International Law and Administrative Detention

INTRODUCTION The right to personal liberty and security is recognised to the individual by the international community. Although the presence of many documents produced by international and regional organisations may appear to give a full protection to this right, the reality shows to be different. IGO’s and NGO’s have often been obliged to issue reports and/resolutions on the infringement of the right to personal liberty and security as well as recommendations addressed to breaching states in order to spur them to modify their conduct. Such breaches mostly take the form of unlawful detention or, in worst cases, of administrative detention to be specially connected to difficult political situations (such as legal/political systems threatened by terrorism). For obvious reasons impeding an on-site investigation, the work will be literature- based. Because of the relative availability of specific literature and jurisprudence on administrative detention, it will be somehow descriptive, but will emphasize the negativity of the practice through the parallel exam of relevant cases of what would be more generally defined as unlawful detention. This exam will also permit to establish whether international law is lacking in the protection of the right in discussion in relation to administrative detention. The issue of detention under international law will be analysed with particular regard to a couple of international instruments devoted to the protection of human rights and consequently of the right here discussed, shedding a light, where made possible by existing case-law, to the particular practice of administrative detention. I will first give a general overview of the international guarantees accorded to individuals under detention by the UN, and will then proceed to a more detailed study of the right to personal liberty and security under the ECHR and the ICCPR. The choice of the two instruments is explained by the high degree of importance they have acquired within the international community, where the ECHR has served as a model to other regional systems (such as the Inter-American one) and to the same ICCPR Committee (HRC) which has often referred to the Commission’s and the Court’s jurisprudence; and where the HRC has become an important source of quasi-judicial observations and 2