2: Notions of the “Arbitrary”

Author:

This chapter considers the meaning of “arbitrary” in arbitrary detention by explaining the philosophical, sociological and legal underpinnings of the concept. It explores how the concept of “arbitrary” has been co-opted by the law, the many usages of “arbitrary” in law, the principles of the rule of law and procedural fairness. This is then followed by an examination of “arbitrariness” in international human rights law and, more particularly, the human rights prohibition of “arbitrary detention”.

2.1 Introduction

One tends to have a clear image of detention – what confinement looks like, what restriction to liberty must feel like, and the contexts that may give rise to such situations. Detention seems straightforward. However, the outer edges are less obvious, and these borders continue to widen. Whether someone is deprived of liberty requires spatial and temporal analyses and depends on both factual and legal assessments involving objective and subjective factors. On the peripheries, we might ask: What distinguishes a violation of freedom of movement from that of liberty and security of the person? Does the place of confinement – what it is labelled, who is held inside, its size, level of comfort or access to amenities, or the nature of supervision – say anything about whether it constitutes detention? Must the confinement be overseen by state authorities? What amount of time must a person be held before the treatment is considered a form of detention? Can a person be detained emotionally or psychologically as opposed to physically? If there are no physical barriers preventing a person from leaving but if they leave, they or others are very likely to be subjected to significant harms, does it constitute detention?

Detention is not an obvious label. And adding “arbitrariness” to this complex picture further blurs the subject.

This chapter unpacks the “arbitrary” in arbitrary detention and explains the philosophical, sociological and legal underpinnings of the concept. First, it considers the etymology of the term “arbitrary” and its theoretical foundations. It studies the multiple meanings of “arbitrary”, also having regard to the many disciplines employing the term, the political contexts in which the theories have arisen and the evolution of these contexts over time, as well as the persons and groups to whom it is applied. These various meanings are not inherently contradictory; they emphasise different facets of a concept that has been applied from diverse vantage points.1

The chapter continues by exploring how the concept of “arbitrary” has been co-opted by the law, the many usages of “arbitrary” in law, the principles of the rule of law and procedural fairness. This is then followed by an examination of “arbitrariness” in international human rights law, considering the ways in which “arbitrary” is used and applied in legal texts, treaties, case law and scholarly writings. This sets the stage for the analysis of the human rights prohibition of “arbitrary detention”.

2.2 Multiple meanings

The word “arbitrary” derives from the Latin arbī^trārĭus, ‘motus in arteriā naturalis, non arbitrarius’ – ‘depending upon the will, arbitrary’2; voluntary, or at the discretion of the arbiter or decision-maker. The Oxford English Dictionary defines “arbitrary” as ‘[t]o be decided by one’s liking; dependent upon will or pleasure; at the discretion or option of anyone’.3 This is consistent with the standard legal definition, which centres on ‘conduct or acts based alone upon one’s will, and not upon any course of reasoning and exercise of judgment’.4 This focus on decisions taken by discretion as opposed to logic or reason is consistent with Diderot and Le Rond d’Alembert’s definition, which explains “arbitrary” as ‘that which is not defined or limited by any express law or constitution, but is left solely to the judgment and discretion of individuals’.5 The adjective “arbitrary” can be applied to both the decision-making process and the outcome of that process.

The term “arbitrary” often has negative connotations: ‘[d]erived from mere opinion or preference; not based on the nature of things; hence, capricious, uncertain, varying’; ‘Unrestrained in the exercise of will; of uncontrolled power or authority, absolute; hence, despotic, tyrannical’.6 In this sense, to describe an action, rule or decision as “arbitrary” implies unpredictability or capriciousness and the failure of the decision-maker to exercise power or authority with restraint. Vague rules afford much space for ‘corrupt, arbitrary, or idiosyncratic decision-making or decision-executing’7 and appear unfair for this reason. However, inflexible rules that result in mechanistic application, without consideration of the underlying policies behind the rule, can also appear unfair.8

The emphasis on unpredictability or idiosyncratic decision-making belies an often-present facet of the arbitrary exercise of power: that it is ‘neither random nor accidental’; it is most readily exercised ‘against certain categories of [marginalised] subjects who cannot rely on the self-restraint that the social order imposes on officials and on society at large. Seen from this point of view, arbitrariness seems rather to blur the already slippery boundaries that differentiate it from the notion of discrimination.’9 In this sense, “arbitrariness” is connected to unfair decision-making though the reason for the unfairness or bias may have little to do with the arbitrariness of the process.10 Here, the unfairness is substantive. True, an excess of discretion in how a decision to detain is imposed lends to arbitrary decision-making, which is likely to disadvantage marginalised groups, but the arbitrary exercise of power that is ‘neither random nor accidental’ is a different kind of phenomenon. The focus is on why the decision to detain was imposed (a substantive matter) as opposed to how the decision to detain was arrived at (a procedural matter).

“Arbitrariness” is also associated with randomness. It is used in statistical sampling to foster equality of opportunities and, in this sense, improve fairness.11 But here randomness is pursued in furtherance of a higher goal (and in that teleological sense the strategy is purposive and not fully arbitrary) and it overcomes the negative characteristics associated with arbitrariness on that basis. As Schmidtz says, ‘when “arbitrary” means random, […] there is no connection between being arbitrary and being improper’.12 For example, the randomness of lotteries suggests that each ticket holder or potential beneficiary of a scarce resource has an equal chance of being rewarded.13 However, the more important the task, or the more serious the consequences, the less one may want to rely on randomness to determine outcomes. This is because decisions that are made without a transparent decision-making logic can be unfair or lead to mistakes if the outcomes were supposed to be anything other than arbitrary. But this proposition requires confidence in the fairness of the rules-based system that is capable to cut across culture-specific values, and therefore it depends on one’s vantage point. The degree to which one wants to rely upon random decision-making depends upon how one perceives relative privilege vis-à-vis the rules. Individuals from marginalised groups who are ‘excluded by the procedures which establish the rules that affect them’14 may believe they will fare better with random processes rather than rules-based systems, even more so if those processes are weighted to address disadvantage.15 This is particularly the case if rules-based systems adopt fallible measurement criteria that unjustly privilege the already privileged or unfairly discriminate against, exclude or further marginalise already marginalised groups.16

2.3 Theorising “arbitrariness”

“Arbitrariness” is a key lens through which theories about morality, ethics, politics, social relations and justice are explained. For social theorists Bourdieu and Passeron, arbitrariness is a way to explain the contingency of values and meanings that have no absolute or eternal justification. They describe how dominant groups within society co-opt educational structures to legitimise certain interpretations of value and meaning. This reinforces pre-existing power relations that contribute to the status quo of their continued dominance.17 Here, “arbitrariness” is understood as the contingency or fluidity of meaning and it is the targeted appropriation of that contingency that reinforces domination, oppression and violence. Bourdieu’s passage from doxa to discourse is only possible when common sense propositions of culture begin to lose their naturalised character, revealing the underlying arbitrariness of the given social order.18

The understanding of the arbitrary exercise of power as a condition for domination is developed by Locke.19 For him, arbitrary power involves being at the mercy of another’s arbitrary will and consequently being dominated by that other person. Decisions taken on this basis would risk being inconsistent, uncertain and unknowable.

Republican theorist Pettit20 also considered the role of domination in the exercise of power. Pettit’s conception of freedom as non-domination requires that no one has the capacity to interfere on an arbitrary basis in another’s choices.21 Arbitrariness depends on the arbitrary will of the person or body exercising power or causing the interference. The only exceptions to this (non-arbitrariness) according to Pettit would be where the interference is the result of rule-governed procedures that minimise or exclude the influence of the arbitrary will of others. Further, this interference should track the qualified interests and opinions of those affected, and the claim that it does this must be controllable and contestable by those affected, if there is appropriate protection against arbitrary interference: ‘The parliament or the police officer, then, the judge or the prison warden, may practise non-dominating interference, provided – and it is a big proviso – that a suitably constraining, constitutional arrangement works effectively.’22 In a similar sense, Lovett explains that “arbitrariness” is not simply an excessive form of discretion, it is a condition for domination.23 He argues that ‘the degree to which social power is arbitrary is captured by the ratio, so to speak, of its potential uses that are unconstrained to those that are constrained (by rules, procedures, or goals)’.24

Non-“arbitrariness” is equally a critical component of conceptions of law, the rule of law and procedural fairness.25 In Dicey’s formulation, the rule of law stands against ‘the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint’.26 For Dicey, the rule of law requires that persons are only punished on the basis of law properly established.27 This core principle of legality is designed to outlaw the exercise of arbitrary power or the unreasonable interference by governments with persons’ life, liberty, and property. Governments should only exercise authority that is clear, certain, predictable and accords with laws promulgated in advance and properly enforced by independent and impartial courts. Thus, arbitrary power is power that is exercised against individuals or groups without having been derived from laws properly enacted (though the blind adherence to laws is not favoured either,28 and some discretion is necessary for decision-making in complex societies), or conversely, as Lovett has argued, ‘the power exercised by political and legal authorities over citizens counts as non-arbitrary, […], to the extent that those authorities observe the rule of law’.29

Waldron gives “arbitrary” three main meanings: unpredictable, unreasoned, and without authority or legitimacy.30 Law that is overly broad or vague can lead to unpredictable results, though according to Endicott this does not necessarily make it arbitrary; indeed, increasing precision can have the opposite effect and increase arbitrariness.31 Thus, beyond formal conceptions of the rule of law, the concept has also been understood by Endicott and some other legal scholars as having a substantive value, a reason of the law, the need for judgment, as a means to sift through the sense of contingency.32 The International Court of Justice has construed this substantive notion of “arbitrariness” as ‘not so much something opposed to a rule of law, as something opposed to the rule of law […]. It is wilful disregard of due process of law, an act which shocks, or at least surprises a sense of judicial propriety.’33

Rawls’ theory of justice as fairness34 recognises that one’s conception of justice should seek to nullify the effects of both the privileges and disadvantages that arise by accidental circumstance and are thus arbitrary. He posits a form of egalitarianism that goes significantly beyond the equality of opportunity, to require one to interrogate the influence of what he sees as equally arbitrary factors – unequal initial social positions and natural endowments.35 Thus, here, arbitrariness is likened to the (undeserved) status or positions over which individuals have no control. While Rawls does not see those initial positions as fundamentally just or unjust from an ethical standpoint, he holds that the fact that they exist because of happenstance and are undeserved requires, as a condition for fairness, that institutions within societies counter their influence through distributive justice by way of a system of social cooperation or similar policies.36 Rawls contends that the only inequalities that should be tolerated in society are those that ultimately benefit the least favoured. For Rawls, “arbitrariness” serves as an antithesis to a conception of justice37 that accepts ‘social contingencies that lead to social subordination and domination’.38 Thus, “arbitrariness” is a given, and its consequences can be justified by social institutions governed by his principles of justice. “Arbitrariness” here is a property of the distribution of natural assets.

