Limits of the potentiality of International Human Rights Law in
superseding International Refugee Law
How International Law still needs a refugee-specific framework of protection of
refugee rights
Marco Seghesio
University of Amsterdam
Thesis submitted for the Master’s Degree in
Public International Law
Abstract
While originally refugee rights were protected solely by a refugee-specific branch of international law, and in particular by the 1951 Geneva Convention for the proteciton of refugees, the relations between this branch of internatioal law and human rights law - branch developed mainly throughout the second half of the last century and in recent years - is nowadays undeniable.
This is why refugees and asylum seekers may nowadays count, when seeking proteciton, not only on traditional refugee law, but on a wide array of non-refugee-specific instruments constituting international human rights law.
The thesis aims to let the reader tnotice how much human rights law has been informing - and at times even superseding - international refugee law, giving the impression that the latter is now nothing but a ‘relic of a bygone era’.
But is this the truth, or is it maybe just an impression due to a superficial analysis of the matter? The thesis will not only point out the areas and entitlements in which internaitonal human irghts law has informed refugee law.
It aims, in fact, to give the reader a comprehensive overview of what is necessary in order to answer the main question: has international human rights law the potentiality to completely supersede international refugee law?
TABLE OF CONTENTS
INTRODUCTION………..……….1
1 - INTERNATIONAL HUMAN RIGHTS LAW SUPERSEDING INTERNATIONAL
REFUGEE LAW - GENERAL CONCEPTS………..……….7
1.1 - Scope of application and beneficiaries………..………..7
1.2 - Available procedures of implementation……….………….10
1.3 - The role of interpretation………..………….14
2 - INTERNATIONAL HUMAN RIGHTS LAW SUPERSEDING INTERNATIONAL
REFUGEE LAW - SPECIFIC ENTITLEMENTS……….………19
2.1 - The principle of non-refoulement in international refugee law and in
international human rights law………...………19
2.2 - The notion of persecution as informed by international human rights
law……….……….25
2.3 - The right to family life of refugees………...……..27
3 - INTERNATIONAL HUMAN RIGHTS LAW LACKING POTENTIALITY TO
SUPERSEDE INTERNATIONAL REFUGEE LAW………..…………..30
3.1 - Refugee-specific legal framework as the only suitable framework of
protection………..…30
3.2 - An interesting proposal - Solution-oriented protection and collectivized
responsibility……….39
CONCLUSIONS……….44
INTRODUCTION
Although international refugee law and international human rights law were originally conceived as two distinct branches of the international legal order, their interaction is now acknowledged in both state practice and academic writing.1
Originally the only interaction between the two branches was a causal one: the phenomenon of refugees originates out of serious violations of human rights.2 It has been noticed that gradually the
interrelation between the two has shifted from a preventive approach to an interactive one, and finally to an integrative one.3
While the 1951 Convention is the foundation of the international framework of refugee protection, “it is no longer the sole repository of rights applicable to refugees and asylum seekers”4: international
human rights law has played a great role in the protection of such rights.
Several human rights treaty bodies have been dealing with refugee issues.5 In fact, refugees and
asylum seekers are increasingly resorting to human rights mechanisms in the absence of an individual complaints procedure under the Refugee Convention.6 Furthermore, the [UNHCR] has consistently
reiterated the obligation to treat asylum seekers and refugees in accordance with applicable human rights and refugee law standards as set out in relevant international instruments.7
It has even been argued that ‘human rights law is the primary source of refugee protection, while the Geneva Convention is bound to play a complementary and secondary role.’8
In contrast, the large majority of the doctrine shares the view that “the specific rights provided by international refugee law, based on the special character of refugees, remain the primary source of their protection”.9
1Vincent Chetail, ‘Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between
Refugee Law and Human Rights Law’, in Ruth Rubio Marin, ‘Human Rights and Immigration’ (2014), p. 1. 2See Alice Edwards, ‘Human Rights, Refugees, and the Right ‘To Enjoy’ Asylum’, in International Journal of Refugee Law, Vol 17 (2005), p. 294.
