear in this connection: the notion that the continued existence of a state might only be possible if its population is ethnically, culturally and religiously homogeneous is already in itself a violation of human rights. The basic legal definition of human rights necessarily includes a multicultural, multiethnic and multidenominational vision of what constitutes a state. This also applies to regions and to the individual constituent states in a federal state.
One of the most special and important duties of every state which recognises human rights is to guarantee this cultural diversity and enable ethnic and religious variety to exist. In this respect, that is in terms of tolerance between the inhabitants of a state, the very notion of human rights necessarily entails as it were, the applicability of such rights as between private individuals.
It is undoubtedly right that the Council of Europe is now engaged in its geographical enlargement and considering to what extent it, as an organisational structure, could contribute to the greater common Europe that is under construction. In doing so, however, it should not neglect its specific task, namely the safeguarding of human rights, not so much by political means as through legal protection mechanisms. Protecting human rights through legal protection mechanisms in any case represents the Council of Europe's most important and exclusive task because such mechanisms have been developed to a greater extent in the framework of the Council of Europe than anywhere else and because no other organisation is in a position or experienced enough to guarantee this kind of human rights protection.
As Central and East European states join the Council of Europe, its human rights protection machinery is put to the test to a degree unparalleled since its foundation. Only now will it finally become clear whether these mechanisms can fulfil the expectations placed in them.
In the light of the above reflections on the minorities issue, it should be perfectly clear that the Council of Europe currently has three pressing tasks:
- more efficient organisation of the existing mechanisms under the European Convention on Human Rights, as called for by the Parliamentary Assembly in Recommendation 1194;
- drafting of an additional protocol to the European Convention on Human Rights on the protection of minorities, as already called for by the Parliamentary Assembly in Recommendations 1134 and 1177;
- creation of a transitional mechanism for the protection of human rights in non-member states of the Council of Europe in accordance with the present report.
The climate today is favourable for tackling these three most urgent tasks. Europe now stands aghast at the systematic violations of human rights in former Yugoslavia, which are reaching a level that no one would have thought again possible after the second world war. Europe has to overcome its understandable dismay and the Council of Europe must draw strength from the shock of these terrible events and lose no time in performing its three most urgent tasks for the protection of human rights.
3. Transitional mechanism for the protection of Human Rights in non-member states of the Council of Europe
When Recommendation 1183 on access by non-member states to human rights protection machinery was adopted in May 1992, the human rights violations in the former Yugoslavia were such a burning issue as today. The idea has now taken on a fresh urgency with recent events and the report of Lord Owen to the Parliamentary Assembly.
It would, however, be a grave error of political judgment, from the point of view of safeguarding human rights in Europe, if such a mechanism were only established for the territory of Bosnia-Herzegovina, as has sometimes been suggested. The validity of human rights depends after all on their identical application to all states and on their international universal nature. Therefore, the creation of a system machinery that is only applicable to one state is a contradiction in terms of the principle of protecting human rights by legal procedures.
It is extremely important to ensure that any new mechanism remains quite separate from the protection machinery provided for under Articles 25 and 46 of the convention. Otherwise, there would be a danger that the achievements of the formal machinery of Articles 25 and 46 might be undermined as a result of the necessarily more informal and less constraining procedures applying to non-member states. This must be avoided at all costs.
Similarly, it must be ensured that the existence of a new mechanism does not disincline non-member states from joining the Council of Europe from ratifying the convention and making the declarations under Articles 25 and 46 once they have become members. The proposed mechanism for the protection of human rights in non-member states must not be allowed to develop into a preliminary stage, at which states can comfortably linger because the demands of human rights have, after all, been outwardly satisfied. The new system must therefore be subject to a time limit of two to five years for the states that want to subscribe to it. It might sensibly be described as a "transitional mechanism", thereby making its temporary nature clear from the choice of name. The term "Transitional mechanism for the protection of human rights for non-member states of the Council of Europe" is thus used in this report. In this way, it is kept clearly separate from the machinery provided for under Articles 25 and 46 of the convention.
The substantive judgment of human rights violations should, on the one hand, be made on the basis of the rights enshrined in the convention, as in proceedings in accordance with Articles 25 and 46 of the convention. On the other hand, however, as this is a completely informal process, it should be possible to take other principles of international law into consideration, in particular United Nations human rights covenants or other legal instruments relating to international humanitarian law or even such instruments for the protection of minorities as might be adopted by the Committee of Ministers.
