}
Mr Morris HKD WH 312
FROM:
PAUL FIFOOT
DATE:
25 APRIL 1988
HUCD 380/2
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HONG KONG TELNO 1149: "ARBITRARY"
1. There is not much help to be gained from the published decisions of the Human Rights Committee in determining the meaning of "arbitrary" in the UN Covenant on Civil and Political Rights. Two cases under Article 9, where "arbitrary" appears alone, equated it with unlawful. These were cases where a political dissident had been kidnapped in another country by the Security authorities of the jurisdiction complained of and brought within the latter jurisdiction. In a third case under Article 9 relating to an emergency degree, again the issue of unlawfulness appeared to be the main consideration.
2.
There are two cases on Article 17, where "arbitrary" appears together with "unlawful". In the first, the Committee dodged the issue, deciding the matter on the grounds of sexual discrimination (ie there was a violation of Article 17 read together with Articles 2 and 3), irrespective of whether the interference was arbitrary. The remaining case · Sandra Lovelace (communication number 24/1977; Selected Decisions, page 83) is more informative even though the main point of issue was Article 27 rather than Article 17. In considering an effect of legislation in this case, the Committee decided that "statutory restrictions
must have both a reasonable and objective justification and be consistent with the other provisions of the Convention read as a whole." This is the same kind of reasoning as the European Commission and Court of Human Rights imports into the European convention in testing whether an interference with an individual's rights are defensible under eg the paragraphs 2 of Article 8 to 11 on the grounds that they are justified in a democratic society, and it gives a line of approach to determining the kind of area which may be encompassed by the concept of arbitrariness in applying the relevant articles of the Covenant.
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