Monday, November 5, 2007

A Question on Habeas Discussion...

Further to the robust dialogue of Fiona and Naomi, I was wondering what we do about the express provisions of derogation in the ICCPR (fairly well mirrored by the European Convention), notwithstanding the more recent discourse presented in the posts recently. Is it being asserted that the new discourse is now "customary international law" overriding the treaty provisions, e.g., Art. 9 of the ICCPR is not one of the articles a state is prohibited from suspending in times of emergency? I quote both Arts. 4 and 9 of the ICCPR below, just as a quick FYI.
Article 4
1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

Article 9

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

1 comment:

Diane Marie Amann said...

Michelle's question is critical.
As a rule I shy away from making claims about customary international law whenever there's treaty-based law that can do the job. This is particularly so with regard to the post-1945 international human rights instruments. Absent lots of state practice demonstrating states' agreement that such custom has developed (and not just states in Western Europe), claims to custom can be suspect.
2d question: do those sources that claim nonderogability maintain that there never can be emergency detention, regardless of circumstances? Is there no accommodation of delay in hearings on detention, at least in the most extreme circumstances?