This Rawlsian difference principle remains seminal in advancing theoretical understandings of social justice,39 and builds upon key social justice precursors, such as Virchow who, when reporting on the catastrophic impacts of the typhus epidemic in Upper Silesia, sought to encourage the state to recognise its moral responsibility to do more to mitigate deadly social conditions that had an unequal impact on the poor and most marginalised in society. In a foreshadowing to Rawls’ theory of moral arbitrariness, Virchow wrote of the importance of the ‘great struggle of critical thinking against authoritarian rule, of natural history against dogma, of eternal human rights against human arbitrariness’.40 Nevertheless, the Rawlsian difference principle has been variously critiqued by libertarian scholars,41 luck egalitarians42 and civic republicans.43 The principle has also been critiqued by some theorists for its ambiguity, impracticality and inability to solve or radically transform real-time problems of injustice and inequality44 and, indeed, for its failure to identify the pluralistic and intersectional character, persistence and impact of the many different forms and layers of injustice based, for instance, on race, class or gender.45 Mouffe, who criticises Rawls’ methods, considers that Rawls:

is so confident that […] rational persons deliberating within the constraints of the reasonable and moved only by their rational advantage will choose his principles of justice that he considers it would be enough for one man to calculate the rational self-interest of all. In that case the process of deliberation is supererogatory. […] As current controversies about abortion clearly show, pluralism does not mean that all those conflicting conceptions of the good will coexist peacefully without trying to intervene in the public sphere and the frontier between public and private is not given once and for all but constructed and constantly shifting. Moreover at any moment “private” affairs can witness the emergence of antagonisms and thereby become politicized. Therefore Rawls’s “well-ordered society” rests on the elimination of the very idea of the political.46

2.4 “Arbitrariness” in human rights law

“Arbitrariness” is used in public international law to determine whether a state acted in bad faith when encroaching on the rights of another state. Here, conduct that ‘is unreasonable, and pursued in an arbitrary manner, without due consideration of the legitimate expectations of the other State’,47 is considered wrongful. Similarly, if a state’s exercise of discretion is arbitrary and unreasonable, this would be an abuse of rights for which a state could be held internationally responsible.48 Also, “arbitrariness” is a frequently appearing descriptor in domestic legal frameworks, particularly regarding the exercise of discretion, including in the law of contracts.49 It is also used as a means to protect against interferences by public authorities in public or administrative law,50 criminal law51 and constitutional law.52

Many of the public international law, administrative and criminal law references to “arbitrariness” frame how the term has come to be used in human rights law. Human rights law uses “arbitrariness” to explain the extent to which measures taken by a state which restrict or deprive access to certain rights are a legitimate exercise of executive power. The term “arbitrary” is used in treaties to frame certain human rights, including:

  • arbitrary deprivation of life53;

  • arbitrary arrest or detention54;

  • arbitrary deprivation of the right to enter one’s own country55;

  • arbitrary deprivation of the right to one’s nationality or the right to change it56;

  • arbitrary deprivation of the right to leave a country, including one’s own57;

  • arbitrary interference with privacy, family, home or correspondence, or unlawful attacks on honour and reputation58;

  • arbitrary deprivation of property.59

“Arbitrariness” features in both social conceptions of human rights and as a tool to demarcate what are the acceptable limits on access to certain rights. When considering the practice of human rights, one can observe two main tensions:

  1. (1)The control over the meaning and scope of human rights to limit how broadly social conceptions of human rights are construed; those doing the reigning in see themselves as an anti-expansionist lobby, but they can equally be understood as reductionist – they see the need to restrain the arbitrary power of courts and international institutions. There is a constant push–pull between the readily apparent needs of marginalised and excluded individuals and groups and certain governments’ and others’ efforts to entrench narratives of exclusion in order to negate or limit state obligations to such groups. For instance, neoliberal economic policies tend to create a disabling environment for the enjoyment of human rights by socially excluded or marginalised groups. There is the push–pull between nationalism, universalism and extraterritoriality, between human rights minimalist prohibitions and more maximalist positive obligations, and about the recognition and justiciability of economic, social and cultural rights.
  2. (2)The pressure to widen exceptions to human rights to prevent categories of persons from benefiting from protections because of who they are or what they allegedly did. Under this rubric, there is also pressure to exempt categories of persons from having to comply with human rights, whether because of their formal role or status or the context in which they operate. Such exceptionalist framings see just about everything as contingent. Even rights recognised as absolute are sought to be made contingent by way of domestic reinterpretations and rationalisations of their scope and reach. This is the tension between the inclusion/exclusion parameters of the “us” and the “them”, between those that are (or are permitted to be) associated with the common narrative of privilege and the morally dubious misfits, degenerates and dissenters who remain outsiders. It is between security or stability and terror and fear. The arbitrary power being exerted by states and their officials is justified in the name of a public good that is narrowly construed, appropriated and naturalised60; a necessary evil to promote “core” values. The ‘safety valve’ of ostracism ensures ‘a smoother, more peaceful, and less tumultuous running of the state’.61

Both these tensions reveal different conceptions of the placement of human rights and what human rights are meant to do. And there is a relationship between these two tensions. Groups that tend to be excluded in (2) are often those that most need the wider social protections of (1).

2.4.1 “Arbitrariness” and the social conception of rights

“Arbitrariness” is a lens through which to evaluate whether the specific interests of individuals or groups, often the most vulnerable, have been met. The classification helps to frame contingencies in subjecthood, identity and representation that in turn help structure human rights arguments about equality and non-discrimination and how different rights relate to each other.

Rawls’ understanding of moral arbitrariness has been used by some scholars and social justice advocates to question government policies that fail to adequately account for morally arbitrary factors, such as race, gender and class, or which have the effect of restricting or denying access to rights based on these or other characteristics over which the targeted group has no control. This is the claim made by Jensen about Virchow’s call for the German government to address health inequalities in Upper Silesia.62 It is also part of what is behind Pogge’s claim, who, when considering the impact of arbitrarily acquired privilege, ‘find[s] it morally troubling, at least, that a world heavily dominated by us [the privileged] burdens so many people with such deficient and inferior starting positions’.63 It is also asserted by Cole, who widens Rawlsian moral arbitrariness beyond borders when terming the liberal realist justifications of the UK government policy to exclude certain groups of migrants from free treatment under the National Health Service as ‘shallow brutality’.64 Cole posits that borders:

might be the result of war, geography or discovery; but from a liberal point of view national borders cannot bear much, if any, moral weight. What is of interest to moral theory is not the processes through which territorial boundaries become fixed in particular places, but how the distinction between insiders and outsiders is established, the boundaries of membership.65

In many ways, human rights have become the battleground between the excluded seeking both literal and conceptual entry to privileged domains, and the privileged, recognising that a condition for their continued privilege is the maintenance of exclusions. This collision underpins the tensioned reasoning of all human rights legal and political institutions, and it is why the human rights project is destined to be fundamentally political.

A social conception of human rights would see value in understanding how the presence or absence of morally arbitrary factors impact on rights access and enforcement. Thus, it is not only important to eradicate arbitrary detentions and killings and the arbitrary procedures that may have led to them, but to understand and address specifically how factors such as race, gender and class impact upon who is unlawfully detained or killed. One must understand and address what makes it possible for ‘the systematic relegation of an entire group of people to a condition of inferiority’, which then goes on to markedly increase their susceptibility to human rights violations.66 The United Nations (UN) Human Rights Committee, in its consideration of the arbitrary deprivation of life, noted that ‘[d]ata suggesting that members of religious, racial, or ethnic minorities, indigent persons or foreign nationals are disproportionately likely to face the death penalty may indicate an unequal application of the death penalty. […] Any deprivation of life based on discrimination in law or fact is ipso facto arbitrary in nature.’67 The US Supreme Court recognised in Furman v Georgia68 that the death penalty would be unconstitutional under the Eighth Amendment prohibition against cruel and unusual punishment when imposed in an arbitrary and capricious manner (disproportionately against certain classes of defendants, most often African Americans and the poor) and leading to discriminatory results. The absence of clear guidelines on how the death penalty or indeed any harsh penalty is applied can lead to racial and other discrimination: prejudice can lead to harsher penalties for disfavoured minorities. The Supreme Court held:

The high service rendered by the “cruel and unusual” punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are even handed, nonselective, and nonarbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups.69

Nevertheless, and underscoring the power of the push-pull, the death penalty was reinstated in many American states despite the continuing spectre of its discriminatory (and hence, arbitrary) application.70 The position continues to fluctuate.

Any discrimination between groups must serve a rational purpose, but what counts as such involves a value judgment about a society’s legal and political culture. As the South African Constitutional Court recognised in a case involving the differentiation between citizens and non-citizens for the purpose of social assistance benefits, to comply with the Constitution, ‘that differentiation, if it is to pass constitutional muster, must not be arbitrary or irrational nor must it manifest a naked preference. There must be a rational connection between that differentiating law and the legitimate government purpose it is designed to achieve.’71

Rawlsian distributive ethics might tolerate those distinctions that ultimately benefit the least favoured in society, but again exhibiting the push–pull not all societies will be structured in such a way. For instance, to avoid arbitrariness in guaranteeing access to health, the social determinants of ill-health (including food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment) must be studied, challenged, and addressed.72 The failure to address such particularities for all persons and groups contributes to morally arbitrary and discriminatory effects. Nevertheless, states continue to deny basic healthcare to migrants or persons with undocumented status, despite human rights pronouncements.73 And, as Yamin explains, ‘[i]t is far from clear that we have a consensus in the human rights community about which inequalities in health constitute inequities or how egalitarian a society must be before all human rights, including health, can be realized’.74

Such arbitrary and discriminatory effects are only partially addressed by courts and institutions given that the laws they apply tend to underpin the naturalised narratives of privilege that they notionally are supposed to combat. Many courts give lip-service to wider or more differentiated social conceptions of rights but, foundationally, exhibit a deference to the status quo ladened with ‘subjective values’.75 When they stray from such deference, the “anarchist” judges are themselves attacked for their arbitrariness.76

A social conception of human rights would also see value in giving space and agency to those who have ostensibly been the objects of human rights protection but rarely the protagonists in framing their experiences of violations (if indeed that is a frame they wish to adopt) and identifying what would be required to rectify the breaches. It is progressively recognised that narratives that exclude rights holders from actively contributing to solutions or indeed maintaining their silence should they wish77 end up legitimising certain interpretations of value and meaning and reinforcing Bourdieu and Passeron’s sense of ‘domination, oppression and violence’.78 Individuals and groups that have been victimised hold the key to interpreting the impact of their experiences of victimisation (if this is how they wish to characterise those experiences) and determining how their situations can be improved on their terms. The growing recognition of the procedural rights of victims of crime,79 and of the need for reparations to empower victims both procedurally and substantively by helping to transform the social contexts that contributed to the violations,80 attest to this shift. But this ‘juridified victimhood’81 and the ‘juridification’ of their transformation through reparations82 is arguably too the product of an arbitrary legal process that identifies who fits within the narrowed category of victimhood and who is excluded. And it also determines how transformation through reparations is to be achieved, with perfunctory opportunities for victims to participate in the self-flagellatory process of submission to the established, pious and self-congratulatory narratives of redemption and restoration. To call the process reparative remains aspirational if not ideational. As Kendall notes, ‘[f]rom the standpoint of conflict-affected communities, the use of legal categories to determine qualification as a victim may seem arbitrary at best, in the sense that they are completely disconnected from their lived realities’.83

The shift in voice is also evident in the recognition of the need for prior consultation and consent of affected indigenous peoples and communities about development projects affecting land use and access to resources.84 The African Court on Human and Peoples’ Rights recognised, in its consideration of the claim brought by the Ogiek community against Kenya, that ‘it is a basic requirement of international human rights law that indigenous peoples, like the Ogiek, be consulted in all decisions and actions that affect their lives. […] in an active and informed manner, in accordance with their customs and traditions, […] in good faith and using culturally-appropriate procedures’.85 The Inter-American Court of Human Rights has found similarly.86 For environmental matters, public participation has been recognised as essential to integrate public concerns and knowledge into policy decisions affecting the environment.87 The transformation to victim-centred, public or people-centred procedures is intended, at least in principle, to rebalance the subjectivities of human rights, but it also risks reifying narratives of hierarchy and neo-colonial charity. Here still, while there has been significant progress, engagement risks being tokenistic or being part of a process leading towards broad, symbolic pronouncements without the practical impetus to ground a veritable enforcement of rights.

2.4.2 “Arbitrary interference” and human rights decision-making

The avoidance of arbitrary state power is a key function of human rights88 and why the bar on arbitrary interference is a core principle underlying most rights protections: one cannot interfere with rights unless there is a legitimate reason to do so. Many, though not all89 human rights prohibitions are relative in how they are applied. Whether a restriction, limitation or deprivation is justifiable will depend on the treaty framework and the right or freedom at issue.

“Arbitrariness” helps to clarify what is meant by the relative access to rights. A deprivation of a right would only be permissible on non-arbitrary grounds – on such grounds and in accordance with such procedures as are established by law,90 or based on specific enumerated grounds.91 Courts and treaty bodies routinely recognise that “arbitrary” interferences violate the underlying human rights obligation. But when is an interference considered “arbitrary”? How do courts assess “arbitrariness” in the context of relative rights, and what conclusions can be drawn from the practice?

Many human rights treaties and declarative texts recognise the overarching principles of legality, necessity and proportionality when determining whether an interference with rights is arbitrary. For example, Article 29 of the Universal Declaration of Human Rights provides: ‘everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society’.92 For some other treaties without an explicit or overarching limitations clause, one has been derived through interpretation. For instance, the UN Human Rights Committee has interpreted “arbitrary interference” in Article 17(2) of the International Covenant on Civil and Political Rights (ICCPR), as a concept that:

can also extend to interference provided for under the law. The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the circumstances.93

This is similar to the approach taken in the International Covenant on Economic, Social and Cultural Rights (ICESCR) (though it does not use the term “arbitrary”). The Covenant delineates when rights can be limited and concludes that, among other factors, such limitations cannot be arbitrary. It provides that ‘the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society’.94 By introducing a requirement that the limitation must be undertaken to promote general welfare in a democratic society, the ICESCR introduces a social conception of rights into its understanding of the purpose and weight to be given to relative rights and the circumstances in which such rights might be restricted. The UN Committee on Economic, Social and Cultural Rights, which has interpreted Article 4, has explained that the provision was intended to be protective of the rights of individuals and was not designed to introduce limitations on rights affecting the subsistence or survival of the individual or the integrity of the person.95

Some treaties also address the limitation of rights within the substantive provisions dealing with enumerated rights. Each treaty will have a slightly differently formulated limitation clause, for various rights within a treaty, and as between the treaties for same or similar rights. Several examples follow.