In terms of form, the new mechanism calls for a different and more informal structure than the present procedure before the Commission and Court of Human Rights. Lord Owen's suggested solution whereby an individual judicial-type body might be created for each state that wishes to subscribe to the new mechanism, to which both members of the Commission and the Court and representatives of the states concerned would belong, seems today to make sense. In its report accompanying Recommendation 1183, the Committee on Legal Affairs had envisaged that the Court as a whole might be called upon to act. In view of the multiplicity of problems in the various countries, this approach should be abandoned, not least because in this way both mechanisms will come across as clearly distinct.
The present report refers to the individual boards for the subscribing countries as "human rights committees" in order to make it clear that they are quite separate from the Commission and Court of Human Rights. The Appendix to this report contains further considerations relating to the technical details.
The transitional human rights protection mechanism for non-member states must be of informal design and also remain informal if it is not to compete with or supplant the formal machinery. The Committee of Ministers should therefore limit itself to creating this transitional mechanism by means of a simple Resolution and invite members of the CSCE that do not belong to the Council of Europe to subscribe to it.
All the other details relating to the definition of the procedure should be left to the subscribing states' human rights committees, which will be active within the framework of the transitional body and on which members of the Commission and Court of Human Rights also sit. This not only guarantees flexibility in developing this new procedure but also offsets the danger that the new procedure might compete with the procedure under Articles 25 and 46 of the convention (see also the explanations set out in the Appendix).
Furthermore, the Committee of Ministers' only task would be to receive the declaration of recognition by the non-member state concerned and reach an agreement with its government as to who is to serve on the human rights committee as a national representative. The Commission and Court of Human Rights should have the right of veto on this aspect of membership (see explanations in Appendix).
Lastly, it should also be pointed out that a transitional mechanism for the protection of human rights machinery in non-member states represents, as it were, the counterpart in the judicial sphere to the special guest status in the Parliamentary Assembly. states that do not have special guest status with in the Parliamentary Assembly should, however, also be able to subscribe to the transitional mechanism, particularly since it might prove to be especially vital in those cases in which special guest status has not been granted or has been revoked. Once this transitional mechanism has been adopted, acceptance should be regarded as a condition for granting special guest status.
4. Establishment of a court to judge war crimes and crimes against humanity perpetrated in the territory of former Yugoslavia
The Committee on Legal Affairs and Human Rights recalls Recommendation 1189 on the establishment of an international court to judge war crimes, adopted on 1 July 1992, in which it recommends establishing an international criminal court by means of a multilateral convention to be drafted by an international diplomatic conference convened under the auspices of the United Nations.
The Legal Affairs Committee felt that the codification of these crimes was not necessary prior to the establishment of a court, as the existing international treaties would already adequately designate the major war crimes.
It therefore recommends that the Committee of Ministers call upon member states to act through the United Nations to convene an international diplomatic conference to draft a convention on the setting up of a criminal court, and support such action.
When it began its work, the committee had in mind the situation in Iraq following the invasion of Kuwait, which would still in fact justify demands for the establishment of an international criminal court. The same need is felt today for crimes perpetrated in former Yugoslavia, though even more strongly owing to the nature of the crimes.
This underscores the fact that it is essential to establish an international court to judge war crimes, but also shows that it should have world-wide, and not merely European jurisdiction. Its universal nature is essential because crimes against humanity, as their name suggests, have to be the same everywhere and because criteria and penalties also have to be the same throughout the world. A regional approach to this issue does not seem to be appropriate.
However, in the light of the discussions which the Rapporteur had with Lord Owen, such an approach could be necessary as a first step. Accordingly the Committee on Legal Affairs and Human Rights should be instructed to follow the matter.
5. Investigation of human rights violations in the former Yugoslavia by the Parliamentary Assembly
It is without doubt the duty of the Parliamentary Assembly to look into the violations of human rights in former Yugoslavia and to take action in the face of a situation that it was thought would never again be witnessed in Europe.
The proposal to set up a committee of enquiry was made to the Committee on Legal affairs and Human Rights at its meeting on 6 October 1992 as one possible follow-up to the current affairs debate that had just been held.
In the meantime, other initiatives have been taken to set up such committees:
- on 6 October 1992, the United Nations adopted Resolution 780 establishing a committee instructed to investigate violations of international humanitarian law in former Yugoslavia and on 23 October, in accordance with this resolution, a committee for war crimes was set up to examine the evidence of the atrocities committed;
- previously, on 13 August, the United Nations Human Rights Commission had appointed Mr Mazowiecki special Rapporteur and had instructed him to conduct an enquiry into human rights violations in former Yugoslavia. An initial report covering his visit from 1 to 14 August 1992 is available and a second report covers the period 12 to 22 October 1992.
