Arbitrary Detention and International Law The Torkel Opsahl Memorial Lecture 2015 by Mads Andenæs
Torkel Opsahl
Arbitrary detention as a pressing problem of international law The war on terror and torture. Extra judicial, summary or arbitrary executions. Extraordinary renditions. Arbitrary detention.
The incontrovertible or inescapable logic of arbitrary detention Low threshold for taking into detention, high threshold to be let out
International law re asserting itself General international law is gradually given effect through a process of clarification and restatement with new treaties, formation of customary law, international courts and UN bodies and peer review of states. The autonomy of the law.
International law Arbitrary Detention is prohibited in Articles 9 of the Universal Declaration and the Covenant on civil and political rights, Article 5 of the European Convention on human rights and other conventions. Customary international law, peremptory norm (jus cogens). Constitutional law, principle of law.
Classic civil right. Negative duty? Positive: duty to deter and prevent, investigate and provide further remedies. Prohibition, duty and right. Principle, substantive and procedural rule and in interpretation.
UDHR article 9 No one shall be subjected to arbitrary arrest
ICCPR article 9 arbitrary arrest or detention
ECHR article 5 No one shall be deprived of his liberty save in the following cases
International jurisprudence/case law UN Human Rights Committee, UN Working Group on Arbitrary Detention, European Court of Human Rights
United Nations HRC General Comment No. 35 Article 9 (Liberty and security of person) (2014) WGAD UN basic principles and guidelines on the right of anyone deprived of their liberty to bring proceedings before a court (2015).
Regional human rights courts Regional human rights courts, ECHR, IACtHR, AfCHPR.
Time limit for court Criminal proceedings: Articles 9(3) and 5(3): promptly. Kovsh v. Belarus (HRC 2013).CG No. 35 [33].
Articles 9(4) and 5(4), habeas corpus: speedily, without delay. WGAD UN basic principles and guidelines on the right of anyone deprived of their liberty to bring proceedings before a court.
Territoriality Territory, acts abroad, effective control (ultimate control).
Military operations abroad. Police and security services.
Military operations Inter arma enim silent leges (Cicero): does law apply? Can states derogate?
Lex specialis? International law: the Geneva conventions on international humanitarian law (laws of war). Human rights law. Fragmentation or unitary system? IHL as lex specialis?
International case law The jurisprudence/case of the UN HRC and the WGAD. The ECtHR. Statements by Governments: Copenhagen Principles.
The ICJ as arbiter Parallel sets of rights for individuals.
Extra ordinary situations Emergencies. Non derogable (jus cogens) rights. Longer emergencies. War against terror.
Guantanamo Bay Is Guantanamo Bay in violation of international law?
Refugees and other migrants Crossing a border not a crime. Irregular status as a migrant not a crime. Detention where justified must be strictly proportionate.
Children Convention on the Rights of the Child, Article 37: further protections
General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (article 3, para. 1). Children of migrants.
Disability Convention on the Rights of Persons with Disabilities, Article 14: the existence of a disability shall in no case justify a deprivation of liberty.
Battle of the professions Battle of the professions Norwegian reservations
Psychiatry and care Battle of the professions continues. Care for the dement.
Challenges Exceptionalism. Role of international community. The stronger the interests of the state, the stronger the need for effective protection of the individual. The unsavoury individual. Military operations abroad. Police and security services. law applies and this is international law and no lex specialis. Migrants. Time and distance in international human rights supervision