The Lawful Detention of Unauthorised Aliens under the European System for the Protection of Human Rights

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Abstract

This article evaluates the protections against 'arbitrary' and 'unlawful' detention aff orded to nonnationals on having entered the territory of a State party to the European Convention on Human Rights (ECHR). Focussing on Article 5 ECHR and the various permissible exceptions therein, the article examines leading decisions of the European Court of Human Rights (ECtHR) and, in so doing, illuminates and explores tensions arising from the juncture at which Contracting States' capacity to detain entry-seeking non-nationals, without criminal charge or trial, intersects with the requisites of Article 5(1)(f ) ECHR, as construed by the ECtHR. It argues that the ECtHR's interpretative standpoint regarding the 'lawful' administrative detention of 'unauthorised' non-nationals gives disproportionate preference to Contracting States' interest in managing migration flows. It also argues that in consequence States' obligations in international human rights law, the strictures of Article 5 ECHR and the credibility of the Strasbourg Court itself are enfeebled.
Original languageEnglish
Pages (from-to)193-218
JournalNordic Journal of International Law
Volume80
Issue number2
DOIs
Publication statusPublished - 2011

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ECHR
human rights
charge
party state
credibility
obligation
migration
Law

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title = "The Lawful Detention of Unauthorised Aliens under the European System for the Protection of Human Rights",
abstract = "This article evaluates the protections against 'arbitrary' and 'unlawful' detention aff orded to nonnationals on having entered the territory of a State party to the European Convention on Human Rights (ECHR). Focussing on Article 5 ECHR and the various permissible exceptions therein, the article examines leading decisions of the European Court of Human Rights (ECtHR) and, in so doing, illuminates and explores tensions arising from the juncture at which Contracting States' capacity to detain entry-seeking non-nationals, without criminal charge or trial, intersects with the requisites of Article 5(1)(f ) ECHR, as construed by the ECtHR. It argues that the ECtHR's interpretative standpoint regarding the 'lawful' administrative detention of 'unauthorised' non-nationals gives disproportionate preference to Contracting States' interest in managing migration flows. It also argues that in consequence States' obligations in international human rights law, the strictures of Article 5 ECHR and the credibility of the Strasbourg Court itself are enfeebled.",
author = "I Bryan and Peter Langford",
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AB - This article evaluates the protections against 'arbitrary' and 'unlawful' detention aff orded to nonnationals on having entered the territory of a State party to the European Convention on Human Rights (ECHR). Focussing on Article 5 ECHR and the various permissible exceptions therein, the article examines leading decisions of the European Court of Human Rights (ECtHR) and, in so doing, illuminates and explores tensions arising from the juncture at which Contracting States' capacity to detain entry-seeking non-nationals, without criminal charge or trial, intersects with the requisites of Article 5(1)(f ) ECHR, as construed by the ECtHR. It argues that the ECtHR's interpretative standpoint regarding the 'lawful' administrative detention of 'unauthorised' non-nationals gives disproportionate preference to Contracting States' interest in managing migration flows. It also argues that in consequence States' obligations in international human rights law, the strictures of Article 5 ECHR and the credibility of the Strasbourg Court itself are enfeebled.

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