Parallel to this, the CSCE has applied the arrangements concerning the human dimension to Croatia and has dispatched observer missions. Under these circumstances, there would appear to be no point duplicating these efforts. It should also be added that the Parliamentary Assembly scarcely has the means to successfully carry out such a mission, either from a logistic or a material point of view. If the Assembly were to set up its own committee of enquiry, which found itself, however, unable to carry out its task satisfactorily owing to a lack of logistical support, this would not necessarily be conducive to achieving respect for human rights as possible real cases of human rights violations could not be verified and the impression might be given that they had not occurred.
6. Establishment of an ad hoc sub-committee on the human rights situation
Although the proliferation of initiatives is not in itself harmful to efficiency, it nevertheless requires an overall view of the situation.
The Parliamentary Assembly should monitor the situation very closely, gather all testimonies concerning violations of human rights and make the information assembled in this way available to the bodies that might need it. I have in mind here the international court to judge war crimes and crimes against humanity, along with the above-mentioned transitional mechanism.
In order to accomplish this task, it would be appropriate to instruct an ad hoc sub-committee to monitor the human rights situation in former Yugoslavia and to keep in contact with the bodies that are active within the different organisations. An ad hoc sub-committee of the Committee on Legal Affairs and Human Rights might be envisaged, which could be joined by two members from the Political Affairs Committee and two from the Committee on Migration, Refugees and Demography.
7. Conclusions
In the light of the foregoing, the following proposal is submitted to the Parliamentary Assembly:
It is recommended (draft recommendation) that the Committee of Ministers:
- create a transitional mechanism for the protection of human rights in non-member states of the Council of Europe and in so doing, restrict to a minimum the formal definition of the rules of procedure for this transitional machinery;
- do its utmost to give urgent attention to the Council of Europe's two other most pressing tasks, namely the more efficient organisation of the existing machinery under the European Convention on Human Rights and the creation of an additional protocol to the European Convention on Human Rights, on the protection of minorities.
The following decisions are submitted to the Parliamentary Assembly (draft resolution):
- most vigorous condemnation of the human rights violations, appeal to the parties to respect international humanitarian law and support international peace efforts;
- instruction to the Committee on Legal Affairs and Human Rights to pursue and promote the establishment of a transitional mechanism for the protection of human rights in non-member states and an international court to judge war crimes;
- establishment of an ad hoc sub-committee on human rights issues in former Yugoslavia.
APPENDIX
Technical details concerning the transitional mechanism
The following considerations are suggestions as to how the transitional mechanism to safeguard human rights in non-member states might be organised.
Human rights committees for individual subscribing states:
A separate human rights committee will be formed for each state that wishes to subscribe to the transitional mechanism, ("Comité des droits de l'homme pour pays ...", "Human Rights Committee for country ..."). The name committee clearly distinguishes between it and the Commission and the reference to the country makes it clear that this body is part of the transitional mechanism. The report accompanying Recommendation 1183 envisaged the involvement of the Court, meaning both the Commission and the Court. The subsequent escalation of the minorities issue in non-member states shows that excessive demands might be placed on their time. In addition, the issues in the various countries are so diverse that separate bodies might possibly work much more efficiently.
Membership of committees:
The human rights committees will consist of at least two members of the Commission and the Court. The state concerned will propose a number of members equivalent to the combined total of members of the Commission and Court minus one so that the members from the subscribing state are in the minority.
Appointment of committee members:
The Commission and the Court shall appoint their respective members themselves, and in doing so they are free to assign different members to various subscribing country committees (consideration of the time factor and the sphere of interest of the members). The state concerned shall also propose its members, whereby it must also take minorities into consideration. The Commission and the Court have the right of veto and may turn down members suggested by the state. Members of the state concerned are formally appointed by the Committee of Ministers.
Accession procedure:
The state concerned shall deposit a declaration with the Committee of Ministers stating that it wishes to subscribe to the transitional mechanism. The Committee of Ministers negotiates the size of the committee with the government of the state concerned, registers the candidates and elects the members after consultation with the Commission and the Court. The question of who submits the declaration of recognition and in what form shall be settled according to the law of the country concerned, together with the question of whether this recognition has to be incorporated into the domestic legal system at all. The decision on whether to incorporate the acceptance of the transitional mechanism into the Constitution is a matter for the state concerned alone.
