A/HRC/22/44 factored into the arbitrariness standard itself. Thus, a State can never claim that illegal, unjust, or unpredictable deprivation of liberty is necessary for the protection of a vital interest or proportionate to that end. This view is consistent with the conclusion of the Human Rights Committee that the Covenant rights to not be arbitrarily deprived of one’s liberty and the right of anyone deprived of his or her liberty to bring proceedings before a court in order to challenge the legality of the detention are non-derogable.13 49. With regard to the right of anyone deprived of his or her liberty to bring proceedings before a court in order to challenge the legality of the detention, all regional treaties mentioned declare that right non-derogable.14 In addition, both the prohibition of arbitrary deprivation of liberty and the right of anyone deprived of his or her liberty to bring proceedings before a court in order to challenge the legality of the detention, are adopted in the domestic legislation of Member States of the United Nations, so that detaining someone without the required legal justification is against accepted norms of State practice.15 The International Court of Justice in its 2010 Diallo judgment stated that article 9, paragraphs 1 and 2, of the International Covenant on Civil and Political Rights and article 6 of the African Charter (Prohibition of Arbitrary Detention) are applicable in principle to any form of detention, “whatever its legal basis and the objective being pursued”.16 50. Furthermore, derogation from customary international law’s prohibition of arbitrary deprivation of liberty is not possible. The equivalent to the right to derogate under customary international law is to be found in the secondary rules on State responsibility, in particular in the plea of necessity as a circumstance precluding wrongfulness for an act inconsistent with an international obligation.17 The International Law Commission’s articles on Responsibility of States for internationally wrongful acts confirm that this may only be invoked where, inter alia, it “is the only way for a State to safeguard an essential interest against a grave and imminent peril” (art. 25, para. 1 (a)). As with the right to derogate codified in the human rights treaties, an essential condition for the valid invocation of the customary international law plea of necessity is that non-compliance with the international obligation at issue actually be necessary for this purpose and proportionate to that end.18 As noted above, this can never be possible with arbitrary deprivations of liberty. 13 14 15 16 17 18 GE.12-18935 Human Rights Committee, general comment No 29 (2001) on derogation during a state of emergency, paras. 11 and 16. The Inter-American Commission on Human Rights has also concluded that the arbitrary deprivation of liberty prohibition is non-derogable in its resolution adopted at the 1968 session, document OEA/Ser.L/V/II.19 Doc 32, Inter-American Yearbook on Human Rights, pp. 59– 61. The Inter-American Court of Human Rights has confirmed this with regard to the American Convention, see, for example, Habeas Corpus in Emergency Situations (arts. 27(2), 25(1) and 7(6) of the American Convention on Human Rights), Advisory Opinion OC-8/87, 1987, Series A, No. 8, paras. 42–44; Judicial Guarantees in States of Emergency (arts. 27(2), 25 and 8 of the American Convention on Human Rights), Advisory Opinion OC-9/87, 1987, Series A, No. 9, para 41(1); Neira Alegria et al v. Peru, Judgement of 19 January 1995, paras 82–84 and 91(2). See also Habeas Corpus in Emergency Situations, para. 35. See footnote 5 above. Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010, para. 77. International Law Commission, articles on Responsibility of States for Internationally Wrongful Acts, A/56/49(Vol. I) and Corr.4, art. 25. The customary character of both the doctrine of necessity itself, as well as the conditions for its invocation listed in the Commission’s articles, has been confirmed by the International Criminal Court in Gabčikovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, paras. 51 and 52. James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge, Cambridge University Press, 2002), p. 184: “the requirement of 19