(i) Qualified rights

Qualified rights, such as the right to privacy, freedom of thought and religion, freedom of expression, assembly, or association, are those rights that are naturally subject to a range of competing interests. Human rights decision-making bodies regularly apply proportionality balancing to assess whether these rights can be legitimately restricted. This is the case though the rights and values at stake are rarely commensurate96 and the task is not really one of balancing, as how the rights are weighed against other interests is not a simple task of determining which weighs more.97

The weighing of interests occurs in stages. First, there is a determination of whether the infringement is provided for by law. This criterion requires that there is a law, legitimately enacted, on which the interference with the right is based and in which the authorities are authorised to limit the right in question. The law must be clear, sufficiently precise and accessible to enable persons to reasonably foresee the consequences.98 For example, the Inter-American Commission on Human Rights has clarified in relation to freedom of expression that ‘vague or ambiguous legal provisions that grant […] very broad discretionary powers to the authorities, are incompatible with the American Convention, because they can support potential arbitrary acts that are tantamount to prior censorship or that establish disproportionate liabilities for the expression of protected speech’.99

Second, the restriction should pursue a legitimate aim.100 What might constitute a legitimate aim or purpose would depend on the right being restricted and the rationale given for the restriction. The rationales considered in the case law include the need to protect the rights of others, the protection of the reputation or rights of others, or the need to fulfil a particular public interest such as national security, the prevention of crime or maintenance of public order, the protection of public health, morals, the economic well-being, or territorial integrity of the country. The basic understandings of these conditions may be obvious societal aims, but the outer edges much less so. Many are laden with moralistic visions that lend a form of arbitrariness to the weighing up of seemingly competing rights and the results of that process.101 As Çali argues: ‘Communal interests that are bundled under public morality and general economic welfare of the country are particularly suspect as challenges to the recognition and accommodation of diversity by human rights protections.’102

Third, the interference with the right should be necessary in a democratic society. This requires a showing of a “pressing social need” for the interference and that it is rationally connected with and proportionate to the aim pursued, in the sense that the restriction impaired the right in the least obstructive way. This condition affords significant contingency in how it is applied, though states must still show that the measure taken to limit the right in question is the least restrictive as possible. The European Court of Human Rights (ECtHR) has generally conceded a wide margin of appreciation to national authorities to determine what is ‘necessary in a democratic society’.103 What constitutes “democratic values” is subject to differing viewpoints, and there is a tendency to valorise majoritarian interpretations; in the sense of Bourdieu this contributes to the reinforcement of the status quo.104 What constitutes a “pressing social need” is equally value laden. Every limitation will additionally be subject to the principle of non-discrimination; measures that limit rights in a discriminatory way will fail the test of proportionality. Nevertheless, it is not always apparent how discrimination enters into the evaluation of the different rights at stake.

The example of the qualified right to privacy and family life105 follows (more or less) the patterns described. Any interference with the right must be proportional to the end sought and be necessary in the circumstances of any given case.106 In Toonen v Australia,107 which concerned the prohibition of homosexual sex as a violation of the right to privacy, the UN Human Rights Committee determined that, to avoid arbitrariness, interference with rights must be reasonable and proportional to the end sought and be necessary in the circumstances of the case. The Committee further clarified that ‘the introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objective of the Covenant and should be, in any event, reasonable in the particular circumstances’.108 Thus, public authorities can only legitimately interfere with the right where it can be demonstrated that doing so is lawful, necessary and proportionate and, in respect of the European Convention on Human Rights (ECHR) framing of the right,109 when it is done to protect one of a list of enumerated rights: national security; public safety; the economy; health or morals; the rights and freedoms of other people; or to prevent disorder or crime.110

The ECtHR has taken a similar approach, recognising that the purpose of the right to respect for privacy and family life is ‘essentially that of protecting the individual against arbitrary interference by the public authorities’.111 In the Christine Goodwin case, which involved the legal acknowledgment of the post-transition gender of a transsexual person, the ECtHR recognised that in the absence of any ‘concrete or substantial hardship or detriment to the public interest’, ‘society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost’.112

(ii) Limited rights: the arbitrary deprivation of the right to life

With the qualified rights described earlier, upon the determination that there is an interference, there will be a secondary assessment using proportionality criteria to decide whether that interference is legitimate. Limited rights operate differently. Such rights are limited only in specific and narrow ways and are not subject to the same sort of balancing exercise as qualified rights. The determination as to whether the treatment resulting in the act in question was legitimate is mainly incorporated directly into the definition of the right. There will only be a violation of the right if the acts in question do not fulfil the non-arbitrariness clauses already situated within the definition. This single-stage approach is evident in respect of the arbitrary deprivation of the right to life, which is discussed in this section, and with respect to the arbitrary deprivation of liberty and security of the person, canvassed in section 2.5 of this chapter.

The distinction between qualified and limited rights is explained by Verdirame, who indicates:

[T]he exercise of limited rights is not subject to a general principle of balancing. To say that my right is limited is to say that it does not extend beyond a specified area: no question of balancing arises if I stay within the limits of the right. The areas excluded from the scope of the right may be defined teleologically, in which case a means-end review will be called for.113

However, even under this view this should not mean that there is no balancing exercise at all. In McCann, a right to life case that involved the killing by members of the security forces of three members of the Irish Republican Army, the ECtHR determined that, in considering the meaning of the use of lethal force that is no more than absolutely necessary, the use of the term “absolutely necessary” ‘indicates that a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether State action is necessary in a democratic society’; the provisions must be ‘strictly construed’ and are limited only by the ‘exhaustive and narrowly interpreted’ objectives listed.114 Thus, even when those listed scenarios of non-arbitrariness are present, the use of lethal force must be essential and strictly proportionate to be considered non-arbitrary. Force is proportionate when it is appropriate and no more than necessary to address the problem concerned. Consequently, there may be aspects of the definitions that require contextual proportionality analysis, even though this is a more focused review than what is envisioned for qualified rights.

Most relevant human rights treaties recognise the prohibition on the arbitrary deprivation of life.115 Some of the articles setting out this prohibition list specifically the conduct that would qualify as non-arbitrary. For example, Article 2 of the ECHR (which does not refer explicitly to the prohibition of the arbitrary deprivation of life) identifies the scenario of when the death penalty is applied in the execution of a sentence of a court following a conviction of a crime for which this penalty is provided by law (in countries where the death penalty remains permissible and is itself not arbitrarily applied). It also lists the scenarios in which the deprivation of life would be permissible so long as the use of force was no more than absolutely necessary.116 In interpreting these provisions, the ECtHR focuses on ensuring that states have in place an adequate legal framework to regulate the use of firearms and effective safeguards against arbitrariness and abuse of force.117 Also, the ECtHR has held that states must have in place a system to review the lawfulness of the use of lethal force.118

The UN Human Rights Committee has clarified the meaning of “arbitrary deprivation” in the context of the right to life and the ICCPR treaty framework,119 giving scenarios of non-arbitrary conduct: the use of lethal force in self-defence or to protect life from an imminent threat, and in pursuit of exceptional measures established by law and accompanied by effective institutional safeguards designed to prevent arbitrary deprivations of life.120 Human Rights Committee General Comment 36 on the right to life makes clear that the requirement that the prohibition is ‘protected by law’ and the prohibition against “arbitrary” deprivation of life, though independent, are overlapping in that ‘a deprivation of life that lacks a legal basis or is otherwise inconsistent with life-protecting laws and procedures is, as a rule, arbitrary in nature’.121 Furthermore, even if a deprivation of life is authorised by domestic law, it may still be arbitrary to the extent that it demonstrates features such as ‘inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality’.122

The American Convention on Human Rights and African Charter on Human and Peoples’ Rights both prohibit the arbitrary deprivation of life, though provide no definition of “arbitrariness”.123 In the context of an armed conflict, determinations as to whether there has been an arbitrary deprivation of life in the sense of Article 6 ICCPR would need to take into account the standards of arbitrariness under international humanitarian law (IHL).124 Thus, the interpretation of arbitrariness within a treaty may also vary if the context brings to the fore another branch of law.

2.4.3 “Arbitrariness” and positive obligations

Human rights obligations encompass the obligation to respect, protect and fulfil the rights in question. While the nature of the obligations will depend upon the right in question, they invariably include both negative obligations (what a state must refrain from doing) and positive obligations (what a state must do to secure to individuals and groups within its jurisdiction access to the rights in question).

As set out in section 2.4.2, a deprivation or limitation of a right would only be permissible on non-arbitrary grounds. The state’s failure to meet its positive obligations to ensure the realisation of rights in practice (whether these stemmed from the failure to meet a general duty to adopt new laws or procedures; the duty to investigate certain human rights abuses; or the duty to take operational measures to protect persons at real and immediate risk to life or bodily or mental integrity, where the authorities know or ought to know of the risk)125 would also constitute a deprivation of a human right and violate the state’s human rights obligations. A proportionality analysis is relevant to interpret or determine the scope of states’ positive obligations as there must be a rational assessment of competing interests and objectives to ensure that decisions about the actions to take to meet the positive obligations were not arbitrary. However, the proportionality analysis may look slightly different given the emphasis of positive obligations on requiring states to exercise due diligence to ensure that human rights can be realised.126

Still, assessing whether states have met their positive obligations in respect of qualified rights such as the right to privacy, the freedom of thought and religion, freedom of expression, assembly, or association has been challenging. As Stoyanova has argued regarding the ECtHR, while states are required when restricting qualified rights to do so in a way that restricts the right in the most limited way possible, there is not a comparable test for positive obligations in which the state is required ‘to undertake the most protective measures to ensure the rights. The starting point is rather that States can choose the measures and their failure to choose the best measure for protecting a person (arguably in fulfilment of a positive obligation) does not necessary lead to a breach.’127

In regards to the right to privacy and family life, the ECtHR has considered inter alia the importance of the interest at stake and whether ‘fundamental values’ or ‘essential aspects’ of the right are at issue as well as the impact of the positive obligation at stake on the state concerned.128 While the ECtHR has recognised that in cases raising ‘particularly important facet[s] of an individual’s existence or identity, the margin of appreciation that states enjoy will be restricted, this will nevertheless become more expansive if there is no European consensus, and particularly where the case raises sensitive moral or ethical issues, the margin will be wider’.129 Arguably, however, the rationale for affording greater flexibility to states when sensitive moral or ethical issues are engaged is questionable, as this is when vulnerable or marginalised persons may be at greatest risk of violations. This approach risks diluting the protection of the Convention as opposed to ensuring adequate protection when it is needed most. In some other cases involving qualified rights, the ECtHR has recognised the existence of positive obligations. For instance, it recognised that the right to peaceful assembly encompasses both negative obligations (to abstain from interfering with the right to protest) and positive obligations (to protect a lawful demonstration against counter-demonstrations).130

With respect to the arbitrary deprivation of the right to life, the UN Human Rights Committee confirmed states’ ‘due diligence obligation to take reasonable, positive measures that do not impose disproportionate burdens on them in response to reasonably foreseeable threats to life’.131 It also requires states to inter alia ‘take special measures of protection towards persons in vulnerable situations whose lives have been placed at particular risk because of specific threats or pre-existing patterns of violence’,132 and to take ‘appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity’.133 Of course, what will constitute ‘appropriate measures’ will depend on the circumstances, but it is argued here that, in order to meet the requirement of non-arbitrariness, there is a need to adopt some form of proportionality analysis to assess the measures taken against the known risks.

2.5 The “arbitrariness” in arbitrary detention

In this book, I argue that forms of privilege and other morally arbitrary factors influence which individuals are detained, when, for how long and in what conditions. Policies of securitisation and criminalisation have exacerbated these arbitrary distinctions given their propensity to reify “otherness”. How these policies are applied and their impact on individuals and communities depends on the underlying political values and goals at stake, which differ between countries and over time. The security posited by these policies has little to do with the liberty and security of the person that the prohibition of arbitrary detention is supposed to foster. It is the contingency of this double meaning of security – “who’s security?” – which makes the prohibition of arbitrary detention so rudderless. And it is this rudderless prohibition of arbitrary detention that infuses the prohibition itself with an excess of arbitrariness.

