Migration-Related Detention and International Law
UN Charter-Based Human Rights Mechanisms
The UN Commission on Human Rights, which was replaced by the Human Rights Council in 2006, created a number of special enquiry mechanisms—also known as Special Procedures—to address both specific country situations and thematic issues. These mechanisms are frequently referred to as “Charter-based” because authority to create these is derived from the UN Charter. Most of these mechanisms receive information regarding alleged human rights violations and send communications to governments asking for clarification; they carry out country visits to investigate the situation of human rights at the national level; and they issue reports, including thematic reports focusing on issues of special concern. The Special Procedures can address all countries and, in carrying out their work, will take into account each state’s obligations under international law. As of mid-2008, there were 29 thematic and 9 country mandates. Among those with particular relevance to the Global Detention Project are:
- Special Rapporteur on Torture
- Working Group on Arbitrary Detention
- Special Rapporteur on the Human Rights of Migrants
- Special Rapporteur on the Trafficking in Persons
- Special Rapporteur on Violence against Women
- Special Rapporteur on the Sale of Children, Child Prostitution, and Child Pornography
The mandate of the Special Rapporteur on Torture was created in 1985 by Commission Resolution 1985/33 . The Special Rapporteur has occasionally addressed the treatment of non-citizens in detention. For example, in his 2003 report to the Human Rights Commission, then-Special Rapporteur Theo van Boven highlighted migration-related detention as a factor that can conduce to ill treatment. He wrote: “The Special Rapporteur notes that one of the most frequent obstacles to the respect of the human dignity and to the prohibition of torture and other forms of ill-treatment in places of detention is overcrowding. In order to improve the conditions of detention and in accordance with international standards … the Special Rapporteur encourages States to avoid holding people in custody where possible. This is particularly applicable in cases of pre-trial detention and detention of children, asylum-seekers, and refugees” ( Special Rapporteur on Torture Theo van Boven 2003 , para. 49).
The Working Group on Arbitrary Detention (WGAD), set up by the Human Rights Commission in 1991 by Resolution 1991/42, has as part of its mandate “To investigate cases of deprivation of liberty imposed arbitrarily, provided that no final decision has been taken in such cases by domestic courts in conformity with domestic law, with the relevant international standards set forth in the Universal Declaration of Human Rights and with the relevant international instruments accepted by the States concerned” (WGAD 2008).
The Working Group acts on information of alleged cases of arbitrary detention by sending urgent appeals and other communications to the governments concerned. The Working Group is the only non-treaty-based mechanism that can investigate and issue an opinion on individual cases (WGAD 2008).
The Working Group has on several occasions addressed the question of the detention of non-citizens. In its 1998 report to the Commission on Human Rights, the Working Group enumerated 14 “guarantees” that provide criteria for determining whether the detention of a non-citizen is arbitrary (WGAD 1998, paras. 69-70). In Deliberation 5, from its 1999 report to the commission, the Working Group indicated 10 guarantees, or “principles” (WGAD 1999, Annex II). In its 2007 report to the Human Rights Council, the Working Group once again reiterated its concern with the administrative detention of non-citizens (WGAD 2008, paras. 41-54).
The 10 principles laid in the Working Group’s 1999 report are:
Principle 1: Any asylum-seeker or immigrant, when held for questioning at the border, or inside national territory in the case of illegal entry, must be informed at least orally, and in a language which he or she understands, of the nature of and grounds for the decision refusing entry at the border, or permission for temporary residence in the territory, that is being contemplated with respect to the person concerned.
Principle 2: Any asylum-seeker or immigrant must have the possibility, while in custody, of communicating with the outside world, including by telephone, fax or electronic mail, and of contacting a lawyer, a consular representative and relatives.
Principle 3: Any asylum-seeker or immigrant placed in custody must be brought promptly before a judicial or other authority.
Principle 4: Any asylum-seeker or immigrant, when placed in custody, must enter his or her signature in a register which is numbered and bound, or affords equivalent guarantees, indicating the person’s identity, the grounds for the custody and the competent authority which decided on the measure, as well as the time and date of admission into and release from custody.
Principle 5: Any asylum-seeker or immigrant, upon admission to a centre for custody, must be informed of the internal regulations and, where appropriate, of the applicable disciplinary rules and any possibility of his or her being held incommunicado, as well as of the guarantees accompanying such a measure.
Principle 6: The decision must be taken by a duly empowered authority with a sufficient level of responsibility and must be founded on criteria of legality established by the law.
Principle 7: A maximum period should be set by law and the custody may in no case be unlimited or of excessive length.
Principle 8: Notification of the custodial measure must be given in writing, in a language understood by the asylum-seeker or immigrant, stating the grounds for the measure; it shall set out the conditions under which the asylum-seeker or immigrant must be able to apply for a remedy to a judicial authority, which shall decide promptly on the lawfulness of the measure and, where appropriate, order the release of the person concerned.
Principle 9: Custody must be effected in a public establishment specifically intended for this purpose; when, for practical reasons, this is not the case, the asylum-seeker or immigrant must be placed in premises separate from those for persons imprisoned under criminal law.
Principle 10: The Office of the United Nations High Commissioner for Refugees (UNHCR), the International Committee of the Red Cross (ICRC) and, where appropriate, duly authorized non-governmental organizations must be allowed access to the places of custody.
