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Imprisoned under house arrest for fifteen years over a twenty-one-year period, from 1989 to 2010, the Burmese pro-democracy leader and human rights activist Aung San Suu Kyi became one of the world’s most prominent political prisoners and the face of the Myanmar opposition movement. In 1991, she was awarded the Nobel Peace “for her non-violent struggle for democracy and human rights.”1 Over the course of her imprisonment, Aung San Suu Kyi was the subject of six WGAD opinions. The author was hired by her family to serve as her international counsel from mid-2006 until her release on November 13, 2010. He worked with Aung San Suu Kyi’s local counsel, U Nyan Win and U Kyi Win, along with countless others globally, to utilize the latter three opinions, in combination with political and public relations advocacy efforts, to advance efforts to secure her freedom and that of other political prisoners from the military junta. Under house arrest, Aung San Suu Kyi was denied access to virtually everyone from the outside world other than her doctor, domestic lawyer, occasional diplomat friendly to the military junta, and Liaison Minister for the then-junta U Aung Kyi.
Though recognized as a separate category in the Methods of Work, administrative detention for refugees and asylum seekers were originally noted as a concerning practice and added to the mandate of the WGAD by Resolution 1997/50 of the Commission on Human Rights (UNCHR).2
As a quasi-judicial body, the WGAD operates without a formal set of rules but is instead guided in implementing its mandate by its Methods of Work, which explain the overall process by which to submit a case for consideration.1 That said, however, the WGAD considers individual cases brought to it in closed sessions of its members and staff. And the day-to-day operations of the WGAD are run by a small secretariat of staff of the Office of the UN High Commissioner for Human Rights (OHCHR) in its Special Procedures Branch, led by its Secretary. This chapter will illuminate and elucidate how an individual case can most effectively be brought to the WGAD, supplementing the procedures described in the Methods of Work with the author’s practical experience gained from having taken more than forty-five cases to the WGAD and having interviewed many current and former WGAD members and staff.
In its first report to the Commission on Human Rights (UNCHR), the WGAD identified a number of situations involving questions of principle, which required special consideration.1 In its third session, the WGAD decided it would consider such questions and adopt decisions about them (referred to as “deliberations”) not in the abstract but in connection with the consideration of individual cases submitted to it.2 Over its history, the WGAD has adopted nine Deliberations and a commentary on drug policies, which will each be examined in turn.
This chapter examines cases where the WGAD has declined to find the deprivation of liberty of a detainee arbitrary, either by rejecting the source’s allegations on the merits, noting that the application failed to comply with the procedures explained in its Methods of Work, or for other reasons. Under its Methods of Work, the WGAD makes a case-specific determination of the arbitrariness of any detention.1 They present the WGAD with the following options, outside of finding the detention arbitrary as alleged: file the case without an opinion on the nature of detention in cases where a detainee has been released; classify the case as pending until further information is produced; or refer the matter to a more appropriate rapporteur, independent expert, or working group.2
When the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character (category III);1
When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13-14, and 18-21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18-19, 21-22, and 25-27 of the International Covenant on Civil and Political Rights (category II).1
At the time of his arrest in April 2002, Yang Jianli was a thirty-nine- year-old scholar and democracy activist, who was well known for his efforts to promote democracy in China. Born a Chinese citizen, Yang had resided in the United States since 1986. He holds doctoral degrees in mathematics from the University of California at Berkeley and in political economy and government from Harvard University’s John F. Kennedy School of Government.1 Yang was the founder and president of the Foundation for China 21st Century, through which he promoted the cause of democracy in China.
Since its independence from the Soviet Union in 1991, Kazakhstan has been led by President Nursultan Nazarbayev, a Soviet-era politician who has remained in the position by concentrating all political power in his office.1 No election in the post-Soviet republic has ever met international standards; in March 2015, Nazarbayev won reelection with 95 percent of the vote in a snap election widely panned by the international community.2 Beyond the complete absence of free and fair elections, the current Government prohibits citizens from enjoying their rights to freedom of expression, assembly, association, and religion. In the past few years, there have been major crackdowns on newspapers, which are the only source of independent news in the country, and many of the country’s prisons are filled with detainees serving sentences for peacefully assembling without a permit. Of particular concern to many states and international organizations is the pervasive use of torture in state-run detention centers.
When the deprivation of liberty constitutes a violation of the international law for reasons of discrimination based on birth, national, ethnic or social origin, language, religion, economic condition, political or other opinion, gender, sexual orientation, disability or other status, that aims towards or can result in ignoring the equality of human rights.1
According to the WGAD’s Basic Principles and Guidelines, domestic law must authorize any and all restrictions on liberty.1 The WGAD will categorize a case as arbitrary under Category I “[w]hen it is clearly impossible to invoke any legal basis justifying the deprivation of liberty, as when a person is kept in detention after the completion of his or her sentence or despite an amnesty law applicable to him or her.”2 Category I cases typically center on the right to not be deprived of one’s liberty except on such grounds established by law, the right to not be held guilty for any criminal offense on account of an act or omission which did not constitute a criminal offense when it was committed, the right not to be tried twice for the same crime, situations where the detainee was granted amnesty but was not released, and in extraordinary rendition cases where prisoners are abducted and transferred across international borders outside of a lawful extradition hearing.