BLAKE DAWSON WALDRON
L A W Y E R S
HUMAN RIGHTS LAW RESOURCE CENTRE
RIGHT TO FREEDOM FROM ARBITRARY DETENTION
1.
INTRODUCTION
This memorandum examines:
(a)
the nature of the right to be free from arbitrary detention under article 9(1) of the
ICCPR; and
(b)
the extent to which freedom from arbitrary detention is a right protected by
customary international law.
2.
FREEDOM FROM ARBITRARY DETENTION UNDER THE ICCPR
2.1
Introduction
Arbitrary detention is prohibited under article 9(1) of the ICCPR, which states that:
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest
or detention. No one shall be deprived of his liberty except on such grounds and in accordance with
such procedures as are established by law.
Commentators have noted that the right to be free from arbitrary detention under article
9(1) of the ICCPR is "facilitated by procedural guarantees" in articles 9(2) to (5) of the
ICCPR,1 being

the right to be informed of a criminal charge (article 9(2));

the rights of persons detained on criminal charges (article 9(3));

the right of habeas corpus (article 9(4)); and

the right to compensation for unlawful arrest or detention (article 9(5)).
This view seems to find support in jurisprudence of the HRC which blurs the various
subparagraph of article 9. For example, in C v Australia, the HRC said that "continuance
of immigration detention for over two years without individual justification and without
Joseph, Schultz and Castan, The International Covenant on Civil and Political Rights – Cases, Materials and
Commentary (2nd Ed, 2004) 304. This view seems to find support in jurisprudence of the HRC which blurs the
various subparagraph of article 9. For example, in C v Australia, the HRC said that "continuance of immigration
detention for over two years without individual justification and without any chance of substantive judicial review was,
in the Committee's view, arbitrary and constituted a violation of article 9, paragraph 1": C v Australia, Communication
No 900/00, Un Doc CCPR/C/76/D/900/1999 (2002).
1
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any chance of substantive judicial review was, in the Committee's view, arbitrary and
constituted a violation of article 9, paragraph 1".2
The following is a brief discussion of each of the procedural guarantees in article 9(2) to
9(4), which may inform the scope of article 9(1).
2.2
The right to be informed of a criminal charge (article 9(2))
Article 9(2) provides:
Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall
be promptly informed of any charges against him.
Article 9(2) applies to people who are remanded in custody pending charge.3 The provision
has been interpreted to mean that a person must be reasonably aware of the precise reasons
for arrest to enable him to take immediate steps to secure his release.4
In Drescher Caldas v Uruguay, the HRC held that it was not sufficient "simply to inform"
the author of the complaint "that he was being arrested under the prompt security measures
without any indication of the substance of the complaint against him."5
2.3
Rights of persons detained on criminal charges (article 9(3))
Article 9(3) of the ICCPR provides:
Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other
officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable
time or to release. It shall not be the general rule that persons awaiting trial shall be detained in
custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial
proceedings, and, should occasion arise, for execution of the judgment.
The HRC, in General Comment 8, noted that the meaning of the word "promptly" in article
9(3) "must not exceed a few days".6 In Freemantle v Jamaica,7 the Committee found a
violation of article 9(3) when the author was held incommunicado for four days without
being brought before a judge or having access to counsel.
The HRC has recently stated that:
2
C v Australia, Communication No 900/00, Un Doc CCPR/C/76/D/900/1999 (2002).
3
See Kelly v Jamaica, Communication No 253/87 [5.8].
4
Drescher Caldas v Uruguay, Communication No 43/79 (11 January 1979) [13.2].
5
Drescher Caldas v Uruguay, Communication No 43/79 (11 January 1979) [13.2].
6
HRC ,General Comment No 8: Right to Liberty and Security of Persons (art 9) (30 June 1982) [2].
7
Communication No 625/95 UN Doc CCPR/C/68/D/625/1995 (28 April 2000) ( [7.4].