The mandate of the Special Rapporteur on the Human Rights of Migrants was created in 1999 by the Commission on Human Rights to “examine ways and means to overcome the obstacles existing to the full and effective protection of the human rights of migrants, including obstacles and difficulties for the return of migrants who are undocumented or in an irregular situation” (Human Rights of Migrants 1999, Resolution 1999/44).
The Special Rapporteur has on several occasions addressed the question of the administrative detention of migrants, including in a 2003 thematic study by then-Special Rapporteur Gabriela Rodríguez Pizarro (Special Rapporteur on the Human Rights of Migrants 2002) and in a 2008 report by Special Rapporteur Jorge Bustamante (Special Rapporteur on the Human Rights of Migrants 2008a). The Rapporteur has also addressed migration-related detention in a number of its communications to governments and in reports on country visits (see for example the Special Rapporteurs’ reports on visits to Italy 2004 , and the United States of America 2008b).
In her 2003 report, the Special Rapporteur made a number of specific recommendations regarding the detention of migrants, including: that infractions of immigration laws and regulations should not be considered criminal offences under national legislation; that governments consider the possibility of progressively abolishing all forms of administrative detention; that legislation not allow for the detention of unaccompanied children and that persons only be detained on the basis of criteria established by law; that administrative detainees be entitled to bring proceedings before a court, be assisted by legal counsel, and an interpreter free of charge (Special Rapporteur on the Human Rights of Migrants Gabriela Rodriguez 2002, paras. 72-75).
In his February 2008 report to the Human Right Council, the Special Rapporteur addressed the issue of detention in international transit zones: “Migrants and asylum‑seekers are sometimes detained at airport transit zones and other points of entry, under no clear authority, either with the knowledge of government officials at the airport or simply on the instructions of airline companies before being returned to their countries. The difficulty or impossibility of reaching any outside assistance impedes the exercise of the right of the persons concerned to challenge the lawfulness of the State’s decision to be detained and returned and to apply for asylum, even in the presence of legitimate claims” (Special Rapporteur on the Human Rights of Migrants Jorge Bustamante 2008a, para. 47).
The Special Rapporteur on Trafficking was created by the Commission on Human Rights in its Resolution 2004/110 to act on the human rights aspects of the victims of trafficking in persons. The Special Rapporteur has addressed the question of the detention of victims of trafficking (see, for example, the Special Rapporteur Sigma Huda’s report on her visit to Lebanon 2006 , paras. 92-94).
The Special Rapporteur’s mandate makes particular reference to the “ Recommended Principles and Guidelines on Human Rights and Human Trafficking ” which was developed by the Office of the High Commissioner for Human Rights (2002) within the broader framework of the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children (2000) , Supplementing the UN Convention against Transnational Organized Crime (2000) .
The Recommended Principles and Guidelines provide that states should consider “Ensuring that trafficked persons are not, in any circumstances, held in immigration detention or other forms of custody” (2002, Guideline 2, para. 6). They urge States to consider “Ensuring that the legislation prevents trafficked persons from being prosecuted, detained, or punished for the illegality of their entry or residence or for the activities they are involved in as a direct consequence of their situation as trafficked persons” (2002, Guideline 4, para. 5). They also provide that states (as well as intergovernmental organizations and non-governmental organizations, when applicable) should consider “Ensuring, in cooperation with non-governmental organizations, that safe and adequate shelter that meets the needs of trafficked persons is made available” and that trafficked persons “not be held in immigration detention centres, other detention facilities, or vagrant houses” (2002, Guideline 6, para. 1).
The mandate of the Special Rapporteur on Violence against Women was created by the Commission on Human Rights through resolution 1994/45 , adopted in 1994. The mandate has addressed the detention and protection of migrant and trafficked women on a number of occasions. The issue was examined in 2000 by the then-Special Rapporteur Ms. Radhika Coomaraswamy in her report on trafficking in women, women’s migration, and violence against women ( Special Rapporteur on Violence against Women, its Causes and Consequences Radhika Coomaraswamy 2000 ). In her report on her 2006 visit to the Netherlands , the rapporteur recommended that the government adopt measures to ensure that undocumented migrant women have access to women’s shelters ( Special Rapporteur on Violence against Women Yakin Ertürk 2007 , para. 92(d)).
The Special Rapporteur on the Sale of Children, Child Prostitution, and Child Pornography was created in 1990 by the Commission on Human Rights in its Resolution 1990/68. Its mandate is to “investigate the exploitation of children around the world and to submit reports thereon to the General Assembly and the Commission on Human Rights, making recommendations for the protection of the rights of the children concerned” (Special Rapporteur on the Sale of Children, Child Prosticution and Child Pornography Web site).
The rapporteur, which during country visits often visits centres where children are placed or confined, has taken up the issue of detained migrant or non-citizen children, in particular unaccompanied children and victims of trafficking (see the Special Rapporteur Juan Miguel Petit’s 2008 report on Mexico and 2003 report on France). Additionally, the mandate has sent communications to governments, often jointly with the mandates on trafficking and/or the human rights of migrants, concerning the situation of foreign children confined in immigration detention or other holding centres.