Detention on Discriminatory Grounds: An Analysis of the Jurisprudence of the United Nations Working Group on Arbitrary Detention

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Leigh T. Toomey was appointed by the Human Rights Council as a member of the Working Group from August 1, 2015. Since April 2016, she has served as Vice-Chair on Follow-Up, with responsibility for the follow-up of recommendations made in Working Group opinions and during its country visits.

Over the last 27 years, the United Nations Working Group on Arbitrary Detention has developed a rich jurisprudence on the circumstances in which individuals have been arbitrarily detained. Until recently, most of this jurisprudence focused on detention resulting from the exercise of rights and freedoms, and serious violations of the right to fair trial. The Working Group is increasingly receiving communications involving detention on discriminatory grounds and its findings are evolving in response. Despite significant progress, there are several issues yet to be resolved by the Working Group as it moves toward a more comprehensive equality-based conception of arbitrary detention. The unresolved issues include the need for greater clarity on what constitutes discrimination; how to deal with laws that are discriminatory; how to distinguish between detention resulting from the exercise of rights and from discrimination; whether protection should extend to a broader range of individuals and groups; why poverty matters in detention practices, and whether the Working Group’s recommendations and follow-up need to be tailored in cases of discrimination. This article offers suggestions on the direction that the Working Group might take in its jurisprudence to resolve these remaining areas of uncertainty, including clarifying the circumstances in which differential treatment will amount to discrimination, determining that detention arising from discriminatory laws has no legal basis, taking a flexible approach to the overlap in the categories it employs to evaluate arbitrary detention, incrementally extending protection to marginalized groups such as those living in poverty, making recommendations to address the structural causes of discrimination, and using its follow-up procedure to highlight cases of detention on discriminatory grounds.

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