3. Universal Declaration of Human Rights as customary law

Article 9 of the ICCPR is a codification of article 9 of the Universal Declaration of Human Rights (UDHR). It states that:

No one shall be subjected to arbitrary arrest, detention or exile.

Some commentators have suggested that the UDHR may, to some extent at least, have the status of customary law.¹⁸ In pleadings to the ICJ, the United States argued that article 9 of the UDHR is one of several articles reflecting customary international law of universal application.¹⁹

Further, in Filartiga v Pena Irala, Kaufman J of the US Circuit Court of Appeal stated that the prohibition on torture "has become part of customary international law, as evidenced and defined by the Universal Declaration of Human Rights".²⁰ However, commentators have questioned whether there is really an appropriate foundation for the view that the Universal Declaration of Human Rights has, in and of itself, reached the status of customary international law.²¹ In our view, the issue remains unsettled.

4. Legal commentary

Two commentators, Paust and Mullerson, have stated that the HRC "has recognised that freedom from arbitrary detention or arrest is a peremptory norm or jus cogens."²² Paust has also emphasised that prohibition of detention is widely recognised:

Under international law, human rights standards that are both treaty-based and part of customary international law … establish standards for the propriety of detention. These standards, recognised in nearly all major human rights instruments, include the prohibition of 'arbitrary' arrest or detention.²³

Paust also notes that article 9 rights are not limited by State territory, stating:

The customary and treaty-based human right to freedom from arbitrary detention is not one that applies merely within a state's own territory. Not one of the human rights instruments cited here … sets forth such a limitation. Thus, the right applies wherever a state exercises its jurisdiction over a person.²⁴

5. Conclusion

There appears to be significant argument, particularly arising from references in the HRC General Comments to article 9 of the ICCPR to suggest that the right to freedom from arbitrary detention has achieved the status of customary international law.

BLAKE DAWSON WALDRON

38908.71

1 Joseph, Schultz and Castan, The International Covenant on Civil and Political Rights – Cases, Materials and Commentary (2nd Ed, 2004) 304. This view seems to find support in jurisprudence of the HRC which blurs the various subparagraph of article 9. For example, in C v Australia, the HRC said that "continuance of immigration detention for over two years without individual justification and without any chance of substantive judicial review was, in the Committee's view, arbitrary and constituted a violation of article 9, paragraph 1": C v Australia, Communication No 900/00, Un Doc CCPR/C/76/D/900/1999 (2002).

2 C v Australia, Communication No 900/00, Un Doc CCPR/C/76/D/900/1999 (2002).

3 See Kelly v Jamaica, Communication No 253/87 [5.8].

4 Drescher Caldas v Uruguay, Communication No 43/79 (11 January 1979) [13.2].

5 Drescher Caldas v Uruguay, Communication No 43/79 (11 January 1979) [13.2].

6 HRC ,General Comment No 8: Right to Liberty and Security of Persons (art 9) (30 June 1982) [2].

7 Communication No 625/95 UN Doc CCPR/C/68/D/625/1995 (28 April 2000) ( [7.4].

8 HRC, Concluding Observations on Gabon, UN Doc CCPR/CO/70/GAB (2000).

9 Kone v Senegal (386/89) para 8.6.

10 Joseph, Schultz and Castan, The International Covenant on Civil and Political Rights – Cases, Materials and Commentary (2nd Ed, 2004) 330.

11 (155/83)

12 Concluding Observations on Spain (1996) UN doc. CCPR/C/79/Add.61, para 12.

13 See Memorandum to Counsel at part 23 on the right to legal representation.

14 General Comment 24: Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, UN Doc CCPR/C/21/Rev.1/Add.6 (4 November 1994) [8].

15 General Comment 24: Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, UN Doc CCPR/C/21/Rev.1/Add.6 (4 November 1994) [10].

16 General Comment No 29: States of Emergency (Article 4), Un Doc CCPR/C/21/Rev.1/Add.11 (31 August 2001) [11].

17 Recommendation by Human Rights Committee to the Sub-Commission on Prevention of Discrimination and Protection of Minorities concerning, cited at footnote 9 of HRC, General Comment No 29: States of Emergency (Article 4) UN Doc CCPR/C/21/Rev.1/Add.11 (31 August 2001).

18 L B Sohn, "The New International Law: Protection of the Rights of Individuals rather than States" (1982) 32 American University Law Review 1, 17; Stuart Kaye and Ryszard Piotrowicz, "Human Rights in International and Australian Law" (2000) 30; DJ Harris, Cases and Materials on International Law (5th Ed, 2002) 65.

19 See Memorial of the United States, Case Concerning United States Diplomatic and Consular Staff in Tehran (US v Iran), 1980 ICJ Pleadings 182 n 36 (Jan 12, 1980).

20 630 F 2d 876 (1980), extracted in DJ Harris, Cases and Materials on International Law (5th Ed, 2002) 731.

21 DJ Harris, Cases and Materials on International Law (5th Ed, 2002) 731, fn 38.

22 Jordan J Paust, "Judicial Power to Determine the Status and Rights of Persons Detained Without Trial" (2003) 44 Harvard International Law Journal 503, 509. See also Rein Mullerson, Human Rights and the Individual as a Subject of International Law (1990) 1 European Journal of International Law 33, 39, who refers to Schacter, "International Law in Theory and Practice" (1982) 178 RCDI 326 and A D'Amato, International Law: Process and Prospect (1987) 145 as authority for this proposition.

23 Jordan J Paust, "Judicial Power to Determine the Status and Rights of Persons Detained Without Trial" (2003) 44 Harvard International Law Journal 503, 505-6.

24 Jordan J Paust, "Judicial Power to Determine the Status and Rights of Persons Detained Without Trial" (2003) 44 Harvard International Law Journal 503, 506.

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