International human rights courts and treaty bodies have had only minimal success in clawing back against these tendencies of securitisation and criminalisation, particularly in those areas of detention perceived to raise the greatest concerns about sovereignty, national identity and national security. The tension is particularly evident in areas involving non-citizens, racialised communities and minority groups, and responses to internal or international security threats. Human rights bodies have been relatively robust in withstanding the direct pressure from states to change major course by watering down human rights standards in areas states perceive to be fundamental to their national interests. Yet, these bodies have arguably been less adept at resisting (and they have not always resisted) the more subtle pressures to widen flexibilities and contextualisation into their decision-making processes, or in some cases to fill in what are mainly porous, nuanced standards with state-friendly moderations, in some cases leading to the same result of lowered standards.

2.5.1 The history and meaning of “arbitrary” in arbitrary detention

The right to liberty and security of the person is a fundamental human right recognised by most relevant international human rights treaties and declarative texts.134 It is intrinsically connected to human dignity and is the ultimate expression of the minimum protections individuals (should) have against the coercive power of the state. The right to liberty and security of the person also constitutes an essential component of many countries’ constitutional systems.135

Following on from the adoption in 1956 of the Universal Declaration of Human Rights (UDHR) and its Article 9, the (then) UN Commission on Human Rights established a committee to study the right of everyone to be free from arbitrary arrest, detention and exile.136 Attesting to the importance the Commission placed on the issue, it was the first-ever subject it selected for special study.137 In defining “arbitrary”, the Commission had regard to the travaux préparatoires on Article 9 UDHR, as well as Article 9 of the (then) draft Covenant on Civil and Political Rights.138 It understood that ‘an arrest or detention is arbitrary if it is (a) on grounds or in accordance with procedures other than those established by law, or (b) under the provisions of a law the purpose of which is incompatible with respect for the right to liberty and security of person’.139 Thus, there was a clear concern about laws that were properly enacted but nevertheless unnecessarily oppressive or unfair. The Commission set out fundamental guarantees against arbitrary arrest and detention, including an independent judiciary,140 procedural safeguards against arbitrary arrest and detention141 including restrictions on pre-trial detention.142 Its focuses in the report foreshadow many of the areas in which arbitrary detention remains most problematic. In addition to criminal law detentions, the Commission also considered the potential for arbitrariness with respect to the detention of persons with reduced mental capacities,143 with infectious diseases,144 drug addictions,145 unauthorised aliens,146 and the use of detention for minor offences or debt.147 It also addressed the powers of arrest in emergency or exceptional situations.148

The work of the Commission contributed substantially to the development of the definition of arbitrary detention in Article 9 ICCPR, and influenced later texts and procedures, such as the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.149 It also contributed to the impetus to create the UN Working Group on Arbitrary Detention (WGAD), which was established in 1991 by the former Commission on Human Rights.150 According to the WGAD, ‘the prohibition of all forms of arbitrary deprivation of liberty forms a part of international customary law and constitutes a peremptory or jus cogens norm’.151 The peremptory status of the prohibition of arbitrary detention has also been affirmed by the Human Rights Committee in its General Comment No. 29 on states of emergency,152 the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families153 and, as the International Court of Justice (ICJ) made clear in the Hostages case, ‘[w]rongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights’.154 The prohibition has also been recognised as a peremptory norm applicable in both international and non-international armed conflicts.155

The meaning of “arbitrary” in arbitrary detention derives from the framing of the concept under human rights law. The right to detain in certain circumstances is well-recognised; detention is only illegitimate when it meets the conditions for arbitrariness. This has been taken to include elements of inappropriateness, injustice, lack of predictability or due process of law, unreasonableness, or is otherwise unnecessary or disproportionate.156 In A v United Kingdom the ECtHR indicated:

to avoid being branded as arbitrary, detention […] must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate; and the length of detention should not exceed that reasonably required for the purpose pursued.157

The Human Rights Committee has indicated that even ‘remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances’.158 It had also made clear already from 1982 that preventive detention on security grounds must satisfy those same conditions of non-arbitrariness.159 Detention that is initially considered lawful may become “arbitrary” if it is unduly prolonged or not subject to periodic review.160

The Committee on the Protection of the Rights of All Migrant Workers has explained that, as a function of the rule against arbitrariness:

[a]ny use of detention in the context of migration must […] be based on a legitimate State objective, provided for in national law, employed always as an exceptional measure of last resort compatible with the criteria of necessity and proportionality, limited in scope and duration, imposed only where less restrictive alternatives have been considered and found inadequate to meet legitimate purposes, and subject to periodic re-evaluation and judicial review. In addition, the conditions of detention must be proportionate to the legitimate aim sought and must always meet minimum international standards. […] Any compulsory, automatic, systematic or widespread detention of migrant workers and members of their families is arbitrary. In addition, the Committee considers that the prohibition of arbitrary detention also extends to the use of detention as a deterrent or as a general migration management tool to contain immigration.161

The prohibition of arbitrary detention has also been affirmed in judgments of the Inter-American Court of Human Rights162 and reports of the Inter-American Commission on Human Rights,163 as it has by the African Commission on Human and Peoples’ Rights.164

The WGAD has brought further clarity to the definition of “arbitrariness”, noting:

[It] can arise from the law itself or from the particular conduct of Government officials. A detention, even if it is authorized by law, may still be considered arbitrary if it is premised upon an arbitrary piece of legislation or is inherently unjust, relying for instance on discriminatory grounds. An overly broad statute authorizing automatic and indefinite detention without any standards or review is by implication arbitrary.165

As part of its working methods, the WGAD identifies five categories of scenarios that would amount to arbitrary detention:

Category I: When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of their sentence or despite an amnesty law applicable to them);

Category II: When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and, insofar as states parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights;

Category III: When the total or partial non-observance of the international norms relating to the right to a fair trial, spelled out in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the states concerned, is of such gravity as to give the deprivation of liberty an arbitrary character;

Category IV: When asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy; and

Category V: When the deprivation of liberty constitutes a violation of international law for reasons of discrimination based on birth; national, ethnic, or social origin; language; religion; economic condition; political or other opinion; gender; sexual orientation; or disability or other status, and which aims towards or can result in ignoring the equality of human rights.166

2.5.2 Arbitrary detention: both qualified and limited

The ICCPR sets out a general prohibition against arbitrary detention and refrains from enumerating what may constitute legitimate reasons to detain, though it recognises the possibility for individuals to be detained on criminal charges (without specifying the circumstances in which such detentions might be arbitrary).167 When interpreting the ICCPR, the Human Rights Committee has applied a proportionality analysis to assess whether a given detention is justifiable in the circumstances of the case.168 In A v Australia, the Committee made clear its view that the detention of migrants is not per se arbitrary,169 though it could be considered arbitrary ‘if it is not necessary in all circumstances of the case, for example to prevent flight or interference with evidence’.170 It also held that it was necessary to review periodically the grounds for justifying the detention and to ensure that detention did not continue beyond the period in which the state could provide appropriate justification.171 The Committee has further clarified that detention will be arbitrary when a detainee is not accorded adequate procedural safeguards.172 Thus, for detention to be non-arbitrary, it would need to be used as a last resort – when there are no other available options.

While ultimately the Human Rights Committee determined in A v Australia that the detention was arbitrary, its framing of the issues represents a subtle shift away from the recognition of a natural state of liberty and security of the person. It indicates that detention could be considered arbitrary if the requirement for necessity was not made out. However, the Human Rights Committee should have contended that it would be considered arbitrary if the grounds for necessity were not present. If necessity is a required criterion, then the absence of the criterion would surely lead to a finding of arbitrariness. Is this simply a question of semantics? The Committee on the Protection of the Rights of All Migrant Workers and Their Families has seen the need to underscore this point: ‘Any compulsory, automatic, systematic or widespread detention of migrant workers and members of their families is arbitrary’173 [emphases added].

Certainly detentions should comply with the requirements of legality, necessity and proportionality, indeed, they must do. The issue is how these various requirements interact. As the Special Rapporteur on the Human Rights of Migrants has indicated, the obligation to always consider alternatives to detention (non-custodial measures) before resorting to detention should be established by law, and detailed guidelines and proper training should be developed for judges and other state officials, such as police, border and immigration officers, in order to ensure a systematic application of non-custodial measures instead of detention.174 Any decision to detain must consider all relevant factors, including the availability of less invasive options to achieve ends that are determined to be legitimate on a case-by-case basis and not be based on a mandatory rule for a broad category of persons. This approach is like that of most other human rights treaties and their interpretive bodies, including the American Convention175 and the African Charter on Human and Peoples’ Rights.176

As already explored in sub-section 2.4.2(ii) of this chapter: ‘Limited rights: the arbitrary deprivation of the right to life’, at least in respect of the ECtHR, a heightened test of necessity – ‘no more than absolutely necessary’ – is employed for violations involving the use of lethal force.177 But what test is used for arbitrary detention?

The ECtHR recognises that detention will only be lawful in accordance with the various sub-sections of Article 5 when it is both in accordance with a ‘procedure prescribed by law’ and where the deprivation of liberty is in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness.178 The case law makes clear that what will be considered arbitrary shifts depending on the type of detention involved. In some cases, detention will only need to satisfy a lesser test of necessity, where it is ‘reasonably considered necessary to prevent his committing an offence or fleeing after having done so’.179 This lowered standard of necessity, which has been applied by the ECtHR to preventive detention cases involving allegations of involvement in organised crime and terrorism, has not been taken on board by other bodies. Indeed, the WGAD has set out that ‘[r]esort to administrative detention against suspects of such [terrorist] criminal activities is inadmissible’,180 whereas the Inter-American Court has indicated:

[P]reventive detention is the most serious measure that can be applied to someone accused of a crime, wherefore its application must be exceptional, as it is limited by the principles of nullum crimen nulla poena sine lege praevia, presumption of innocence, need, and proportionality, which are essential in a democratic society.181

In other cases involving immigration detention, detention will not need to satisfy at all the requirement of being necessary in a democratic society.182 Ignoring altogether the principle of necessity for some categories of detention is a significant departure from even the Human Rights Committee’s less than watertight commitment to the principle of necessity in A v Australia.183 Thus, at least for the ECtHR, it is easier to violate the liberty and security of the person than it is to violate freedom of expression, association or the right to privacy.184

2.5.3 States’ positive obligations to ensure that detention is non-arbitrary

The right to liberty and security of the person gives rise to states’ positive due diligence obligations to prevent and respond to both individual instances and wider patterns or phenomena of arbitrary detention.

Concretely, to meet their positive obligations, states must ensure that persons detained within their jurisdiction are informed of the reasons for their detention and not only entitled but also enabled to have the lawfulness of their detention reviewed promptly by a court.185 States are obligated to actively consider the imposition of alternatives to detention.186 This is an obvious requirement if detention is going to meet the requirement of being “exceptional”. This principle has been applied in cases of detention on grounds related to psychiatric treatment,187 recognising that authorities must:

strike a fair balance between the competing interests emanating, on the one hand, from society’s responsibility to secure the best possible health care for those with diminished faculties […] and, on the other hand, from the individual’s inalienable right to self-determination. In other words, it is imperative to apply the principle of proportionality inherent in the structure of the provisions enshrining those Convention rights that are susceptible to restrictions.188

It has also been applied to cases involving pre-trial detention,189 and to asylum seekers.190

States must also take appropriate steps to protect vulnerable persons from arbitrary detention, including persons at particular risk of arbitrary detention, such as those in need of psychiatric treatment or social care.191 Courts have equally recognised that a state’s responsibility will be engaged if it acquiesces in a person’s loss of liberty by private individuals or fails to put an end to the situation.192 Consistent with this special emphasis on protecting vulnerable persons, it follows that states have a positive obligation to prevent and respond to the increased risk of arbitrary detention faced by particularly marginalised groups. This point was underscored by the Inter-American Commission on Human Rights in respect of the heightened risks of being subjected to pre-trial detention faced by ‘persons of African descent, indigenous persons, LGBTI and older persons, and persons with disabilities’, and the need to adopt special measures that consider:

particular conditions of vulnerability and the factors that may increase the risk of exposure to acts of violence and discrimination in contexts of pretrial detention, such as sex, race, ethnicity age, sexual orientation, gender identity and expression, and disability. It is also important to consider the frequent intersectionality of the factors mentioned, which may accentuate the situation of risk of persons held in pretrial detention.193

Certainly, the heightened risk is not limited to these groups only or to pre-trial detention.

2.5.4 Relationship with other rights

Arbitrary detention increases the risk of additional human rights violations, including: fair trial violations; torture and other cruel, inhuman, or degrading treatment; involuntary and enforced disappearances; and extrajudicial executions. The same is also true in reverse: torture and other forms of prohibited ill-treatment and many other human rights violations are also just as likely to lead to prolonged arbitrary detention, particularly after the conclusion of unfair trials. As will be discussed in the next chapter, arbitrary detention may in and of itself, under certain circumstances, amount to torture and other forms of cruel, inhuman, or degrading treatment or punishment given the extreme helplessness it can engender in persons subjected to the practice.