3V. Chetail, ‘Are Refugee Rights Human Rights?’, p. 38. 4Ibidem, p. 303.
5See, for instance, Committee on the Rights of the Child, General Comment no. 6 (2005) or the jurisprudence on the rights of family reunification under art. 8 and prohibition of torture, inhuman or degrading treatment under art. 3 ECHR.
6See A. Edwards, ‘Peter Pan’s Fairies and Genie Bottles: the UN Human Rights Treaty Bodies and Supervision of the 1951 Convention’, in James C. Simeon, ‘The UNHCR and the Supervision of International Refugee Law’ (2013).
7See Executive Committee Conclusion No. 82 on Safeguarding Asylum (1997) para (d)(vi); Conclusion No 19 on Temporary Refuge (1980), para. (e); Conclusion no. 22 on Protection of Asylum Seekers in Situations of Large Scale Influx (1981), para (b); Conclusion no. 36 on General Matters (1985), para. (f).
8Ibid, p. 21.
9Daniel Moeckli, Sangeeta Shah, Sandesh Sivakumaran,‘International Human Rights Law’, Oxford University Press, 2ndedition, (2014) p. 513.
The aim of the present thesis is to point out the opinions of the leading authors on the point, in order to make some order among discordant opinions within the refugee law doctrine, and assess the suitability of both contrasting views.
One of the reasons is support of a distinction between the two branches hereby considered10is to be
found in the terms in which the main legal document of international refugee law, the 1951 Geneva Convention, is formulated, in contrast with the peculiar formulation of the states’ legal obligations of human rights legal documents.
First, while the rights contained in international human rights instruments are “recognized” rather than created – thus implying their pre-existence, as a sort of natural law – traditional refugee law rights (as the ones contained in the 1951 Geneva Convention) are in fact created, rather than recognized. Therefore, States did not, in the Refugee Convention, consider the assumption than such rights already existed: the right of asylum has been long considered a right of the sovereign States, rather than of individuals11.
Secondly, whereas human rights treaties are formulated in terms of rights of individuals12, a different
consideration applies to the 1951 Geneva Convention, unequivocally formulated in terms of inter-States obligations, i.e. in the traditional formulation of international law legal documents.
This preliminary remark may appear limited to a theoretical usefulness, but a more careful approach is necessary to point out that the practical consequences in terms of quality of protection and implementation are multiple. This chapter is indeed aimed to emphasize how the two branches differ in terms of scope of application (and in particular beneficiaries), implementation and interpretation; all of this factors are strongly interdependent, therefore while analyzing each of them it remains important to keep in mind that such differences are to be considered not as singular and specific self-standing ones, but as part of a more complex and comprehensive discourse: of course different formulations of the rights lead to different ways of implementation, and of course different ways of implementation lead to different ways of interpretation.
The first chapter will be therefore of a comparative character, granting to the reader some general basic reasons of distinction between the two branches.
The scope of application (and therefore the beneficiaries) of the two will be the initial focus. The emphasis will then shift on the available procedures for implementation of the instruments considered. Lastly, some notions of interpretation will be analyzed.
10For a view in support of this, see V. Chetail, ‘Are Refugee Rights Human Rights?’, p. 2.
11See Malcolm N. Shaw, ‘International Law’, Cambridge University Press, 7thedition (2014); See also Pieter Boeles, Maarten den Heijer, Gerrie G. Lodder, Cornelis Wolfram Wouters, ‘European Migration Law’, Intersentia, 2ndedition (2014).
12E.g. expressions such as ‘All peoples have the right…’, ‘All peoples may…’, ‘Every human being has the right…’, ‘No one shall be subjected to…’, ‘Everyone has the right…’ are all consistently recurrent.
