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
