A/HRC/27/47
Working Group would like to acknowledge the very comprehensive contribution made by
Oxford Pro Bono Publico at the University of Oxford, which submitted “Remedies and
procedures on the right of anyone deprived of his or her liberty by arrest or detention to
bring proceedings before a court: a comparative and analytical review of State practice”
(April 2014). This has been of particular assistance to the Working Group in establishing
State practice and the requisite opinio juris.
63.
The Working Group recalls the statement by the International Court of Justice in
Jurisdictional Immunities: “It is of course axiomatic that the material of customary
international law is to be looked for primarily in the actual practice and opinio juris of
States, even though multilateral conventions may have an important role to play in
recording and defining rules deriving from custom, or indeed in developing them … In the
present context, State practice of particular significance is to be found in the judgments of
national courts”.21 In deliberation No. 9 (2012) concerning the definition and scope of
arbitrary deprivation of liberty under customary international law,22 the Working Group
adopted the approach to formation of customary international law currently restated in the
work of the International Law Commission (A/CN.4/663) and reflected in the request by
the Human Rights Council to produce the present report. When the Working Group applies
the law, and when it finds violations of human rights obligations, it is bound by the general
method of international law, in treaty interpretation and the application of customary
international law. In addition to the materials presented in the present report to the Human
Rights Council, important sources of international law can be found in the Council’s own
procedures and their outcomes, with the additional reporting and peer-review procedures,
including those of the universal periodic review.
V. Conclusion
64.
The present report demonstrates how the procedural guarantee has been
developed in different international instruments, in regional legal frameworks, and in
the domestic law of States from a diversity of legal traditions. The reaffirmation and
clarification of the due process safeguard is a feature of international treaties and
domestic legislation, the jurisprudence of international human rights mechanisms,
including treaty bodies and special procedure mandate holders, regional human rights
mechanisms and national courts. The procedural guarantee is viewed as an essential
component of the due process rights that are necessary to protect the right to liberty
and security of the person in all situations of deprivation of liberty and to prevent
arbitrary arrest, detention or exile, enforced disappearance, or risk of torture and
other cruel, inhuman or degrading treatment or punishment. The review of legal
frameworks further confirms that, where it has been determined that the fundamental
rights of the detainee have been violated, such wrongs demand a remedy.
65.
The extensive survey undertaken of the relevant sources shows that the right to
challenge the lawfulness of detention and the right to a remedy where there is a wrong
is supported by uniform international practice, State practice and the opinio juris of
States. It shows not only the existence of customary norms of international law that
apply erga omnes, but also that these norms are peremptory rules, jus cogens, in
21
22
Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, ICJ Reports
2012, p. 99, 122–23 [55].
Deliberation No. 9 has been cited as one source on the approach to identification of customary
international law by Sir Michael Wood, First Report on formation and evidence of customary
international law, International Law Commission, Sixty-fifth session, 17 May 2013, (A/CN.4/663,
para. 53) and in Sir Michael’s Second Report (A/CN.4/672, paras 41.8 and 76.6).
19
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