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The State Party should take action to ensure that detention in police custody never lasts longer than
48 hours and that detainees have access to lawyers from the moment of their detention. 8
Extended pre-trial detention is also a breach of article 9(3), with what constitutes
"reasonable time" being assessed on a case-by-case basis.9 Long periods of pre-trial
detention may, however, be permitted when a detainee is charged with a serious offence.10
2.4
Right of habeas corpus (article 9(4))
Article 9(4) of the ICCPR provides:
Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings
before a court, in order that that court may decide without delay on the lawfulness of his detention
and order his release if the detention is not lawful.
In Hammel v Madagascar,11 incommunicado detention for three days, during which it was
impossible for the author to access a court to challenge his detention, was held to breach
article 9(4). Five days incommunicado detention has also been identified as a breach of
article 9.12
Article 9(4) has been interpreted as giving rise to a right of access to a lawyer, because in
practice it is virtually impossible for people to challenge their detention without legal
representation. Thus, denial of access to a lawyer is either generally prohibited by article
9(1) or arises out of article 9(4).13
3.
ARGUMENTS THAT PROLONGED ARBITRARY DETENTION IS IN BREACH
OF CUSTOMARY INTERNATIONAL LAW
3.1
Introduction
The US Restatement (Third) on Foreign Relations Law provides that practising,
encouraging or condoning prolonged arbitrary detention is prohibited under customary
international law.
The following discussion considers the further support for this view as contained in HRC
General Comments, the UDHR and other commentary.
8
HRC, Concluding Observations on Gabon, UN Doc CCPR/CO/70/GAB (2000).
9
Kone v Senegal (386/89) para 8.6.
Joseph, Schultz and Castan, The International Covenant on Civil and Political Rights – Cases, Materials and
Commentary (2nd Ed, 2004) 330.
10
11
(155/83)
12
Concluding Observations on Spain (1996) UN doc. CCPR/C/79/Add.61, para 12.
13
See Memorandum to Counsel at part 23 on the right to legal representation.
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3.2
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General Comments to the ICCPR
The HRC's General Comments 24 and 29 provide support for the proposition that arbitrary
detention is part of customary international law.
(a)
General Comment 24
General Comment 24 supports the proposition that arbitrary detention is a
peremptory norm and therefore part of customary international law:
Reservations that offend peremptory norms would not be compatible with the object and
purpose of the Covenant … Accordingly, provisions in the Covenant that represent
customary international law (and a fortiori when they have the character of peremptory
norms) may not be the subject of reservations. Accordingly, a State may not reserve the
right to … arbitrarily arrest and detain persons.14
The General Comment considers the suspension of the non-derogable rights set out
in article 4 of the ICCPR. Notwithstanding that arbitrary detention is not referred to
in article 4, the HRC states that:
[w]hile there is no hierarchy of importance of rights under the Covenant, the operation of
certain rights may not be suspended, even in times of national emergency. This underlines
the great importance of non-derogable rights. But not all rights of profound importance,
such as articles 9 and 27 of the Covenant, have in fact been made non-derogable.15
(b)
General Comment 29
General Comment 29 deals with states of emergency and the operation of article 4
of the ICCPR. It supports the conclusion that arbitrary detention is a peremptory
norm:
States parties may in no circumstances invoke Article 4 of the Covenant as justification for
acting in violation of humanitarian law or peremptory norms of international law, for
instance … through arbitrary deprivations of liberty. 16
Paragraph 16 of General Comment 29, which emphasises the right to take
proceedings to a court to decide the lawfulness of detention, states:
General Comment 24: Issues relating to reservations made upon ratification or accession to the Covenant or the
Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, UN Doc
CCPR/C/21/Rev.1/Add.6 (4 November 1994) [8].
14
General Comment 24: Issues relating to reservations made upon ratification or accession to the Covenant or the
Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, UN Doc
CCPR/C/21/Rev.1/Add.6 (4 November 1994) [10].
15
General Comment No 29: States of Emergency (Article 4), Un Doc CCPR/C/21/Rev.1/Add.11 (31 August 2001)
[11].
16
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In order to protect non-derogable rights, the right to take proceedings before a court to
enable the court to decide without delay on the lawfulness of detention, must not be
diminished by a State party's decision to derogate from the Covenant.
