Published: 02 March 2021 Author: Stefan Talmon
Recent years have seen an increase in the practice of arbitrary arrest and detention of foreign nationals by States in order to influence the conduct of the State of their nationality. Persons living, working, or travelling abroad are being detained and falsely charged and sentenced simply because of their nationality in order to gain leverage in inter-State relations. Quite often these are thinly veiled exercises of extortion. Germany considered itself at the receiving end of such practices. In response to the arrest of several German nationals (both single and dual nationals) in Turkey, Federal Foreign Minister Sigmar Gabriel said on 20 July 2017 that “German citizens are no longer safe from arbitrary arrest in Turkey” and that “arbitrary politically motivated expropriations [of German corporate investments in Turkey] are not only a threat but have actually occurred.” In an interview three weeks later, he stated with regard to Turkey that there “are now nine Germans who have no idea what crimes they are being accused of or who are having to fight far‑fetched accusations.”
On 15 February 2021, Germany joined the Canadian-led initiative against arbitrary detention and, together with 57 other countries and the European Union, endorsed the “Declaration Against the Use of Arbitrary Detention in State-to-State Relations” which reads as follows:
“The arbitrary arrest or detention of foreign nationals to compel action or to exercise leverage over a foreign government is contrary to international law, undermines international relations, and has a negative impact on foreign nationals traveling, working and living abroad. Foreign nationals abroad are susceptible to arbitrary arrest and detention or sentencing by governments seeking to compel action from other States. The purpose of this Declaration is to enhance international cooperation and end the practice of arbitrary arrest, detention or sentencing to exercise leverage over foreign governments.
Recognising a pressing need for an international response to the prevalence of these practices, and guided by international law and the principles of the Charter of the United Nations:
1. We reaffirm that arbitrary arrests and detentions are contrary to international human rights law and instruments, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and other international and regional human rights instruments;
2. We express grave concern about the use of arbitrary arrest or detention by States to exercise leverage over foreign governments, contrary to international law;
3. We are deeply concerned that arbitrary arrest, detention, or sentencing to exercise leverage over foreign governments undermines the development of friendly relations and cooperation between States, international travel, trade and commerce, and the obligation to settle international disputes by peaceful means;
4. We are alarmed by the abuse of State authority, including judicial authority, to arbitrarily arrest, detain or sentence individuals to exercise leverage over foreign governments. We call on States to respect their obligations related to a fair and public hearing by a competent, independent and impartial tribunal;
5. We urge all States to refrain from arbitrary arrest, detention, or sentencing to exercise leverage over foreign governments in the context of State-to-State relations;
6. We reaffirm the fundamental importance of the rule of law, independence of the judiciary, respect for human rights, and respect for the obligation to provide consular access in accordance with international law, including the Vienna Convention on Consular Relations and other applicable international instruments;
7. We call upon States to take concrete steps to prevent and put an end to harsh conditions in detention, denial of access to counsel, and torture or other cruel, inhuman or degrading treatment or punishment of individuals arbitrarily arrested, detained or sentenced to exercise leverage over foreign governments. We reaffirm the urgent need to provide these individuals with an effective remedy consistent with international human rights law, and call for their immediate release;
8. We stand in solidarity with States whose nationals (including dual nationals in accordance with endorsing countries’ laws on nationality) have been arbitrarily arrested, detained or sentenced by other States seeking to exercise leverage over them and acknowledge the need to work collaboratively to address this issue of mutual concern at the international level.”
By endorsing this political Declaration, States agree to stand in solidarity against arbitrary arrest, detention or sentencing by other States seeking to exercise leverage over them. The Declaration constitutes an important restatement of international law, making it clear that arbitrary arrest and detention in State-to-State relations constitutes a violation of international law. These acts do not only violate the human rights of the individuals concerned, but also give rise to consular assistance and diplomatic protection. With regard to the latter, one would wish that Germany and other States endorsing the Declaration would more forcefully exercise their right to diplomatic protection and make inter-State applications to international human rights bodies and bring inter-State claims before the International Court of Justice, whenever this is jurisdictionally possible.
Arbitrary arrest and detention, however, are not only a violation of international law in the context of State-to-State relations but breach international law generally. The United Nations Security Council, for example, called in resolution 2254 (2015) on the parties to the conflict in Syria to “release any arbitrarily detained persons, particularly women and children”. Both Article 9 of the Universal Declaration of Human Rights and Article 9(1) of the International Covenant on Civil and Political Rights are not limited to foreign nationals but provide that “no one” shall be subjected to arbitrary arrest or detention, including a State’s own nationals.
Category: Human rights