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APPENDIX A
International Legal Framework Governing Detention of Refugees,
Asylum Seekers and Migrants
Below is a description of the international treaties, guidelines, resolutions and principles
relevant to administrative detention.
• Universal Declaration of Human Rights 1948 (UDHR): Article 3 of the UDHR
provides that everyone has the right to liberty. Additionally, article 13 states that
every person has the right to freedom of movement and residence within the borders
of each state, including the right to leave any country and to return. Article 14 of the
UDHR provides that every person has the right to seek and enjoy asylum from
persecution.
• 1951 Convention relating to the Status of Refugees (the Geneva Convention):
The Geneva Convention is the primary document addressing the issue of refugee
protection, establishing the definition of refugee, the rights of refugees and the
obligations of States to provide protection. Article 26 requires states to permit
freedom of movement for refugees and asylum seekers who are lawfully in the
territory. Persons with asylum applications pending should be considered to be
lawfully in the territory and, therefore, should not be detained. Article 31(1) advises
states that they should not penalize refugees or asylum seekers on account of illegal
entry or presence in the host country. Article 31(2) urges governments to restrict
freedom of movement only when necessary. The drafters of the Geneva Convention
understood that detention could be necessary under certain circumstances. Therefore,
under Article 9, governments are permitted to take provisional measures in times of
war or other exceptional or grave circumstances and necessary to national security.
Such provisional measures include detention.
• International Covenant on Civil and Political Rights (ICCPR): The ICCPR
establishes the basic civil and politic rights of individuals. Articles relevant to
detention include the following: 1) Article 2 requires State Parties to ensure to all
individuals within its territories that the rights delineated in the covenant be respected;
2) Article 7 contains the prohibition against torture or cruel, inhuman or degrading
treatment; 3) Article 9 guarantees the right of liberty and security of persons to all; 4)
Article 10 provides that all persons detained shall be treated with humanity and
dignity; 5) Article 12 establishes that all persons within a state’s territory be
guaranteed freedom of movement and freedom to choose residence; 6) Article 13
establishes due process in expulsion procedures; and, 7) Article 40 requires State
Parties to submit reports relating to their compliance with the treaty. Article 1 of the
Optional Protocol to the ICCPR provides for an individual complaint mechanism for
persons alleging violations of the Convention.
• International Covenant on Economic, Social and Cultural Rights (ICESCR):
Article 3 of the ICESCR obliges State Parties to ensure the equal rights of men and
women in the enjoyment of all economic, social and cultural rights as set forth in the
treaty. This provision makes no distinction between nationals of States Parties and
foreigners residing therein.
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