General Comment 29 also cites a recommendation from the HRC which reinforces
the integral nature of article 9 to the ICCPR:
The Committee is satisfied that States parties generally understand that the right to habeas
corpus and amparo should not be limited in situations of emergency. Furthermore, the
Committee is of the view that the remedies provided in article 9, paragraphs 3 and 4, read in
conjunction with article 2 are inherent to the Covenant as a whole.17
3.3
Universal Declaration of Human Rights as customary law
Article 9 of the ICCPR is a codification of article 9 of the Universal Declaration of Human
Rights (UDHR). It states that:
No one shall be subjected to arbitrary arrest, detention or exile.
Some commentators have suggested that the UDHR may, to some extent at least, have the
status of customary law.18 In pleadings to the ICJ, the United States argued that article 9 of
the UDHR is one of several articles reflecting customary international law of universal
application.19
Further, in Filartiga v Pena Irala, Kaufman J of the US Circuit Court of Appeal stated that
the prohibition on torture "has become part of customary international law, as evidenced
and defined by the Universal Declaration of Human Rights".20 However, commentators
have questioned whether there is really an appropriate foundation for the view that the
Universal Declaration of Human Rights has, in and of itself, reached the status of
customary international law.21 In our view, the issue remains unsettled.
Recommendation by Human Rights Committee to the Sub-Commission on Prevention of Discrimination and
Protection of Minorities concerning, cited at footnote 9 of HRC, General Comment No 29: States of Emergency
(Article 4) UN Doc CCPR/C/21/Rev.1/Add.11 (31 August 2001).
17
L B Sohn, "The New International Law: Protection of the Rights of Individuals rather than States" (1982) 32
American University Law Review 1, 17; Stuart Kaye and Ryszard Piotrowicz, "Human Rights in International and
Australian Law" (2000) 30; DJ Harris, Cases and Materials on International Law (5th Ed, 2002) 65.
18
See Memorial of the United States, Case Concerning United States Diplomatic and Consular Staff in Tehran (US v
Iran), 1980 ICJ Pleadings 182 n 36 (Jan 12, 1980).
19
20
630 F 2d 876 (1980), extracted in DJ Harris, Cases and Materials on International Law (5th Ed, 2002) 731.
21
DJ Harris, Cases and Materials on International Law (5th Ed, 2002) 731, fn 38.
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3.4
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Legal commentary
Two commentators, Paust and Mullerson, have stated that the HRC "has recognised that
freedom from arbitrary detention or arrest is a peremptory norm or jus cogens."22 Paust has
also emphasised that prohibition of detention is widely recognised:
Under international law, human rights standards that are both treaty-based and part of customary
international law … establish standards for the propriety of detention. These standards, recognised
in nearly all major human rights instruments, include the prohibition of 'arbitrary' arrest or
detention.23
Paust also notes that article 9 rights are not limited by State territory, stating:
The customary and treaty-based human right to freedom from arbitrary detention is not one that
applies merely within a state's own territory. Not one of the human rights instruments cited here …
sets forth such a limitation. Thus, the right applies wherever a state exercises its jurisdiction over a
person.24
3.5
Conclusion
There appears to be significant argument, particularly arising from references in the HRC
General Comments to article 9 of the ICCPR to suggest that the right to freedom from
arbitrary detention has achieved the status of customary international law.
BLAKE DAWSON WALDRON
11 July 2006
Jordan J Paust, "Judicial Power to Determine the Status and Rights of Persons Detained Without Trial" (2003) 44
Harvard International Law Journal 503, 509. See also Rein Mullerson, Human Rights and the Individual as a Subject
of International Law (1990) 1 European Journal of International Law 33, 39, who refers to Schacter, "International
Law in Theory and Practice" (1982) 178 RCDI 326 and A D'Amato, International Law: Process and Prospect (1987)
145 as authority for this proposition.
22
Jordan J Paust, "Judicial Power to Determine the Status and Rights of Persons Detained Without Trial" (2003) 44
Harvard International Law Journal 503, 505-6.
23
Jordan J Paust, "Judicial Power to Determine the Status and Rights of Persons Detained Without Trial" (2003) 44
Harvard International Law Journal 503, 506.
24
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