10 THE ITALIAN LAW JOURNAL NOS. 1-2 (2024)
Imprisonment or Detention for Inability to Fulfil a Contractual Obligation or Pay a Debt(s)
by Jamil Mujuzi
Art 11 of the International Covenant on Civil and Political Rights (ICCPR) provides that ‘[n]o one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation’. The drafting history of Art 11 shows that state delegates were divided on whether the prohibition should apply to any contractual obligation(s) between private individuals or should also extend to contractual obligations between private individuals and the state. The delegates, especially from Spanish and French speaking countries, argued that Art 11 should only be limited to civil obligations and should not cover contractual obligations between individuals and the state. Some delegates also argued that Art 11 should only be limited to prohibiting imprisonment for inability to pay debts and should not extend to all contractual obligations. However, most of the delegates rejected the proposal that Art 11 should only be limited to contractual obligations between individuals. They also rejected the view that it should be limited to inability to pay debts. In this article, the author analyses the jurisprudence and practice of the international (United Nations) and regional (inter-American, European, Arab and African) human rights bodies to demonstrate how this right is protected. The author also analyses the constitutions of over 190 countries and case law from many countries to show how this right is protected. A combined reading of the international, regional and national practice shows that most countries have prohibited imprisonment for inability to pay a debt. Very few countries have prohibited imprisonment for inability to fulfil a contractual obligation. This implies that the prohibition on imprisonment for inability to pay a debt has attained the status of customary international law.
DOI 10.23815/2421-2156.ITALJ ISSN 2421-2156