article 5 human rights essay

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• Article 5: Right to liberty and security
• Human Rights
• Article 2: Right to life
• Article 3: Freedom from torture and inhuman or degrading treatment
• Article 4: Freedom from slavery and forced labour
• Article 6: Right to a fair trial
• Article 7: No punishment without law
• Article 8: Respect for your private and family life
• Article 9: Freedom of thought, belief and religion
• Article 10: Freedom of expression
• Article 11: Freedom of assembly and association
• Article 12: Right to marry
• Article 14: Protection from discrimination
• Article 1 of the First Protocol: Protection of property
• Article 2 of the First Protocol: Right to education
• Article 3 of the First Protocol: Right to free elections
• Article 1 of the Thirteenth Protocol: Abolition of the death penalty

Article 5 protects your right to liberty and security

It focuses on protecting individuals’ freedom from unreasonable detention, as opposed to protecting personal safety.

You have a right to your personal freedom. This means you must not be imprisoned or detained without good reason. 

If you are arrested, the Human Rights Act provides that you have the right to:

• be told in a language you understand why you have been arrested and what charges you face
• be taken to court promptly
• bail (temporary release while the court process continues), subject to certain conditions
• have a trial within a reasonable time
• go to court to challenge your detention if you think it is unlawful, and
• compensation if you have been unlawfully detained.

Are there any restrictions to this right?

There are certain circumstances in which public authorities can detain you as long as they act within the law. This applies, for example, if:

• you have been found guilty of a crime and sent to prison
• you have not done something a court has ordered you to do
• there is reasonable suspicion that you have committed a crime, someone is trying to stop you committing a crime or they are trying to stop you running away from a crime
• you have a mental health condition which makes it necessary to detain you
• you are capable of spreading infectious disease
• you are attempting to enter the country illegally, and
• you are going to be deported or extradited (sent to a country where you have been accused of a crime).

Using this right – examples

Steven, a young man with autism, needed temporary care while his father was unwell. The father assumed his son would stay at his usual respite care home, but the local council placed Steven in a specialist unit because of concerns about his behaviour. His father expected this to be a temporary move and for Steven be home again within weeks. When the council insisted on keeping him in the unit for longer, his father challenged this decision. Steven had been detained in the unit for almost a year when the Court of Protection (a specialist court at the High Court which deals with issues concerning people who lack the mental capacity to make decisions for themselves) ruled that the council had breached his Article 5 rights and unlawfully deprived him of his liberty. The court order enabled Steven to return home.

(Re Steven Neary; LB Hillingdon v Steven Neary (2011) EWHC 1377 (COP))

What the law says

This text is taken directly from the Human Rights Act .

Article 5: Right to liberty

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

• the lawful detention of a person after conviction by a competent court
• the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law
• the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so
• the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority
• the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants
• the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

Last updated: 03 Jun 2021

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Spring 2023 Human Rights Courses

"Why Human Rights?": Reflection by Eleni Christou

This post is the first installment from UChicago Law's International Human Rights Law Clinic in a series titled — The Matter of Human Rights. In this 16-part series, law students examine, question and reflect on the historical, ideological, and normative roots of the human rights system, how the system has evolved, its present challenges and future possibilities. Eleni Christou is a third year in the Law School at the University of Chicago.

Why Human Rights?

By: Eleni Christou University of Chicago Law School Class of 2019

When the term “human rights” is used, it conjures up, for some, powerful images of the righteous fight for the inalienable rights that people have just by virtue of being human. It is Martin Luther King Jr. before the Washington monument as hundreds of thousands gather and look on; it is Nelson Mandela’s long walk to freedom; or a 16-year-old Malala telling her story, so others like her may be heard. But what is beyond these archetypes? Does the system work? Can we make it work better? Is it even the right system for our times? In other words, why human rights?

Human rights are rights that every person has from the moment they are born to the moment they die. They are things that everyone is entitled to, such as life, liberty, freedom of expression, and the right to education, just by virtue of being human. People can never lose these rights on the basis of age, sex, nationality, race, or disability. Human rights offer us a principled framework, rooted in normative values meant for all nations and legal orders. In a world order in which states/governments set the rules, the human rights regime is the counterweight, one concerned with and focused on the individual. In other words, we need human rights because it provides us a way of evaluating and challenging national laws and practices as to the treatment of individuals.

The foundational human right text for our modern-day system is the  Universal Declaration of Human Rights . Adopted by the United Nations General Assembly in December, 1948, this document lays out 30 articles which define the rights each human is entitled to. These rights are designed to protect core human values and prohibit institutions and practices that are contrary to the enjoyment of the rights. Rights often complement each other, and at times, can be combined to form new rights. For example, humans have a right to liberty, and also a right to be free from slavery, two rights which complement and reinforce each other. Other times, rights can be in tension, like when a person’s right to freedom of expression infringes upon another’s right to freedom from discrimination.