Arbitrary detention can violate the principles of IHL. Rules on the reasons for which persons may be deprived of their liberty by a party to an international armed conflict are to be found in all four of the 1949 Geneva Conventions.194 Arbitrary detention may also violate international refugee law. Article 31 of the 1951 Refugee Convention provides that contracting states shall not penalise refugees who enter or are present in a country without permission, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. This provision has been interpreted to protect refugees from arbitrary detention. The United Nations High Commissioner for Refugees (UNHCR) detention guidelines make clear that ‘the right to seek asylum, the non-penalisation for irregular entry or stay and the rights to liberty and security of person and freedom of movement – mean that the detention of asylum-seekers should be a measure of last resort, with liberty being the default position’.195

Arbitrary detention may also constitute a form of hostage-taking, whether perpetrated by non-state or state actors.196 International criminal law definitions recognise that, when the underlying criteria for the crimes are present, arbitrary detention may constitute a war crime,197 and a crime against humanity.198

2.6 The grey zones of “detention” and their impact on arbitrariness

We all know what “detention” is, so we say. But on the outer edges, the grey zones, particularly where people are being held in de facto locations or zones that are not normally labelled or perceived as “detention centres”, the distinction between a “detention” and a “restriction on movement” is nuanced and depends on how facts and circumstances are analysed by those with the power to decide. The ECtHR has held that whether someone has been deprived of their liberty within the meaning of the ECHR will depend on the concrete situation, and account must be taken of the range of criteria such as the type, duration, effects and manner of implementation of the measure in question.199 The WGAD has similarly taken into account contextual factors when making this determination. It considers whether there are limitations on the person’s physical movements, on receiving visits from others and on means of communication, as well as the level of security around the place where the person is confined,200 and, in so doing, has determined that ‘placing individuals in temporary custody in stations, ports and airports or any other facilities where they remain under constant surveillance’,201 or situations of house arrest that are ‘carried out in closed premises which the person is not allowed to leave’,202 may amount to detention. Thus, the underlying circumstances of the confinement are considered when determining whether there is a deprivation of liberty, or whether the facts reveal a lesser or different restriction of liberty or movement.

The consequences of labelling a situation as one or the other can be significant from a human rights perspective. Under the ECHR, only certain reasons for detention are lawful, so anything falling outside those reasons will ipso facto be unlawful and arbitrary.203 Thus, there is a strong incentive to label contexts of containment that fall outside the permissible reasons to detain as restrictions on movement, as this would still make them at least potentially lawful. As a second stage, any rights restriction would only be justifiable if it was deemed as reasonable, necessary and proportionate in the light of the circumstances. This is a test that is applied by many human rights systems to all forms of detention.204 Because detention is perceived as a more significant limitation of rights than a restriction on movement, at this second level of analysis too there is incentive in the grey zones to label acts as restrictions on movement as they are more likely to be adjudged as proportional responses. For instance, in its proportionality analyses pertaining to freedom of movement, the ECtHR has recognised that ‘situations commonly occur in modern society where the public may be called upon to endure restrictions on freedom of movement or liberty in the interests of the common good’,205 ‘so long as they are rendered unavoidable as a result of circumstances beyond the control of the authorities, are necessary to avert a real risk of serious injury or damage, and are kept to the minimum required for that purpose’.206

Human rights courts have some room to manoeuvre in how they label these grey zones because, after all, they are assessing facts and contexts, and some contingency is simply inherent. But there should be limits to the manoeuverability. However, as is explained in several forthcoming chapters, avoiding the label of “detention” has become yet a further tool to avoid upending governmental programmes of confinement. For example, the ECtHR has held that refugees and migrants exercised their free will to enter the transit zone and were therefore consenting to their confinement, and thus they could not be considered as being subjected to “detention”.207 When up to 2,000 people were contained within a police cordon (a measure known as “kettling”) at Oxford Circus in London without access to food, water or toilets, the ECtHR Grand Chamber held that this did not amount to “detention”.208 Persons are frequently subjected to confinement in the private sphere for reasons linked to gender, such as persons subjected to forced marriages, women confined to the home unless they have a male chaperone, LGBTI+ persons forcibly confined by family or community members to undergo “rehabilitation” or other coercive rituals and persons confined for the purpose of sexual slavery.209 For the most part these contexts have not been considered under the lens of arbitrary detention, though arguably they could be.210

At the other end of the spectrum there is the WGAD’s opinion on Julian Assange.211 Assange remained in his place of confinement (the Ecuadorian embassy) because he had reason to believe that he would suffer significant injustice, including persecution, inhuman treatment and physical harm, if he were to leave and, as the WGAD found, his autonomy to leave the embassy was thereby compromised. Consequently, he argued, and the WGAD found, his confinement in the embassy was not “self-imposed”. This is a reasonable proposition in light of the principles espoused in Guzzardi, though the position, and the WGAD Opinion that resulted, have not been free from criticism.212 At the heart of the criticism of the WGAD opinion is whether Assange could use the arguments about mistrust of the legal system forcing him to stay confined to avoid the implementation of an arrest warrant that had been validly issued by a court of law known for its judicial independence.213 But what leeway if any should decision-makers be giving to courts “known for” anything at all? Does this not strike as Çali’s concerns about the deference shown by judges or courts towards the ‘good faith interpreters’ that they trust?214 Is there not too great a risk of arbitrariness when judges choose deference instead of the facts they find before them?

We could add another permutation to the Assange “self-imposed” (according to some) detention and arrive at the perplexing situation of the eight Rwandan nationals acquitted by the International Criminal Tribunal for Rwanda or whose sentences issued by that Tribunal had been served. Given their well-founded fears of persecution, these persons ostensibly at liberty could not be transferred to Rwanda. Ultimately, they voluntarily agreed to be transferred to Niger on the undertaking that they would be provided with residency permits, be allowed to work and travel,215 and pursuant to a Relocation Agreement agreed on 15 November 2021 by Niger and the Registrar of the International Residual Mechanism for Criminal Tribunals on behalf of the United Nations. Instead, on 27 December 2021 the Nigerien authorities issued an order requiring the eight individuals to leave Nigerien territory within seven days, confiscated their identity documents, and placed them under house arrest under armed guard where, at the time of writing in August 2023, they remained. Surely, the house arrest they currently experience was not “self imposed” given that what they had previously agreed to had not materialised, and they are not free to leave, as no other state has offered protection, and the Residual Mechanism has thus far refused to approve their relocation to The Hague.216 Clearly Niger is responsible for their arbitrary detention, but what of the parallel responsibility of the Residual Mechanism operating under the auspices of the United Nations, and the states parties to the United Nations, all required pursuant to Security Council Resolution 955(1994) to cooperate with the Rwanda Tribunal, and the Residual Mechanism that followed (not excluding those aspects of cooperation which pertain to relocations)?217 While the responsibility of international organisations is a vast topic outside the scope of this book,218 certainly the Residual Mechanism has a continuing duty of care to the eight men to ensure enforcement of the Relocation Agreement that it brokered, failing which to secure another solution. Who is responsible for these failed efforts?

While there are good reasons not to blur the distinctions between the denial of freedom of movement and arbitrary detention, or indeed to subsume inappropriately any number of problematic situations within the frame of arbitrary detention, there is sense in continually evaluating whether current descriptions, focuses and lenses are sufficiently encompassing of all persons and contexts. But too much room to manoeuvre makes the arbiters of the facts no better, no more fair or consistent, than the arbitrary rule of the sovereigns – the application of blind power on the basis of pure will, which gave rise to the earliest conceptions of arbitrariness introduced at the outset of this chapter. So, we risk ending this chapter where we started.

2.7 Conclusions

Theories about “arbitrariness” are useful lenses through which to observe and comment upon power relations whether in governance, social relations or the rule of law. Many of these theories were conceived in different times, though the concerns they raise about how best to restrain arbitrary state power and promote equality still resonate today. Today’s highly contested political landscape must also tackle the added concerns of political disenfranchisement, widening power imbalances and inequalities, private actors supplanting weak public authority, and growing mistrust of facts and truths. Conceptions of “arbitrariness” must therefore evolve to remain relevant.

Arbitrary detention is outlawed by international law in all circumstances without exception. What constitutes arbitrary detention is reasonably clear. It includes both the requirement that a particular form of deprivation of liberty is taken in accordance with the applicable law and procedure and that it is proportional to the aim sought, reasonable and necessary. This framing of arbitrary detention is meant to ensure that detention remains exceptional and any decision to detain is subject to law, reasoned, necessary, proportionate and non-discriminatory. But, as with any definition that refrains from providing an enumerated list of instances of detention that would be recognised as arbitrary, there is debate about which factual scenarios would qualify as permissible grounds to detain or, conversely, which scenarios are inherently arbitrary, and what steps are required to determine the permissibility of detention in individual cases.

The absence of an enumerated list is meant to ensure that conceptions of arbitrariness can evolve to account for modern-day concerns. After all, a certain amount of vagueness is needed to be capable of ‘coping appropriately with the complexity of public disorder’.219 However, there is a countervailing tendency for policy and decision-makers to use the malleability of the concept and shape it to suit short-term goals. This is perhaps most evident in how proportionality analyses have broached both qualified and limited rights. These analyses set us on a path of contingency in which the “arbitrariness” of arbitrary detention may result in inconsistent or diverging interpretations (impeding the overall coherence of the case law). It also has the potential to become a shape-shifting void of nothing but pernicious manipulations or, as Bourdieu and Passeron might posit,220 a targeted appropriation of the contingency that reinforces domination, oppression and violence, or an empty receptable in which to fill the violence and domination of the status quo. In such scenarios the well-meaning advocates tend to wish for more concrete understandings to foster greater certainty, transparency and accountability in how decisions to detain are taken. But this too is part of the inevitable push–pull, and we must be conscious of our placement in the status quo. What escapes us still is a framework for analysis and accountability as to why the decision to detain particular individuals and groups was taken, and why the decision was normalised.

1

However, Wright argues in relation to its usage in administrative law that ‘the meaning of “arbitrary” will change significantly as context and the underlying, possibly conflicting, purposes, interests, and stakes vary. The significance, degree, and frequency of the changes of meaning of arbitrary lead to the conclusion that it is more misleading than helpful to imagine that arbitrary has a standard, convenient, legal definition, even in particular legal contexts, such as judicial review of administrative actions’: R George Wright, ‘Arbitrariness: Why the Most Important Idea in Administrative Law Can’t Be Defined, and What This means for the Law in General’ (2010) 44(2) U Rich L Rev 839, 846.

2

Charlton Lewis and Charles Short, A Latin Dictionary (Clarendon Press 1879).

3

‘arbitrary, adj. and n.’, OED Online (OUP June 2022) <www.oed.com/view/Entry/10180?redirectedFrom=arbitrary&> accessed 26 July 2022.

4

‘arbitrariness’, Black’s Law Dictionary 104 (11th edn, Thomson Reuters 2019).

5

arbitraire’, unofficial translation, Encyclopédie, ou Dictionnaire raisonné des sciences, des arts et des métiers, vol. 1 (1st edn, Denis Diderot and Jean Le Rond d’Alembert 1751) 578.

6

OED Online (n 3).

7

Thomas Franck, Fairness in International Law and Institutions (OUP 1995) 7.

8

Joseph William Singer, ‘The Player and the Cards: Nihilism and Legal Theory’ (1984) 94(1) Yale LJ 1, 12.

9

Enrica Rigo, ‘Arbitrary Law Making and Unorderable Subjectivities in Legal Theoretical Approaches to Migration’ (2020) 14(2) Etikk I Praksis – Nordic J Applied Eth 71, 79.

10

Wright (n 1) 841.

11

Lincoln Moses, Think and Explain with Statistics (Addison-Wesley 1986).

12

David Schmidtz, The Elements of Justice (CUP 2006) 218.

13

Ben Saunders, ‘The Equality of Lotteries’ (2008) 83(3) Philosophy 359, 363.

14

Seyla Benhabib, The Rights of Others: Aliens, Residents, and Citizens (CUP 2004) 15.

15

Lynn Jansen and Steven Wall, ‘Weighted Lotteries and the Allocation of Scarce Medications for Covid-19’ (2021) 51(1) Hastings Center Report 39.

16

Oliver Dowlen, The Political Potential of Sortition (Imprint Academic 2008) 15–16.

17

Pierre Bourdieu and Jean-Claude Passeron, Reproduction in Education, Society, and Culture (Sage 1977) 5.

