Migration-Related Detention and International Law
UN Declarations, Principles, Guidelines
The United Nations has adopted a number of instruments relevant to migration-related detention that are not formally binding in the same manner as treaties, including declarations, principles, and guidelines. These instruments contain authoritative interpretations of states’ obligations under international law and can include detailed guidance regarding more general rules. Also, these instruments sometimes reflect norms of customary law. They can be particularly important in the context of countries that have failed to ratify the main human rights treaties. Among the relevant principles and guidelines are:
- Standard Minimum Rules for the Treatment of Prisoners (1977)
- Declaration on the Human Rights of Individuals Who Are not Nationals of the Country in which They Live (1985)
- Body of Principles for the Protection of All Person under Any Form of Detention or Imprisonment (1988)
- Rules for the Protection of Juveniles Deprived of their Liberty (1990)
The “Standard Minimum Rules for the Treatment of Prisoners” were first adopted by the UN Congress on the Prevention of Crime and the Treatment of Offenders in 1955. The Standard Minimum Rules were later approved by the UN Economic and Social Council ( ECOSOC) through resolutions adopted in 1957 and 1977. In 1971, the UN General Assembly Resolution 2858, entitled Human Rights in the Administration of Justice , recommended that member states implement the rules in the administration of penal and correctional institutions and consider incorporating them in national legislation ( Human Rights in the Administration of Justice 1971).
The Standard Minimum Rules address a broad range of issues, observing that “In view of the great variety of legal, social, economic, and geographical conditions of the world, it is evident that not all of the rules are capable of application in all places and at all times. They should, however, serve to stimulate a constant endeavour to overcome practical difficulties in the way of their application, in the knowledge that they represent, as a whole, the minimum conditions which are accepted as suitable by the United Nations” ( Standard Minimum Rules for the Treatment of Prisoners 1955).
Part I of the rules covers the general management of institutions. These rules are applicable to all categories of prisoners, criminal or civil, untried or convicted, including prisoners subject to “security measures” or corrective measures ordered by the judge ( Standard Minimum Rules for the Treatment of Prisoners 1955, Part I).
Issues covered in Part I that can be relevant to migration-related detention include: registration; the separation of different categories of prisoners, including the “legal reason for their detention”; minimum standards for accommodation, clothing, bedding, food, exercise, and medical services; complaint mechanisms for prisoners; and contacts with the outside world ( Standard Minimum Rules for the Treatment of Prisoners 1955, Part I) .
Part II of the Standard Minimum Rules , which encompass rules that are applicable to special categories of detainees, determines that “In countries where the law permits imprisonment for debt, or by order of a court under any other non-criminal process, persons so imprisoned shall not be subjected to any greater restriction or severity than is necessary to ensure safe custody and good order” ( Standard Minimum Rules for the Treatment of Prisoners 1955, Part II)
Declaration on the Human Rights of Individuals Who Are not Nationals of the Country in which They Live (1985)
Adopted by the UN General Assembly in 1985, the “Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live” (DHRINNC) defines an “alien” as “any individual who is not a national of the state in which he or she is present” (DHRINNC 1985, Art. 1). It determines that aliens shall enjoy a broad range of civil, economic, social, and cultural rights; provides that no alien shall be subjected to arbitrary arrest or detention; and provides that no alien shall be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established by law (DHRINNC 1985, Art. 5.1(a)). Additionally, the declaration provides that all aliens “shall be free at any time to communicate with the consulate or diplomatic mission of the State of which he or she is a national” (DHRINNC 1985, Art. 10).
Aliens “lawfully” in the territory of a state may be expelled only as a result of a decision reached in accordance with law and shall “be allowed to submit the reasons why he or she should not be expelled” and “to have the case reviewed by, and be represented for the purpose before,” a competent authority (DHRINNC 1985, Art. 7).
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988)
Adopted by the UN General Assembly on December 9, 1988, “ The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment ” contains detailed provisions for the protection of persons held in any type of detention. Many of the principles are relevant to non-citizens held in administrative detention, including: Principle 4, which provides that any form of detention shall be ordered by, and be subject to, the effective control of a judicial or other authority; Principle 11, which determines that a person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority and the right to be assisted by counsel; Principle 15, which affirms the right of detainees to not be denied communication with the outside world, in particular his family or counsel, for “more than a matter of days”; Principle 16, which provides that a non-citizen in detention shall be promptly informed of his right to communicate by appropriate means with a consular post or the diplomatic mission of the state of which he is a national (or, in the case of a refugee under the protection of an intergovernmental organization, with the representative of the competent international organization); and Principle 32, which affirms the right of detained persons to challenge the lawfulness of his or her detention ( Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment 1988).
The “UN Rules for the Protection of Juveniles Deprived of their Liberty,” adopted by the General Assembly in December 1990 ( Resolution 45/113 ) , elaborate on norms contained in the Convention on the Rights of the Child , in particular those regarding the deprivation of liberty of any person under the age of 18. The rules establish the minimum standards accepted by the United Nations “for the protection of juveniles deprived of their liberty in all forms, consistent with human rights and fundamental freedoms, and with a view to counteracting the detrimental effects of all types of detention and to fostering integration in society” (UN Rules for the Protection of Juveniles Deprived of their Liberty 1990, Rule 3). Among the minimum standards addressed in the UN Rules are the rights and guarantees of juveniles in detention, the management of detention facilities, the conditions of the environment and accommodations at detention facilities, and the grounds upon which juveniles can be detained. Rule 2 establishes, “Deprivation of the liberty of a juvenile should be a disposition of last resort and for the minimum necessary period and should be limited to exceptional cases. The length of the sanction should be determined by the judicial authority, without precluding the possibility of his or her early release” (UN Rules for the Protection of Juveniles Deprived of their Liberty 1990, Rule 3).
The UN Rules also provide a definition for “deprivation of liberty.” According to Rule 11, “The deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority” (UN Rules for the Protection of Juveniles Deprived of their Liberty 1990, Rule 11).