A/HRC/30/36
country or refer to the constitutional norms preventing arbitrary detention from
occurring, without making direct references to the specific allegations transmitted.
71.
In its deliberation No. 9 concerning the definition and scope of arbitrary
deprivation of liberty under customary international law (see A/HRC/22/44, sect. III),
the Working Group restated its constant jurisprudence on the prohibition of all forms
of arbitrary deprivation of liberty, and demonstrated that it is general practice
accepted as law, constituting customary international law and a peremptory norm (jus
cogens).
72.
The prohibition of arbitrary deprivation of liberty applies without territorial
limitations, and to the duties of States where they have effective control and for acts
by their agents abroad. International law does not accept Act of State limitations on
human rights obligations. In the interactive dialogue at the twenty-second session of
the Human Rights Council, States gave general support for the conclusions in the
deliberation.
73.
In its resolution 20/16, the Human Rights Council encouraged all States to
respect and promote the right of anyone deprived of his or her liberty by arrest or
detention to bring proceedings before court, in order that the court may decide
without delay on the lawfulness of his or her detention and order his or her release if
the detention was not lawful, in accordance with their international obligations. In a
separate report (A/HRC/30/37), the Working Group is submitting to the Human
Rights Council the draft basic principles and guidelines on remedies and procedures
relating to that right, adopted by the Working Group at its seventy-second session.
74.
In the light of communications received and findings resulting from country
visits, the Working Group notes with concern the increasing instances of arbitrary
detention as a consequence of drug control laws and policies. Compulsory detention
regimes for the purposes of drug “rehabilitation” through confinement or forced
labour are contrary to scientific evidence and inherently arbitrary.
75.
Criminal laws and penal measures pursued under the existing punitive system
of international drug control raise important questions of legality, proportionality,
necessity and appropriateness.
76.
The Working Group has received relevant information and communications on
an increase of detentions in the context of peaceful protests. It intends to consider this
matter as a topic in its work for the year 2017.
77.
States are under a positive obligation to provide an effective remedy for
violations of international human rights law. In most cases, the individual has a right
to compensation. That right constitutes a general principle of international law.
78.
The international law obligation to provide remedies is fulfilled primarily
through domestic law. Domestic courts have a particular role in granting tort
remedies, and domestic law cannot erect barriers that would limit the effectiveness of
international law.
V. Recommendations
79.
The Working Group on Arbitrary Detention recommends that States:
(a)
Enforce and protect the right to liberty of every person under customary
international law;
21
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents