Improper confinement of children in migration contexts – unnecessary, prolonged or in harmful conditions – is a severe and troubling phenomenon. In that regard, the UN Human Rights Committee’s General Comment No. 35 (2014) summarizes the treaty body’s interpretation of the right to liberty of person, including protection against arbitrary detention, under the International Covenant on Civil and Political Rights, one of the principal human rights treaties at the global level. This chapter describes the Human Rights Committee’s approach to detention of migrants, including child migrants. It explains why General Comment No. 35 employs a broad definition of ‘detention’, and the resulting need for a nuanced and non-absolutist approach to the ‘detention’ of children in migration contexts. Such ‘detention’ is not invariably arbitrary, but rather should be used only as a measure of last resort, and for the shortest appropriate period of time.
Gerald L Neuman
This chapter offers a rewritten and updated version of the Human Rights Committee’s inadmissibility decision in AP v Russian Federation, which dismissed a challenge by a would-be candidate to his inability to run as an independent in the 2007 parliamentary election. The rewrite situates the case more fully in comparative electoral practices, and gives explicit attention to regional human rights materials, including the case law of the Inter-American Court of Human Rights and also a judgment rendered by the African Court on Human and Peoples’ Rights after the Human Rights Committee’s decision. The accompanying chapter comments on both advantages and disadvantages of using comparative data in treaty body jurisprudence, and on reasons why treaty bodies might exercise caution and tact in engaging with regional human rights decisions.