A REGIONAL TOOLKIT FOR PRACTITIONERS 1 13 This section provides an overview of what each of the three international and regional frameworks say about key issues of concern. It also contains resources by other actors. The issues have been identified through field research and point to where stateless persons are most vulnerable and/or most likely to be discriminated against. Stateless persons will only be protected from arbitrary detention if the nexus between and convergence of two legal fields is recognised and acted on. The first area is that of the rights of stateless persons – specifically articulated in the 1954 Convention, but also generally reflected in the core body of international human rights law (most of the rights articulated in the ICCPR for example, equally apply to stateless persons).14 The second, is the right to liberty and security of the person, a specific human rights principle, which is generally applicable to all – including the stateless. The failure ICCPR – Article 9.1 to acknowledge that the specific vulnerabilities associated with statelessness (and those at risk of statelessness) must be taken into account in a decision to detain, leads to arbitrary detention. Acknowledging these vulnerabilities and taking steps to identify the stateless and those at risk of statelessness, as part of the decision to detain, would allow for a fairer and more just application of the liberty and security of the person framework, protecting against arbitrary deprivation of liberty. It is helpful therefore, to be mindful of the respective strengths and limitations of provisions protecting the right to liberty and security of the person under various mechanisms. The table below provides a broad overview and comparison of these provisions under the UN, Council of Europe and EU mechanisms. ECHR – Article 5.1 Returns Directive – Article 15.1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: • 5(1)(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken 1. Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: • there is a risk of absconding or • the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence. 5(1)(f) exhaustively specifies permissible grounds for immigration detention – prevention of unauthorised entry and removal. The scope of the instrument is narrow (restricted to returns). The Provision(s) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. Scope Broad and general in application. Arbitrariness is strictly prohibited. Arbitrariness is strictly prohibited. Arbitrariness is strictly prohibited. Some key judgments • A v Australia • Bakhtiyari v Australia • C v Australia • • • • • • • Auad v Bulgaria Saadi v United Kingdom Abdi v United Kingdom A and Others v UK Al-Nashif v Bulgaria Kim v Russia Mikolenko v Estonia • Kadzoev case • Mahdi case Supervision and jurisdiction The Human Rights Committee examines individual complaints from countries party to the Optional Protocol to the ICCPR and makes non-binding recommendations in relation to cases heard. The European Court of Human Rights is a regional Court that has the power to make binding decisions. The European Court of Justice is a regional Court that has the power to make binding decisions.