It will appear clear to the reader that in these general areas international human rights law has been able to offer a better protection not only to individuals in general, but to refugees in particular.
The thesis will move on by highlighting more particular concepts and notions of traditional refugee law which have been particularly informed by human rights law activities: it will thus deal with basic notions of the traditional regime of refugee protection as contained in the 1951 Geneva Convention13:
the notion of persecution and the one of non-refoulement.
As regards substantive rights, that of family life will be stressed, given the extended jurisprudence of the ECtHR on the matter, and given the fact that, as explained in the relevant paragraph, family life may be seen as a great issue in refugee law.
The second chapter aims to give the reader a demostration of how international human rights law has played a major role not only on the plane of general concepts of international law, but also on the one of more characteristic refugee law notions.
The third chapter will act as a sort of ‘counterpart’ to the previous part of the thesis.
In other words, after having emphasized some general legal differences and relations between the two bodies of international law, and after having pointed out the mechanism through which human rights law is capable of actually informing traditional refugee law concepts, a question arises spontaneously: without questioning that the enhancement of protection of disadvantaged categories of individuals is to be welcomed, and therefore without criticizing such development due to the evolution of the latter branch of international law, it is anyway interesting to question whether, in legal terms, such alternative solution (to a more orderly development and re-designation and update of international refugee law) is indeed the most suitable – and preferable - solution for the future.
Specifically, the thesis will try to assess the extent of the usefulness of refugee law notwithstanding the evolution of human rights law, which has led to a substantial overlap in terms of protection provided. Is it merely a “relict of a bygone era”, or does it still retain its share of usefulness? The opinions of the leading scholarship will be highlighted in the first part of this third chapter.
Such rights and entitlements that still find a better protection in traditional refugee law will be pointd out in the first part of the third chapter.
An interesting proposal for modernizing international refugee law within the original framework of protection14will be analyzed, to demostrate how it is possible to think of a reform of such branch even
without creating a new convention on the protection of refugees abandoning the 1951 one.
13Art. 1(A)(2), see following chapter for the complete text.
14 Convention Relating to the Status of Refugee (Geneva, 28 July 1951, in force from 22 April 1954) and (Optional) Protocol Relating to the Status of Refugee (New York, 31 January 1967, in force form 4 October 1967).
1 - INTERNATIONAL HUMAN RIGHTS LAW SUPERSEDING INTERNATIONAL
REFUGEE LAW - GENERAL CONCEPTS
1.1 Scope of application and beneficiaries
Let us considerer, to begin, the scope of application of the 1951 Refugee Convention: given the fact that it is applicable to “refugees”, what we need to answer is the question “who is a refugee?”; the answer is easy to be found in the convention: given the very little (if no) usefulness of the outdated art. 1(A)(1)15 and the modification operated by the 1967 Optional Protocol16, a refugee under universal
international law is any person who
(2) As a result of events occurring before 1 January 1951 and owing to well-founded fear17of being
persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion18, is outside the country of his nationality and is unable or, owing to such fear, is
unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.19
15Reciting “any person who: (1) Has been considered a refugee under the Arrangements of 12 May 192615and
30 June 192815or under the Conventions of 28 October 193315and 10 February 193815, the Protocol of 14
September 193915or the Constitution of the International Refugee Organization15;
16The Optional Protocol to the Convention extended such definition, as regards States parties to the protocol itself, as including all refugees respecting the requirements indicated in the definition “as if the words "As a result of events occurring before 1 January 1951 and..." and the words "...as a result of such events", in article 1 A (2) were omitted” (Art. 1(2) Optional Protocol).
Therefore, providing that a State party to the Convention has also signed and ratified the Protocol - Which is the case of all 145 States parties to the original Convention with the exception of Madagascar - or even only the Protocol - As is the case of two States: US and Venezuela, the Convention may well be still useful for all future events.
