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Resolution 2240 (2018)
Unlimited access to member States, including “grey zones”, by Council of Europe and United Nations human rights monitoring bodies
1. The Parliamentary Assembly notes
with concern the speeches addressed by Mr Zeid Ra’ad Al Hussein, United
Nations High Commissioner for Human Rights, to the 33rd, 35th and
38th sessions of the United Nations Human Rights Council, in which
he drew attention to difficulties encountered by his own office
and other United Nations human rights monitoring bodies in obtaining
access to the territory of numerous States, including certain Council
of Europe member States. It recalls that Council of Europe monitoring
bodies have encountered similar problems, often in relation to the
same situations or geographical locations.
2. The Assembly reaffirms the legal obligations on Council of
Europe member States to co-operate fully and in good faith with
international human rights monitoring mechanisms, including those
of the Council of Europe and the United Nations, whose mandates
they have accepted, in compliance with the established conditions
and procedures of the relevant bodies. It deplores all instances
of States’ failures to co-operate with international human rights
monitoring mechanisms and insists that any member State concerned
should engage in full, unconditional co-operation without delay.
It fully supports the relevant bodies in their efforts to fulfil
their mandates.
3. The Assembly considers that activities of human rights monitoring
bodies with respect to territories under the control of de facto authorities, including
their contacts with such authorities and visits to the territories
in question, do not constitute and should not be presented as recognition
of those authorities’ legitimacy under international law. It does,
however, consider that the exercise of de
facto authority brings with it a duty to respect the
rights of all inhabitants of the territory in question, as those
rights would otherwise be respected by the authorities of the State
of which the territory is a part; even illegitimate assumption of
the powers of the State must be accompanied by assumption of the
corresponding responsibilities of the State towards its inhabitants.
This includes a duty to co-operate with international human rights
monitoring mechanisms. The Assembly also calls on States which exercise
effective control over territories where local de facto authorities operate to
exercise their influence so as to enable effective monitoring by
international human rights bodies.
4. The Assembly welcomes instances where Council of Europe and
United Nations monitoring bodies have obtained access to “grey zones”
(territories of States within the mandates of those bodies which
are under the control of de facto authorities).
It emphasises that such activity requires a constructive attitude
on the part of both the central de jure and
local de facto authorities:
in particular, the former must allow a proper dialogue to develop
between the monitoring body and the local de
facto authorities, and the latter must accept that monitoring
visits take place in full compliance with the mandate of the relevant
monitoring body. The Assembly thus especially welcomes the visits
by the Council of Europe’s European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (CPT)
to Transnistria and Abkhazia and encourages the respective de facto authorities, along with
the legitimate authorities of the Republic of Moldova and Georgia
respectively, to work towards a resumption of CPT monitoring in
those territories. It also encourages the de
facto authorities of South Ossetia to co-operate with
the CPT. The Assembly welcomes the willingness of those “grey zones”
that have co-operated with the Office of the United Nations High Commissioner
for Human Rights and other international human rights monitoring
mechanisms aimed at better protection of human rights in conflict
zones.
5. The Assembly also supports the efforts of other monitoring
bodies to examine the situation in territories to which access has
been denied, or allowed only on conditions that would be politically
unacceptable or incompatible with the body’s mandate. It welcomes
the efforts of the Council of Europe’s Advisory Committee for the
Protection of National Minorities to examine the situation in Crimea
following its illegal annexation by the Russian Federation, despite
being unable to access the Crimean peninsula. It underlines, however,
that such activities, whilst still valuable, cannot fully substitute
for monitoring conducted in full compliance with the mandate of
the relevant body, including fact-finding visits where relevant.
6. The Assembly favours an approach whereby States are presumed
to have consented to visits by human rights monitoring bodies in
circumstances where there is reason to believe that there are serious
violations of fundamental human rights and dignity such as threats
to life, torture, inhuman or degrading treatment or denial of basic
humanitarian needs. Such a presumption could be made practicable
by allowing States to rebut it in exceptional circumstances, for
instance where denial of access is necessary for reasons relating
to national defence, public safety or serious local public disorder.
It would, however, be for the State to raise such objections upon
being informed of a monitoring body’s intention to visit in circumstances
that invoke the presumption of consent.
7. The Assembly welcomes the established, ongoing co-operation
between Council of Europe and United Nations human rights monitoring
bodies, with a view to maximising the impact, efficiency and effectiveness
of their respective activities, by benefiting from one another’s
knowledge, experience and expertise. It encourages all efforts to
enhance such co-operation in the future.