Initiation of the procedure:
Any individual or NGO that submits to the committee a "communication" of a clear or presumed violation of human rights is "entitled to complain". It would certainly be a good idea if these people were not referred to as "applicants" in order to avoid confusion with formal applications under the ECHR. The "communicating party" itself does not have to be the victim of the violation of human rights, but does have to allege a violation in the territory of the state concerned or by the state concerned. The violation must have been committed by the state or by persons who have assumed state power. The "communicating party" is not required to be ordinarily resident in the state concerned.
Legal basis:
On the one hand, the assessment of evidence of human rights violations is based on the enumeration of human rights contained in the ECHR. As this is a completely informal process, other legal bases of international law can also be taken into consideration, in particular UN human rights covenants and other legal instruments relating to international humanitarian law as well as a possible protocol to the ECHR on the rights of minorities. The committees have a completely free hand in establishing technical procedural guidelines. They will base themselves on the technical rules of the application procedure under the ECHR, but are allowed to diverge from it, either on a general basis or in individual cases.
Admissibility:
Admissibility is not formally determined in accordance with ECHR criteria nor separately from the factual findings. The committees are, however, not informally bound to give reasons if they decide not to take up a case.
Decisions:
The procedure ends not only with an opinion, but also with a "declaration" on the substance of the complaint. This does not however constitute a formal judgment. It had been suggested in the report accompanying Recommendation 1183 (1992) that legal advice only would be given in the case of non-member states. At the time, this was motivated by the belief that groups in such states should receive support in disputes with state bodies in matters relating to the exercise of human rights. Today, however, the massive violations of human rights in the conflict areas call for a more effective response to such violations; hence the need for more binding declarations as to the substance of compliants. This does not prevent the states subscribing to the transitional mechanism to seek opinions for themselves.
Effect of the declarations:
The human rights committees' declarations are fundamentally binding. If a state prefers to regard the "declarations" of the committee competent for monitoring its territory not as binding, but rather as advisory, this must be specified when it deposits its initial declaration of recognition of the transitional mechanisms with the Committee of Ministers. Committee declarations do not have the force of preliminary rulings and therefore cannot be invoked in law. If declarations were to be given the effect of preliminary rulings, there would be a risk that this would lead to the devaluation of interpretations of the European Convention on Human Rights. The transitional mechanism has to remain totally informal.
Publicity of the declarations:
As a rule, declarations are public although it is possible to deviate from this principle. In particular, "communicating parties" may request that the declaration is not made public, in the interests of their own safety.
Possibility of bringing the matter before a higher court, and enforcement:
There is no possibility of appealing against the declaration by the human rights committee. Likewise, there is no body that would monitor whether the declaration were really heeded. If the state concerned had special guest status in the Parliamentary Assembly, there would be some possibility of informally influencing its representatives in the Parliamentary Assembly.
Reporting committee: Committee on Legal Affairs and Human Rights.
Budgetary implications for the Assembly: expenses of the Secretariat for the ad hoc sub-committee proposed in the draft resolution and official journey expenses, if necessary.
Reference to committee: Doc. 6689, Reference No. 1815 of 5 November 1992.
Draft recommendation, draft resolution and draft order: adopted by the committee on 11 January 1993.
Members of the committee: Lord Kirkhill (Chairman), MM. Strimitzer, Jansson (Vice-Chairmen), Akarçali, Amaral, Arnalds, Bartodziej, Bindig, Borg, Candal, Cardelli, Chevalier, Columberg, Espersen, Franck, Fry, Fuhrmann (Alternate: Gusenbauer), Galanos, Guenov, Gundersen, Guzzetti, Hagård, Mrs Haller, MM. Karcsay, Kempinaire, Mrs Lentz-Cornette, MM. Loutfi (Alternate: Toshev), Markiewicz, Maroni, Mimaroglu, Nolan, Nuñez (Alternate: Lopez-Henares), Oehry, Rodotà, Rodriguez Gomez, Rokofyllos, von Schmude, Mrs Soutendijk-van Appeldoorn (Alternate: de Hoop Scheffer), MM. Stamatis, Stoffelen, Tabajdi, Vogel, Ward, Worms.
N.B. The names of the members who took part in the vote are in italics.
Secretaries to the committee: Mr Plate and Ms Coin.