17The meaning of such fear is controversial, but it is here accepted the view that such fear must be objective, rather than purely subjective, in support of the view of authoritative exponents of the doctrine. For a comprehensive and neutral analysis on the meaning of “well founded fear” see, in particular, Andreas Zimmermann, Mahler, in A. Zimmermann, ‘The 1951 Convention relating to the status of refugees and its 1967 Protocol’, Oxford University Press, 2011, p. 338-341.
In support of the objective theory, see James C. Hathaway, William S. Hicks, Is there a Subjective Element in the Refugee Convention's Requirement of 'Well-Founded Fear'?, in MJIL 26 (2005), in particular p. 560-563. 18This is called ‘nexus link’, or ‘causal link’.
The words highlighted in the definition show that four are the requirements to be (all) fulfilled to be considered a ‘refugee’ for the purposes of the Convention (i.e. universal international law).20
What is very important to notice is that the mere fulfillment of all such requirements is not enough to have access to the whole range of rights offered (albeit in terms of inter-State obligations, as already emphasized) by such legal instrument: the content of the “rights” – or better saying, State “obligations”, is that “refugees are entitled to an expanding array of rights as their relationship with
the asylum State deepens”.21Thus, only some very fundamental rights22are enjoyable by all people
who fall within the refugee definition of art. 1(A)(2), with the sole requirement of falling within the State’s jurisdiction.
Most rights of the Convention do require a certain level of attachment – physical presence, indicating the mere presence, lawful or unlawful, in the territory subject to a State’s jurisdiction;23 lawful
presence, whose meaning is clear;24 lawful stay, indicating a higher level of attachment than mere
lawful presence, even if there is no unequivocal and undisputed demarcation line between the two, and the interpretation of the terms may be very much “up to national authorities, generating a potentially chaotic situation featured by inconsistency between national practices;25 durable
residence26.
We want now to consider the scope of application of international human rights law: as it is clearly expressed by many of the main universal and regional conventions on human rights, such as art. 1 ECHR27, but also art. 2 ICCPR28, art. 2 CRC29, art. 2 CAT30, art. 1 ACHR31, such instruments
20 For a more comprehensive analysis of the refugee definition, see, for instance, P. Boeles and Others, ‘European Migration Law’.
21James C. Hathaway, ‘The Rights of Refugees under International Law’, Cambridge University Press, 2005, p. 156. See also Guy S. Goodwin-Gill, Jane McAdam, ‘The Refugee in International Law’, Oxford University Press, 3rdedition (2007).
22 E.g. non-refoulement (art. 33), non-discrimination (art. 3), property (art. 13), access to courts (art. 16), rationing (art. 20), education (art. 22), fiscal charges (art. 29), naturalization (art. 34).
23Religion (art. 4); Identity papers (art. 27); non-penalisation for illegal entry or stay (art. 31). 24Self-employment (art. 18); freedom of movement (art. 26); expulsion (art. 32).
25 Association (art. 15), wage-earning employment (art. 17); liberal professions (art. 19); housing (art. 21); public relief (art. 23); labour legislation and social security (art. 24); travel documents (art. 28)
26Only few additional rights such as benefit from legal aid systems, exemption from legislative reciprocity, no restrictive measures as regards employment of aliens.
27 The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.
28Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant […].
29 States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction […].
30The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms […]. 31The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms
individuate as their beneficiaries all individuals under States parties’ jurisdiction; some treaty monitoring bodies’ General Comments confirm it, the best example being, as containing express reference to asylum seekers and refugees, General Comment 31 Human Rights Committee32.
Apart from the express reference to asylum seekers and refugees, it is important to notice that such passage of this GC emphasizes that a State’s jurisdiction is not limited to its formal territory, and this applies to all human rights treaties: there may happen that a State, for whatever reason, has control on part of the territory formally of another State, or that it has control over a certain individual specifically: in such cases the State will be responsible for its violations of human rights, as in human rights law jurisdiction has been recognized to be not only territorial, but extra-territorial as well33and,
more interestingly under the point of view of protection, “functional”34.