18

Pierre Bourdieu, Outline of a Theory of Practice (CUP 1977) 165–166.

19

John Locke, The Second Treatise of Civil Government, ed. John W Gough (Basil Blackwell 1946) ‘On the Extent of Legislative Power’.

20

Phillip Pettit, Republicanism: a Theory of Freedom and Government (Clarendon Press 1997).

21

Pettit (n 20) 67. For an extrapolation of the analysis on freedom as non-domination to international institutions, see Carmen Pavel, ‘The International Rule of Law’ (2020) 23(3) Crit Rev Intl Soc & Pol Phil 332, 334.

22

Pettit (n 20) 65. These ideas are further explored in Phillip Pettit, ‘The Common Good’, in Keith Dowding et al, Justice and Democracy: Essays for Brian Barry (CUP 2004) 150, 151–158.

23

Frank Lovett, A General Theory of Domination and Justice (OUP 2010) 96.

24

Lovett (n 23) 96.

25

Phillip Pettit, ‘Keeping Republican Freedom Simple’ (2002) 30 Political Theory 339.

26

AV Dicey, Introduction to the Study of the Law of the Constitution (10th edn, Macmillan 1964) 188.

27

Dicey (n 26).

28

Judith Shklar, ‘Political Theory and the Rule of Law’, in Allan Hutchinson and Patrick Monahan (eds), The Rule of Law: Ideal or Ideology (Carswell 1987) 13–14; Ernst Fraenkel and Jens Meierhenrich, The Dual State: a Contribution to the Theory of Dictatorship (Oxford 2017).

29

Lovett (n 23) 99.

30

Jeremy Waldron, Law and Disagreement (OUP 1999) 167–168.

31

Timothy Endicott, ‘The Impossibility of the Rule of Law’, in Endicott, Vagueness in Law (OUP 2000) 188, 192.

32

Endicott (n 31) 187, 203; Martin Loughlin, ‘Rechtsstaat, Rule of Law, l’Etat de droit’, in Loughlin, Foundations of Public Law (OUP 2010) 312. See, also, Mary Liston, ‘Governments in Miniature: the Rule of Law in the Administrative State’, in Lorne Sossin and Colleen Flood (eds), Administrative Law in Context (Emond Montgomery 2013) 39, who argues that ‘[t]he principle of the rule of law is animated by the need to prevent and constrain arbitrariness within the exercise of public authority by political and legal officials in terms of process, jurisdiction, and substance’ (41).

33

Elettronica Sicula S.p.A. (ELSI) (USA v Italy) [1989] ICJ Rep 15, [128]. For further discussion of this standard under international investment law, see Jacob Stone, ‘Arbitrariness, the Fair and Equitable Treatment Standard, and the International Law of Investment’ (2012) 25(1) Leiden J Intl L 77, 85–105; Veijo Heiskanen, ‘Arbitrary and Unreasonable Measures’, in August Reinisch (ed), Standards of Investment Protection (OUP 2008) 87–110; Kurt Hamrock, ‘The ELSI Case: Toward an International Definition of Arbitrary Conduct’ (1992) 27 Texas Intl LJ 837; August Reinisch and Christoph Schreuer, ‘Protection against Arbitrary or Discriminatory Measures’, in International Protection of Investments: the Substantive Standards (CUP 2020).

34

John Rawls, ‘Justice as Fairness: Political not Metaphysical’ (1985) 14 Philosophy and Public Affairs 223; Justice as Fairness: a Restatement (Belknap Press 2001); A Theory of Justice (revised edn, Harvard University Press 1999).

35

Rawls, A Theory of Justice (n 34) 64–65.

36

Rawls, A Theory of Justice (n 34) 86, 87.

37

Rawls, A Theory of Justice (n 34) 5

38

Rainer Forst, ‘The Point of Justice: On the Paradigmatic Incompatibility between Rawlsian “Justice as Fairness” and Luck Egalitarianism’, in Jon Mandle and Sarah Roberts-Cady (eds), John Rawls: Debating the Major Questions (OUP 2020) 157.

39

Note however, that in Rawls’ theory, equal liberties and equal opportunities have lexical priority to the difference principle, which should prevent arbitrary factors from being decisive. See, John Rawls, ‘Justice as Fairness: Political not Metaphysical’ (n 34) 227–228.

40

Rudolf Virchow, ‘The Ministry of Health’, in LJ Rather (ed), Collected Essays on Public Health and Epidemiology, vol. 1 (Amerind Publishing 1985) 6–13, referred to in Steven Jensen, ‘Human Rights against Human Arbitrariness: Pandemics in a human rights historical perspective’, in Morten Kjaerum, Martha Davis and Amanda Lyons (eds), COVID-19 and Human Rights (Routledge 2021) 6.

41

See, for example, Robert Nozick, Anarchy, State and Utopia (Basic 1974) 213–227; Robert Nozick, ‘Distributive Justice’ (1973) 3(1) Philosophy & Public Affairs 45; Friedrich Hayek, Social Justice, Socialism, and Democracy (Centre for Independent Studies 1979) 39.

42

Gerald Cohen, ‘On the Currency of Egalitarian Justice’ (1989) 99(4) Ethics 906.

43

Lovett (n 23); Phillip Pettit (n 25).

44

See, for example, Amartya Sen, The Idea of Justice (Harvard University Press, 2009) 52–74; Susan Moller Okin, Justice, Gender and the Family (Basic Books 1989); Nancy Fraser, Scales of Justice: Reimagining Political Space in a Globalizing World (Columbia University Press 2009).

45

Katrina Forrester, In the Shadow of Justice: Post War Liberalism and the Remaking of Political Philosophy (Princeton University Press 2019); Iris Marion Young, Justice and the Politics of Difference (Princeton University Press 1990).

46

Chantal Mouffe, ‘Rawls: Political Philosophy Without Politics’ (1987) 13(2) Philosophy & Social Criticism 105, 114–115.

47

Hersch Lauterpacht, Oppenheim’s International Law (8th edn, Longmans 1955) 345.

48

Trail Smelter Arbitration (USA v Canada) (1938/1941) III RIAA 1904, 1965.

49

Braganza v BP Shipping Ltd [2015] UKSC 17.

50

See, for example, Abu Dhabi National Tanker Co v Product Star Shipping Ltd (The Product Star) (No. 2) [1993] 1 Lloyd’s Rep 397 (CA), 404 (Leggatt LJ); Yam Seng Pte Ltd v International Trade Corpn [2013] EWHC 111 (QB); Wastech Services Ltd v Greater Vancouver, 2021 SCC 7. See, also, Rigo (n 9) 74; Jacob Gersen and Adrian Vermeule, ‘Thin Rationality Review’ (2016) 114 Mich L Rev 1355; Lisa Bressman, ‘Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State’ (2003) 78 NYU L Rev 461, 496.

51

Offences and penalties must be both accessible and foreseeable to prevent arbitrariness by domestic courts. See Peter Westen, ‘Two Rules of Legality in Criminal Law’ (2007) 26(3) Law and Philosophy 229.

52

For example, Shankar Narayanan, ‘Rethinking Non-Arbitrariness’ (2017) 4 NLUD Student Law Journal 133; Marc Ribiero, Limiting Arbitrary Power: the Vagueness Doctrine in Canadian Constitutional Law (UBC Press 2004).

53

Art 6(1) International Covenant on Civil and Political Rights (ICCPR) (adopted 16 December 1966, entered into force 23 March 1976): ‘No one shall be arbitrarily deprived of his life’; Art 4(1) American Convention on Human Rights (ACHR) (adopted 22 November 1969, entered into force 18 July 1978); Art 4 African Charter on Human and Peoples’ Rights (ACHPR) (adopted 27 June 1981, entered into force 21 October 1986); Art 5(2) Arab Charter on Human Rights (Arab Charter) (adopted 15 September 1994, League of Arab States).

54

Art 9(1) ICCPR: ‘No one shall be subjected to arbitrary arrest or detention’; Art 37(b) Convention on the Rights of the Child (CRC) (adopted 20 November 1989, entered into force 2 September 1990): ‘No child shall be deprived of his or her liberty unlawfully or arbitrarily’; Art 14(1)(b) Convention on the Rights of Persons with Disabilities (CRPD) (adopted on 13 December 2006, entered into force on 3 May 2008): ‘are not deprived of their liberty unlawfully or arbitrarily’; Art 16(4) Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CPRMW) (adopted 18 December 1990, entered into force 1 July 2003): ‘Migrant workers and members of their families shall not be subjected individually or collectively to arbitrary arrest or detention’; Art 7(3) ACHR; Art 6 ACHPR; Art 14(1) Arab Charter; Art 12 ASEAN Human Rights Declaration (adopted 18 November 2012, Heads of State/Government of ASEAN Member States).

55

Art 12(4) ICCPR: ‘No one shall be arbitrarily deprived of the right to enter his own country’; Art 18(1)(d) CRPD.

56

Art 20(3) ACHR; Art 29(1) Arab Charter; Art 18 ASEAN Human Rights Declaration.

57

Art 27(1) Arab Charter: ‘No one may be arbitrarily or unlawfully prevented from leaving any country, including his own, nor prohibited from residing, or compelled to reside, in any part of that country.’

58

Art 17(1) ICCPR: ‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation’; Art 16(1) CRC; Art 22(1) CRPD; Art 14 CPRMW; Art 11(2) ACHR; Art 21(1) Arab Charter; Art 21 ASEAN Human Rights Declaration.

59

Art 12(5) CRPD; Art 15 CPRMW; Art 31 Arab Charter; Art 17 ASEAN Human Rights Declaration.

60

Bourdieu (n 18) 165–156.

61

Donald Kagan, ‘The Origin and Purposes of Ostracism’ (1961) 30(4) Hesperia 393.

62

Jensen (n 40), referring to Virchow.

63

Thomas Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (2nd edn, Polity 2008) 3.

64

Phillip Cole, ‘Human Rights and the National Interest: Migrants, Healthcare and Social Justice’ (2007) J Med Ethics 269, 272.

65

Cole (n 64) 270. Cole’s argument is further developed in Philip Cole, ‘Taking Moral Equality Seriously: Egalitarianism and Immigration Controls’ (2012) 8(1–2) J Intl Political Theory 121. See, also, Geert Demuijnck, ‘Poverty as a Human Rights Violation and the Limits of Nationalism’, in Andreas Follesdal and Thomas Pogge (eds), Real World Justice (Springer 2006) 65–83; Seyla Benhabib, ‘The Law of Peoples, Distributive Justice and Migrations’ (2004) 72 Fordham L Rev 1761.

66

Catharine McKinnon, Feminism Unmodified (Harvard University Press 1987) 41.

67

Human Rights Committee, ‘General Comment No 36 (2018) on Article 6 of the ICCPR, on the Right to Life’ (30 October 2018) UN Doc CCPR/C/GC/36, paras 44, 61.

68

Furman v Georgia, 408 US 238 (1972).

69

Ibid, 408.

70

David Baldus et al, ‘Racial Discrimination and the Death Penalty in the Post-Furman era: an Empirical and Legal Overview with Recent Findings from Philadelphia’ (1997) 83 Cornell L Rev 1638.

71

Khosa v Minister of Social Development 2004(6) BCLR 569 (CC), para 53. See, also, for landmark Indian constitutional court jurisprudence, Maneka Gandhi v Union of India AIR 1978 SC 597.

72

UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No 14: the Right to the Highest Attainable Standard of Health (Art 12 of the Covenant)’ (11 August 2000) UN Doc E/C.12/2000/4, para 4; World Health Organization/Commission on the Social Determinants of Health, Closing the Gap in a Generation. Health Equity through Action on the Social Determinants of Health (2008). See, generally, Brigit Toebes and Karien Stronks, ‘Closing the Gap: a Human Rights Approach towards Social Determinants of Health’ (2016) 23(5) Eur J Health L 510.

73

Toebes and Stronks (n 72).

74

Alicia Ely Yamin, ‘Shades of Dignity: Exploring the Demands of Equality in Applying Human Rights Frameworks to Health’ (2009) 11 Health & Hum Rts 1, 2.

75

Alana Klein, ‘The Arbitrariness in “Arbitrariness” (And Overbreadth and Gross Disproportionality): Principle and Democracy in Section 7 of the Charter’ (2013) 63 Supreme Ct L Rev: Osgoode’s Annual Constitutional Cases Conference 377, 384.

76

Timothy Endicott, ‘The Coxford Lecture: Arbitrariness’ (2014) 27(1) Can J Law & Jur 49.

77

Michelle Brear, ‘Silence and Voice in Participatory Processes – Causes, Meanings and Implications for Empowerment’ (2020) 55(2) Comm Dev J 349.

78

Bourdieu and Passeron (n 17) 5.