In this post, I’ll provide an example of how the human rights system has been used to do important work. The international communities’ work to develop the law and organize around human rights principles to challenge and sanction the apartheid regime in South Africa provides a valuable illustration of how the human rights system can be used successfully to alleviate state human rights violations that previously would have been written off as a domestic matter.

From 1948 to 1994, South Africa had a system of racial segregation called ‘ apartheid ,’ literally meaning ‘separateness.’ The minority white population was committing blatant human rights violations to maintain their control over the majority black population, and smaller multiethnic and South Asian communities. This system of apartheid was codified in laws at every level of the country, restricting where non-whites could live, work, and simply be. Non-whites were stripped of  voting rights ,  evicted from their homes  and forced into segregated neighborhoods, and not allowed to travel out of these neighborhoods without  passes . Interracial marriage was forbidden, and transport and civil facilities were all segregated, leading to extremely inferior services for the majority of South Africans. The horrific conditions imposed on non-whites led to  internal resistance movements , which the white ruling class responded to with  extreme violence , leaving thousands dead or imprisoned by the government.

While certain global leaders expressed concern about the Apartheid regime in South Africa, at first, most (including the newly-formed UN) considered it a domestic affair. However, that view changed in 1960 following the  Sharpeville Massacre , where 69 protesters of the travel pass requirement were murdered by South African police. In 1963, the United Nations Security Council passed  Resolution 181 , which called for a voluntary arms embargo against South Africa, which was later made mandatory. The Security Council condemned South Africa’s apartheid regime and encouraged states not to “indirectly [provide] encouragement . . . [of] South Africa to perpetuate, by force, its policy of apartheid,” by participating in the embargo. During this time, many countries, including the United States, ended their arms trade with South Africa. Additionally, the UN urged an oil embargo, and eventually  suspended South Africa  from the General Assembly in 1974.

In 1973, the UN General Assembly passed the  International Convention on the Suppression and Punishment of the Crime of Apartheid , and it came into force in 1976. This convention made apartheid a crime against humanity. It expanded the prohibition of apartheid and similar policies outside of the South African context, and laid the groundwork for international actions to be taken against any state that engaged in these policies. This also served to further legitimize the international response to South Africa’s apartheid regime.

As the state-sanctioned violence in South Africa intensified, and the global community came to understand the human rights violation being carried out on a massive scale, countries worked domestically to place trade sanctions on South Africa, and many divestment movements gained popular support. International sports teams refused to play in South Africa and cut ties with their sports federations, and many actors engaged in cultural boycotts. These domestic actions worked in tandem with the actions taken by the United Nations, mirroring the increasingly widespread ideology that human rights violations are a global issue that transcend national boundaries, but are an international concern of all peoples.

After years of domestic and international pressure, South African leadership released the resistance leader Nelson Mandela in 1990 and began negotiations for the dismantling of apartheid. In 1994, South Africa’s apartheid officially ended with the first general elections. With universal suffrage, Nelson Mandela was elected president.

In a  speech to the UN General Assembly , newly elected Nelson Mandela recognized the role that the UN and individual countries played in the ending of apartheid, noting these interventions were a success story of the human rights system. The human rights values embodied in the UDHR, the ICSPCA, and numerous UN Security Council resolutions, provided an external normative and legal framework by which the global community could identify unlawful state action and hold South Africa accountable for its system of apartheid. The international pressure applied via the human rights system has been considered a major contributing factor to the end of apartheid. While the country has not fully recovered from the trauma that decades of the apartheid regime had left on its people, the end of the apartheid formal legal system has allowed the country to begin to heal and move towards a government that works for all people, one that has openly embraced international human rights law and principles in its constitutional and legislative framework.

This is what a human rights system can do. When state governments and legal orders fail to protect people within their control, the international system can challenge the national order and demand it uphold a basic standard of good governance. Since the adoption of the Universal Declaration of Human Rights, the human rights system has grown, tackled new challenges, developed institutions for review and enforcement, and built a significant body of law. Numerous tools have been established to help states, groups, and individuals defend and protect human rights.

So why human rights? Because the human rights system has been a powerful force for good in this world, often the only recourse for marginalized and minority populations. We, as the global community, should work to identify shortcomings in the system, and work together to improve and fix them. We should not —  as the US has been doing under the current administration  — selectively withdraw, defund, and disparage one of the only tools available to the world’s most vulnerable peoples. The human rights system is an arena, a language, and a source of power to many around the world fighting for a worthwhile future built on our shared human values.

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