To conclude on beneficiaries, it is safe to argue that the scope of application of international human rights law is wider than the one of refugee law: being refugees human beings, they are obviously not excluded by the scope of application of international human rights law.
And what is more, the above mentioned expanding array of rights according to the level of attachment with the host State is not a characteristic of human rights law; as soon as an individual finds himself or herself within a State’s jurisdiction, he or she benefits, in principle, from the whole range of rights provided for by human rights law instrument of which the State is party.35
Given all the above mentioned considerations, it is therefore safely arguable that, under the point of view of scope of application and beneficiaries, international human rights law has superseded traditional refugee law.
32 Human Rights Committee, General Comment No. 31 [80], ‘The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, 26 May 2004, CCPR/C/21/Rev.1/Add.13, Par. 10. “States Parties are required […] to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not
situated within the territory of theState Party. […] the enjoyment of Covenant rights is not limited to citizens
of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as
asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or
subject to the jurisdiction of the State Party”. 33Cases to al-skeini
34Al-skeini, concussing opinion judge Bonello
35 Despite exceptions to this principle are allowed for few purely political rights (for instance right to participation in political life, right to vote…) for which citizenship is a pre-requirement by definition, and for economic, social and cultural rights to non-nationals as far as underdeveloped countries are concerned (See art. 2 ICESCR; more specifically, see Committee on Economic, Social and Cultural Rights, General Comment No. 3, ‘The Nature of States Parties’ Obligations’, 14 December 1990, E/1991/23 . A minimum core of each rights has to be guaranteed, according to the communis opinio).
1.2 – Available procedures for implementation
The next step for a basic comparison of the two branches thus consists in taking into account the implementation systems which characterize them.
A distinguishing features of the core human rights conventions (either universal and regional) is the establishment of treaty monitoring bodies - in the fashion of proper judicial bodies at all effects, such as in the case of the three major regional conventions36 (in the American and African
frameworks the Court is coupled by a Commission, while in the European case the former Commission and Court were merged in 199837), or simple quasi-judicial bodies, not able to issue
binding decisions but merely non-binding views, which authoritativeness must not be, however, disregarded, as in the case of the UN core conventions.38
Briefly, such organs may be addressed both by States, giving rise to “inter-States complaints” or, most striking in an international legal order traditionally really State-centred, by individual, which have been recognized an – albeit limited – legal personality in the field of human rights law. Thanks to such development, “to affirm today that the individual is a mere object of international law seems to ignore the tremendous efforts of the international community to recognize and effectively protect an impressive array of human rights”.39
And what about the Refugee Convention? Is it characterized by a monitoring body? And if yes, is such organ judicial, or quasi-judicial?
The first question should be answered in positive, albeit only partially : the United Nations High Commissioner for Refugees (hereinafter UNHCR) is indeed a monitoring body of the world’s situation on refugees, and therefore it is clearly involved in monitoring the compliance of States parties with the Convention; but the difference with human rights treaty bodies is that, while the latters are established directly by a Convention40, which also provides basic provisions in terms of
36 European Convention of Human Rights (4 November 1950, in force from 3 September 1953), American Convention of Human Rights (22 November 1969, in force from 18 July 1978), African Charter of Human and Peoples’ Rights (01 June 1981, in force from 21 October 1986).
37 Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedom, Restructuring the Control Machinery Established Thereby, Strasbourg, 01 November 1998.
38 Namely the Human Rights Committee (ICCPR), the Committee on Economic, Social and Cultural Rights (ICESCR), the Committee Against Torture (CAT), the Committee for the Rights of the Child (CRC), the Committee on the Elimination of Racial Discrimination (CERD), the Committee on the Elimination of Discrimination against Women (CEDAW), the Committee on Migrant Workers (CMW), the Committee on the Rights of Persons with Disabilities (CRPD) and the Committee on Enforced Disappearances (CED)
39 Linos-Alexander Sicilianos, ‘The Human Face of International Law – Interaction Between General International Law and Human Rights: An Overview’, in Human Rights Law Journal, Vol. 32 no. 1-6, 30 November 2012.