79

See, for example, Jonathan Doak, Victims’ Rights, Human Rights and Criminal Justice: Reconceiving the Role of Third Parties (Bloomsbury 2008).

80

Rashida Manjoo, ‘Introduction: Reflections on the Concept and Implementation of Transformative Reparations’ (2017) 21(9) Intl J Hum Rts 1193.

81

Sara Kendall and Sarah Nouwen, ‘Representational Practices at the International Criminal Court: the Gap Between Juridified and Abstract Victimhood’ (2014) 76 Law & Contemp Prob 235, 241.

82

On the arbitrariness of certain reparations processes, see Carla Ferstman, ‘Reparations at the ICC: the Need for a Human Rights Based Approach to Effectiveness’, in Carla Ferstman and Mariana Goetz (eds), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity: Systems in Place and Systems in the Making. Second Revised Edition (Brill 2020) 446, 477.

83

Sara Kendall, ‘Juridified Victimhood at the ICC’, in Rudina Jasini and Gregory Townsend (eds), Advancing the Impact of Victim Participation at the International Criminal Court: Bridging the Gap Between Research and Practice (30 November 2020) <www.law.ox.ac.uk/sites/files/oxlaw/iccba_-_oxford_publication_30_november_2020_.pdf> 137, 142 accessed 10 July 2023.

84

See, for example, UNCERD, General Recommendation No 23, Rights of Indigenous Peoples (Fifty-First Session, 1997) (18 August 1997) UN Doc A/52/18, annex V, para 4 (calling upon states to take certain measures to recognise and ensure the rights of indigenous peoples); Lorenzo Cotula, ‘Between Hope and Critique: Human Rights, Social Justice and Re-Imagining International Law from the Bottom up’ (2020) 48 Ga J Intl & Comp L 473; UN, Guiding Principles on Business and Human Rights: Implementing the UN Protect, Respect and Remedy Framework (2011) UN Doc HR/PUB/11/04.

85

African Commission on Human and Peoples’ Rights v Republic of Kenya (Reparations) (ACommHPR, 23 June 2022) App No 006/2012, para 142.

86

Saramaka People v Suriname (Preliminary Objections, Merits, Reparations, and Costs) Series C No 172 (IACtHR 28 November 2007) paras 133–137.

87

Economic Commission for Latin America and the Caribbean (ECLAC), ‘Access to Information, Participation, and Justice in Environmental Matters in Latin America and the Caribbean: towards Achievement of the 2030 Agenda for Sustainable Development’ (October 2018) LC/TS.2017/83, 13.

88

Taxquet v Belgium (Grand Chamber) App No 926/05 (ECtHR, 16 November 2010).

89

There are some rights such as the prohibition of torture which are recognised as absolute – there can never be a legitimate justification to perpetrate torture.

90

For example, Arts 6(1), 9(1) ICCPR.

91

For example, Art 5(1) European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (adopted 4 November 1950, entered into force 3 September 1953).

92

Universal Declaration of Human Rights (UDHR), General Assembly Resolution 217 A (10 December 1948) Art 29.

93

Human Rights Committee, General Comment No 16: Article 17 (Right to Privacy) Compilation of General Comments and General Recommendations, UN Doc HRI/GEN/1/Rev.1, 21 (1994).

94

Art 4 International Covenant on Economic, Social and Cultural Rights (ICESCR) (adopted 16 December 1966, entered into force 3 January 1976).

95

Committee on Economic, Social and Cultural Rights, Fact Sheet No.16 (Rev.1) (May 1996).

96

Timothy Endicott, ‘Proportionality and Incommensurability’, in Grant Huscroft, Bradley Miller and Grégoire Webber (eds), Proportionality and the Rule of Law: Rights, Justification, Reasoning (CUP 2014) 311. Scholars such as Habermas have argued that the balancing of rights and interests is essentially a policy exercise void of objectivity in which judges base their decisions on excessive discretion. See Juergen Habermas, Between Facts and Norms (trans. W Rehg) (Cambridge 1996) 256–259.

97

As Çali notes: ‘[A]ny exercise of balancing implies an image of weights assigned to values and a head to head comparison of these weights. In order for a balancing exercise to work, the differences between important interests have to be differences in degree. In the field of human rights protection, this view assumes that human rights are in constant competition with communal aims. Therefore, it overlooks that differences in kind between interests and values are not susceptible to weighing on a single scale’: Başak Çali, ‘Balancing Human Rights? Methodological Problems with Weights, Scales and Proportions’ (2007) 29(1) Hum Rts Q 251, 256–257.

98

The Sunday Times v United Kingdom App No 6538/74 (ECtHR, 26 April 1979) para 49.

99

IACommHR, Office of the Special Rapporteur for Freedom of Expression, The Inter-American Legal Framework regarding the Right to Freedom of Expression (2010) para 70.

100

For example, Art 19(3) ICCPR.

101

S.A.S. v France (Grand Chamber) App No 43835/11 (ECtHR, 1 July 2014) paras 141–159.

102

Çali (n 97) 263.

103

Handyside v United Kingdom App No 5493/72 (ECtHR, 7 December 1976) para 48.

104

Bourdieu and Passeron (n 17) 5. See, also, Louis Althusser, On the Reproduction of Capitalism: Ideology and Ideological State Apparatuses (Verso 2014).

105

Art 17 ICCPR; Art 11(2) ACHR; Art 8 ECHR; Art 16(3) UDHR.

106

Human Rights Council (HRC), ‘The Right to Privacy in the Digital Age’, Report of the Office of the UN High Commissioner for Human Rights (30 June 2014) UN Doc A/HRC/27/37, para 21.

107

Toonen v Australia, Comm No 488/1992, UN Doc CCPR/C/50/D/488/1992 (31 March 1994) para 8.3. See, also, Van Hulst v The Netherlands, Comm No 903/1999, UN Doc CCPR/C/82/D/903/1999 (1 November 2004) para 7.3 (regarding unlawful interference with the right to privacy).

108

Human Rights Committee, ‘General Comment No 16: Article 17 (Right to Privacy)’ (n 93).

109

Neither the ICCPR nor the ACHR sets out a list of permissible limitations.

110

Art 8(2) ECHR.

111

Airey v Ireland App No 6289/73 (ECtHR, 9 October 1979).

112

Christine Goodwin v United Kingdom (Grand Chamber) App No 28957/95 (ECtHR, 11 July 2002) para 91.

113

Guglielmo Verdirame, ‘Rescuing Human Rights from Proportionality’, in Rowan Cruft et al, Philosophical Foundations of Human Rights (OUP 2015), 341, 348.

114

McCann, Farrell, and Savage v United Kingdom (Grand Chamber) App No 18984/91 (ECtHR, 27 September 1995) paras 147–150.

115

Art 6(1) ICCPR; Art 4(1) ACHR; Art 4 ACHPR; Art 5(2) Arab Charter all refer to the prohibition of the “arbitrary” deprivation of life. Art 2(1) ECHR; Art 6 CRC; Art 10 CPRMW; Art 11 ASEAN Human Rights Declaration; Art 4(a) Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (‘Convention of Belem do Para’) (adopted 9 June 1994, entered into force 5 March 1995); and Art 10 CRPD do not use the word “arbitrary” in the respective provisions on the right to life though the prohibition of arbitrary interferences with the right to life can be gleaned from the texts and their interpretations.

116

Art 2(1) and (2) ECHR.

117

Giuliani and Gaggio v Italy (Grand Chamber) App No 23458/02 (ECtHR, 24 March 2011) para 209; Nachova v Bulgaria (Grand Chamber) App Nos 43577/98, 43579/98 (ECtHR, 6 July 2005) paras 99–102.

118

McCann v United Kingdom (n 114) para 161.

119

Human Rights Committee, General Comment No 36 (n 67) paras 10–12.

120

Ibid. See, also, Human Rights Committee, Suárez de Guerrero v Colombia, Comm No R.11/45, UN Doc Supp. No 40 (A/37/40) (31 March 1982) para 13.2.

121

Human Rights Committee, General Comment No 36 (n 67) para 11.

122

Ibid para 12. See, also, UNGA, ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions’, UN Doc A/73/314 (7 August 2018) para 15.

123

Art 4 ACHPR; Art 4(1) ACHR.

124

Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, para 25. Exactly how much consideration should be given to IHL is subject to debate. See, for example, Marko Milanović, ‘Norm Conflicts, International Humanitarian Law, and Human Rights Law’, in Orna Ben-Naftali (ed), International Humanitarian Law and International Human Rights Law, Collected Courses of the Academy of European Law (OUP 2011) 95, 99–101.

125

Volodina v Russia App No 41261/17 (ECtHR, 9 July 2019) para 77 (referring to positive obligations under Art 3 ECHR).

126

This is the argument put forward by Matthias Klatt in ‘Positive Obligations under the European Convention on Human Rights’ (2011) 71 Heidelberg J Intl L 691, 695, where he argues that for positive obligations, the proportionality test ‘necessarily contains two lines of values: Both the intensity of interference by non-protection and the degree of protection are required in order to assess whether the prohibition of insufficient means has been violated’ (718).

127

Vladislava Stoyanova, ‘Framing Positive Obligations under the European Convention on Human Rights Law: Mediating between the Abstract and the Concrete’ (2023) 23 Hum Rts L Rev 1, 10.

128

Hämäläinen v Finland (Grand Chamber) App No 37359/09 (ECtHR, 16 July 2014) para 66. In denying the existence of a violation, the Grand Chamber held that given the sensitive moral and ethical issues raised by the case and the absence of a European consensus, Art 8 did not require states to provide for non-heterosexual marriages nor to accord the right of a transgender person to preserve their marriage. See, the joint dissenting opinion of Judges Sajó, Keller and Lemmens in the Hämäläinen case (ibid) in which it is argued that the interference is not necessary in a democratic society (para 14). A similar approach to the majority in Hämäläinen is Johnston et al v Ireland App No 9697/82 (ECtHR, 18 December 1986) where the Court held that Art 8 cannot be regarded as extending to an obligation to introduce measures permitting divorce and re-marriage (para 57; see, also, para 55(c)).

129

Hämäläinen v Finland (Grand Chamber) App No 37359/09 (ECtHR, 16 July 2014) para 67.

130

Öllinger v Austria App No 76900/01 (ECtHR, 29 June 2006).

131

Human Rights Committee, General Comment No 36 (n 67) para 21.

132

Human Rights Committee, General Comment No 36 (n 67) para 23.

133

Human Rights Committee, General Comment No 36 (n 67) para 26.

134

Art 9 UDHR; Art 9(1) ICCPR; Art 7 ACHR; Art 6 ACHPR; Art 5 ECHR; Art 14 Arab Charter; Art 12 ASEAN Human Rights Declaration; Art 14(1) CRPD; Art 37(b) CRC; Art 16 CPRMW.

135

UN Commission on Human Rights, ‘Study of the right of everyone to be free from arbitrary arrest, detention, and exile’ (1964) UN Doc E/CN.4/826/Rev.1, para 54.

136

Ibid.

137

Ibid para 1. See, also, UN Commission on Human Rights, Report of the 12th session (5–29 March 1956) UN Doc E/CN.4/731, particularly paras 72–83.

138

Study of the right of everyone to be free from arbitrary arrest, detention, and exile (n 135) paras 24–27.

139

Ibid para 27.

140

Ibid paras 58–68.

141

Ibid paras 72–74.

142

Ibid paras 211–223.

143

Ibid paras 731–736.

144

Ibid para 737.

145

Ibid paras 738–740.

146

Ibid paras 741–742.

147

Ibid paras 743–744.

148

Ibid paras 753–787.

149

General Assembly Resolution 43/173 (9 December 1998).

150

UN Commission on Human Rights, Resolution 1991/42 (5 March 1991) UN Doc E/CN.4/RES/1991/42.

151

WGAD, ‘Deliberation No 9 concerning the definition and scope of arbitrary deprivation of liberty under customary international law’, UN Doc A/HRC/22/44 (24 December 2012) para 75.

152

Human Rights Committee, ‘General Comment No 29: States of Emergency (Article 4)’, UN Doc CCPR/C/21/Rev.1/Add.11 (31 August 2001) para 11.

153

Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, ‘General Comment No 5 (2021) on Migrants’ Rights to Liberty and Freedom from Arbitrary Detention and their Connection with Other Human Rights’, (21 July 2022) UN Doc CMW/C/GC/5 para 16: ‘The prohibition of arbitrary detention is absolute; it is a non-derogable rule of customary international law, or a jus cogens norm. The prohibition of arbitrary deprivation of liberty also protects migrants…’.

154

Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) [1980] ICJ Rep 3, para 91.