40 See, for instance, ECHR, SECTION II, in particular art. 19, as an example of a regional framework of protection, and ICCPR, art. 28, as an example of a UN treaty body.
their functioning, and thus form an integral part of its framework, the UNHCR was indeed created by UN General Assembly resolution41, rather than by States parties through the Refugee Convention.
It is therefore not integral part of the framework established by the Convention42, but it is a subsidiary
organ of the General Assembly and, therefore, its functions are broader than simply monitoring State’s compliance with the Convention.
This is reflected in the fact that it shall assume the function of providing international protection, under the auspices of the United Nations, to refugees who fall within the scope of the present Statute (rather than of the Refugee Convention), and in the difference in definition of refugees – to be noticed, the lack of the membership to a particular social group in the Statute’s definition, the requirement that he/she is unwilling to return “for reasons other than personal convenience”43.
The corollaries of being a general UN organ, rather than purely a treaty monitoring body, may be reassumed in an upside and a downside:
Its competence extends not only to States parties to the Refugee Convention or to the Optional Protocol, but to all UN member States – despite almost all of them are also parties to the Convention or Protocol as already mentioned, and this consideration reduces the weight of such upside.
Moreover, its mandate extends to the protection of stateless persons and internally displaced persons44,
not being directly bound by the sole terms of the Convention.
On the other side, the price for this more general competence is paid by a lack of effective mechanisms of implementation of the Refugee Convention, being its role merely, as a matter of facts, of guidance.
It might also be useful to briefly point out its role and its functions as regards refugees and asylum seekers. Its constitutive document45 emphasizes its role of “seeking permanent solutions for the
problem of refugees” by cooperating with governments; its non-political character is expressed;46its
competence shall extend, according to the Statute itself47, roughly to the same categories of persons
defined in art. 1(A)(2) Refugee Convention.
Chapter 2 Stature indicates a series of functions, which vary from the promotion of conclusion and implementation of Conventions on Refugees, to the promotion of the admission of refugees and their
41Established in 1950 by Resolution 438 (V) for a period of three years only, as States believed that within that short time refugee problem would come to an end. Its mandate was then extended: for other definite periods of five years initially, for an indefinite period - until the refugee problem is solved, essentially – recently.
42The UNHCR was indeed established one year before the date of signature of the Convention.
43tatute of the Office of the United Nations Hight Commissioner for Refugees, General Assembly Resolution 428 (V), 14 December 1950, Chapter 1, par. 1 and Chapter 2(6)(A).
44See NOTE ON THE MANDATE OF THE HIGH COMMISSIONER FOR REFUGEES AND HIS OFFICE, UNHCR.
45Statute UNHCR. 46Ibidem, Chapter 1. 47Ibid. Chapter 2.
voluntary repatriation and the transfer of their assets, to the facilitation of cooperation with and between governments and with and between private organisations dealing with refugees issues.
The ECOSOC48established, in 1958, the Executive Committee of the Programme of the United
Nations High Commissioner for Refugee49- with an advisory and executive function50- consisting of
State representatives (and therefore, political in character), formally a subsidiary organ of the General Assembly itself (political as well), similarly to the High Commissioner who, “acting under the authority of the General Assembly, may not be qualified as a totally independent organ – despite the fact that “the work of the High Commissioner shall be of an entirely non-political character”.51It has
to be noticed, in support of its lack of complete effective independence, that it is mainly funded on a voluntary basis, especially by States and EU. The 85% of its funds is earmarked, i.e. it must be used for purposes designated by the donors, which are, as mentioned, mainly States.
The political nature of this institution is therefore in contrast with the independent-expert one which characterizes international human rights bodies.