155

ICRC, ‘Customary International Law Database’ (undated) <www.icrc.org/customary-ihl/eng/docs/home> accessed 11 July 2023, Rule 99: Arbitrary deprivation of liberty is prohibited.

156

Mukong v Cameroon, Comm No 458/1991, UN Doc CCPR/C/51/D/458/1991 (21 July 1994) para 9.8. See, also, UN Human Rights Committee, General Comment No 35, Article 9 (Liberty and Security of Person) (16 December 2014) UN Doc CCPR/C/GC/35 para 12; Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, General Comment No 5 (n 153) para 19: arbitrary detention is ‘any deprivation of liberty that exceeds the limits of reasonableness. It is not sufficient for the detention to pursue a legitimate purpose and be permitted by law, rather, it must meet the criteria of necessity and proportionality, be based on an individualized assessment and be periodically reassessed to ensure that it continues to meet those criteria.’

157

A v United Kingdom (Grand Chamber) App No 3455/05 (ECtHR, 19 February 2009) para 164.

158

Van Alphen v The Netherlands, Comm No 305/1988, UN Doc A/45/40 (15 August 1990) para 5.8.

159

Human Rights Committee, ‘General Comment No 8: Article 9 (Right to Liberty and Security of Persons)’ (30 June 1982) para 4, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.1 at 8 (1994). This (and other contexts of detention which may give rise to arbitrariness) are expanded upon in General Comment No 35 (n 156).

160

Human Rights Committee, General Comment No 35 (n 156) para 12.

161

Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, General Comment No 5 (n 153) paras 16, 17.

162

See, for example, Tibi v Ecuador (Preliminary Objections, Merits, Reparations and Costs) Series C No 114 (7 September 2004) paras 94–98; Case of Gangaram Panday v Surinam (Merits, Reparations and Costs) Series C No 16 (21 January 1994) para 47; Vélez Loor v Panama (Preliminary Objections, Merits, Reparations and Costs) Series C No 218 (23 November 2010) para 139.

163

See, for example, IACommHR, Toward the Closure of Guantánamo (3 June 2015) OAS/Ser.L/V/II. Doc 20/15.

164

Jean-Marie Atangana Mebara v Cameroon, Comm No 416/12 (ACommHPR, 8 August 2015); Amnesty International v Sudan, Comm Nos 48/90, 50/91, 52/91, and 89/93 (ACommHPR, 15 November 1999).

165

WGAD, ‘Deliberation No 9 Concerning the Definition and Scope of Arbitrary Deprivation of Liberty under Customary International Law’, UN Doc A/HRC/22/44 (24 December 2012) para 63.

166

Ibid para 38.

167

Arts 9(2) and 9(3) ICCPR.

168

A v Australia, Comm No 560/1993 UN Doc CCPR/C/59/D/560/93 (30 April 1997).

169

Ibid para 9.3.

170

Ibid para 9.2.

171

Ibid para 9.4.

172

Campbell v Jamaica, Comm No 618/1995, UN Doc CCPR/C/64/D/618/1995 (3 November 1998) para 6.3.

173

Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, General Comment No 5 (n 153) para 17 (emphasis added).

174

HRC, ‘Report of the Special Rapporteur on the Human Rights of Migrants, François Crépeau to the UN Human Rights Council (20th session)’ UN Doc A/HRC/20/24 (2 April 2012) para 53.

175

See, for example, Chaparro Alvarez and Lapo Iniguez v Ecuador (Preliminary Objections, Merits, Reparations, and Costs) Series C No 170 (21 November 2007) para 93.

176

Mebara v Cameroon (n 164) paras 125–131.

177

McCann, Farrell, and Savage v United Kingdom (n 114).

178

Amuur v France App No 19776/92 (ECtHR, 25 June 1996) para 50. However, see Saadi v UK App No 13229/03 (ECtHR, 29 January 2008) paras 67–74, discussed in more detail in Chapter 4 of this book.

179

Article 5(1)(c) ECHR.

180

WGAD, ‘Report of the Working Group on Arbitrary Detention’ UN Doc A/HRC/10/21 (10 February 2009) para 54(b).

181

García Asto and Ramírez Rojas v Peru, García Tuesta (on behalf of García Asto and Ramírez Rojas) v Peru (Preliminary Objection, Merits, Reparations, and Costs) Series C No 137 (25 November 2005) para 106.

182

Saadi v UK (n 178) paras 67–74.

183

A v Australia (n 168) para 9.2. See, for example, Helen O’Nions, ‘No Right to Liberty: the Detention of Asylum Seekers for Administrative Convenience’ (2008) 10(148) Eur J Mig & L 149; Cathryn Costello, ‘Human Rights and the Elusive Universal Subject: Immigration Detention Under International Human Rights and EU Law’ (2012) 19(1) Indiana J Global L Stud 257; Violeta Moreno-Lax, ‘Beyond Saadi v UK: Why the Unnecessary Detention of Asylum Seekers is Inadmissible under EU Law’ (2011) 5(2) Hum Rts & Intl Leg Disc 166.

184

All “qualified” rights subject to classic proportionality analyses to determine whether infringements may be lawful. See sub-section 2.4.2(i) of this chapter.

185

London Borough of Hillingdon v Neary [2011] EWCOP 1377 (9 June 2011) para 202.

186

Durban Declaration against Racism, Racial Discrimination, Xenophobia and Related Intolerance (8 September 2001) para 25.

187

Plesó v Hungary App No 41242/08 (ECtHR, 2 October 2012) paras 62, 65, 68.

188

Ibid para 65.

189

Litwa v Poland App No 26629/95 (ECtHR, 4 April 2000) para 78; Idalov v Russia (Grand Chamber) App No 5826/03 (ECtHR, 22 May 2012) paras 139, 148. For the application of the principle in relation to children, see IACommHR, Juvenile Justice and Human Rights in the Americas (13 July 2011) OEA/Ser.L/V/II Doc 78 paras 267–288; ‘Committee on the Rights of the Child, General Comment No 10: the Rights of the Child in Juvenile Justice’ (25 April 2007) UN Doc CRC/C/GC/10 paras 79–81.

190

UNHCR, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum Seekers and Alternatives to Detention (2012), Guideline 4.3; Rahimi v Greece App No 8687/08 (ECtHR, 5 April 2011) para 109 (regarding the detention of an unaccompanied child asylum seeker).

191

Storck v Germany App No 61603/00 (ECtHR, 16 June 2005) paras 100–108; Stanev v Bulgaria (Grand Chamber) App No 36760/06 (ECtHR, 17 January 2012) para 120.

192

Riera Blume v Spain App No 37680/97 (ECtHR, 14 October 1999) paras 31–35; Rantsev v Cyprus and Russia App No 25965/04 (ECtHR, 8 January 2010) paras 323–324.

193

IACommHR, Measures Aimed at Reducing the Use of Pretrial Detention in the Americas (3 July 2017) OAS/Ser.L/V/II 163 Doc 105, para 17.

194

ICRC, Customary International Law Database (n 155) Rule 99.

195

UNHCR, Detention Guidelines (n 190) para 14.

196

See, Art 1 International Convention against the Taking of Hostages (adopted 19 December 1979, entered into force 3 June 1983) 1316 UNTS 205 (emphasis added) (hereinafter Hostages Convention). This is discussed in more detail in Chapter 7.

197

‘Unlawful confinement’ of a protected person is a war crime under Article 8(2)(a)(vii) of the ICC Statute and features as a crime in the statutes of other international criminal law tribunals (Rome Statute of the International Criminal Court) (adopted 17 July 1998, entered into force 7 July 2002) UN Doc A/CONF.183/9.

198

Imprisonment or other severe deprivation of physical liberty is recognised as one of the possible underlying offences of crimes against humanity in accordance with Article 7(1)(e) of the ICC Statute, and is reflected in the other statutes and principles setting out crimes against humanity.

199

Guzzardi v Italy App No 7367/76 (ECtHR, 6 November 1980) paras 92–93 (finding a detention); see, also, De Tommaso v Italy (Grand Chamber) App No 43395/09 (ECtHR, 23 February 2017) para 80 (finding that the facts did not give rise to detention).

200

WGAD, Opinion No 16/2011 Concerning Liu Xia (China), UN Doc A/HRC/WGAD/2011/16 (5 May 2011) para 7: Opinion No 50/2021 Concerning Raman Pratasevich (Belarus) UN Doc A/HRC/WGAD/2021/50 (7 December 2021) paras 60, 61.

201

WGAD, ‘Report of the WGAD, Deliberation No 9’, UN Doc A/HRC/22/44 (24 December 2012) para 59.

202

WGAD, Opinion No 2/2002 Concerning Aung San Suu Kyi (Myanmar), UN Doc E/CN.4/2003/8/Add.1 (19 June 2002) para 13; Opinion No 8/1992 Concerning Aung San Suu Kyi (Myanmar), UN Doc E/CN.4/1993/24 (12 January 1993) para 15. See, also, WGAD, Deliberation 01: ‘House Arrest’, UN Doc E/CN.4/1993/24 (12 January 1993) 9.

203

Art 5(1)(a)–(e) ECHR. Though note Hassan v United Kingdom, App No 29750/09 (16 September 2004) discussed further in Chapter 6 (where the ECtHR interpreted Art 5(1)(a)–(f) as allowing exceptionally for additional bases to detain when those bases stem from other applicable legal regimes).

204

Human Rights Committee, General Comment No 35 (n 156) paras 12, 18, 19, 20, 66.

205

Austin v United Kingdom (Grand Chamber) App Nos 39692/09, 40713/09 and 41008/09 (ECtHR, 15 March 2012) paras 58–59; De Tommaso v Italy (Grand Chamber) App No 43395/09 (ECtHR, 23 February 2017) para 81.

206

Austin v United Kingdom (n 205) para 59.

207

Ilias and Ahmed v Hungary (Grand Chamber) App No 47287/15 (ECtHR, 21 November 2019), discussed in Chapter 4 (paras 220–223).

208

Austin (n 205).

209

Mathuri Thamilmaran, ‘Sri Lanka: Stop Unnecessary “Psychiatric Evaluations” Based on Sexual Orientation’, International Commission of Jurists (1 December 2022) <www.icj.org/sri-lanka-stop-unnecessary-psychiatric-evaluations-based-on-sexual-orientation/> accessed 26 July 2023.

210

Sara Malkani, ‘When Women Can’t Escape: a Gender-Sensitive Approach to Arbitrary Detention’ (2015) 30 Wis J L Gender & Soc’y 1, 20.

211

WGAD, Opinion No 54/2015 Concerning Julian Assange (Sweden and the UK), UN Doc A/HRC/WGAD/2015 (22 January 2016) para 10.

212

‘Julian Assange decision by UN panel ridiculous, says Hammond’, BBC News (5 February 2016); Joshua Rozenberg, ‘How Did the UN Get It So Wrong on Julian Assange?’, The Guardian (5 February 2016); Philipp Janig, ‘Julian’s Golden Cage: Julian Assange, the UN Working Group on Arbitrary Detention and the Quest for Scholarly Diligence – A Case Study’ (2016) 18 Austrian Rev Intl & Eur L 1. See, in contrast, Binoy Kampmark, ‘Julian Assange, the UN and the Limits of Detention’ (2018) 11(1) Theory in Action 57; Liora Lazarus, ‘Is the United Nations Working Group on Arbitrary Detention Decision on Assange “So Wrong”?’ (2016) UK Const L Blog.

213

WGAD Member Vladimir Tochilovsky’s dissent in the Assange WGAD Opinion (n 211) para 3.

214

Başak Çali, ‘Coping with Crisis: Whither the Variable Geometry in the Jurisprudence of the European Court of Human Rights’ (2018) 35(2) Wisc Intl LJ 237, 261.

215

Asymmetrical Haircuts, Podcast Episode 75: ‘Failures of Justice with Kate Gibson and Barbora Hola’ (17 February 2023) <https://www.asymmetricalhaircuts.com/episodes/episode-75-failures-of-justice-with-kate-gibson-and-barbora-hola/> accessed 13 August 2023.

216

‘Decision on Nzuwonemeye Request for Transfer’, MICT-22-124 1356 D1356–D1354 (25 July 2023); motion for judicial review pending at the time of writing (‘Ntagerura Motion for Judicial Review of Relocation Agreement’, MICT-22-124 1367 D1367–D1363 (10 August 2023)).

217

UNSC, Resolution 1966 (2010) UN Doc S/RES/1966 (2010) (22 December 2010).

218

See, Carla Ferstman, International Organizations and the Fight for Accountability: the Remedies and Reparations Gap (OUP 2017).

219

Endicott, ‘The Impossibility of the Rule of Law’ (n 31).

220

Bourdieu and Passeron (n 17) 5.

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