As a logic consequence, apart from these (very general) categories of functions, it is worth noting that the Statute does not establish any form of complaints mechanism, neither inter-States nor individual. It is therefore neither judicial, nor quasi-judicial, and its functioning is not nearly as effective, in terms of quality of protection, as the ECHR and other judicial human rights bodies, and even as other similar, albeit quasi-judicial, monitoring bodies.
It is interesting to recall that at the Geneva Consultation on European Refugees, the creation of an (only regional) European Refugee Commission was suggested52, but at a distance of 40 years it is safe
to say that the proposal was unsuccessful.
Therefore, what happens in case of an alleged violation of the Convention (or, more generally, of international refugee law obligations) by one or more States parties? The question has to be answered with reference to international responsibility: States are free, as for any other international legal norms, to claim responsibility of other States for non-compliance with their legal obligations towards them, and under this point of view individuals, entitled to international protection under the Geneva Convention, may only rely on such possibility of other States; indeed, Art. 38 provides that any dispute between parties to this Convention relating to its interpretation or application, which cannot be
48United Nations Economic and Social Council, established on 24 June 1945 by the UN Charter (Chapter X, THE ECONOMIC AND SOCIAL COUNCIL), operative since 17 January 1946.
49 UN Economic and Social Council (ECOSOC), UN Economic and Social Council Resolution 672 (XXV): ‘Establishment of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees’, 30 April 1958, E/RES/672 (XXV), following the requirement of its establishment by the UN General Assembly by Resolution 1166, ‘International Assistance to Refugees Within the Mandate of the United Nations High Commissioner for Refugees’, 26 November 1957 (XII Session).
50 These include advising the High Commissioner in the exercise of his/her functions, to review funds and programmes, authorizing the High Commissioner to make appeals for funds, approving proposed biennial budget targets. See http://www.unhcr.org/executive-committee.html.
51Statute UNHCR, Chapter 1 par. 2.
settled by other means, shall be referred to the International Court of Justice at the request of any one of the parties to the dispute.
But “given the well-known reluctance of States to point the finger at their fellow States in cases of violations of international law”53in the field of human rights law, proved by the fact that “it is of note
that States hardly ever take advantage of inter-State claims mechanisms under human rights treaties”54,
mainly due to the “trouble and expense of beginning long and complex proceedings over […] issues of interpretation, particularly as it is of no tangible benefit to States”55, “this mechanism has never
been used and it is unlikely that it ever will be”.56
After all, the major features which is shared by both branches of international law here considered is that they do not create rights on States, but on beneficiaries which are not parties to the relevant instrument, which do not take part in their drafting process, and which
do not have the same degree of international legal personality that States have, and therefore which do not have the general possibility to formally claim responsibility for violations if not expressly entitled to do so by States themselves (as it happens in international human rights instrument). Refugee law has not been able, so far, to offer and actual and effective protection in terms of possibility to activate implementation.
To conclude on this matter, also here international human rights law has proved to be at the forefront in implementation mechanisms, in contrast with the more ‘traditional’ international refugee law.
53 Andrea Bianchi, ‘The Fight for Inclusion: Non-State Actors and International Law’, in Ulrich Fastenrath, Rudolg Geiger, Daniel-Erasmus Khan, Andreas Paulus, Sabine von Schorlemer, Christoph Vedder, ‘From Bilateralism to Community Interest: Essays in Honour of Bruno Simma’, Oxford University Press, 2011
54Ibidem, note 62.
55Anthony M. North, Joyce Chia, ‘Towards Convergence in the Interpretation of the Refugee Convention: A Proposal for the Establishment of an International Judicial Commission for Refugees’, in J. McAdam, ‘Forced Migration, Human Rights and Security’, Hart Publishing, 2008, p. 225-262.
1.3. The role of interpretation
Lastly, to close with the firt chapter, the issue of interpretation has to be considered.
The mechanism of interpretation may be defined as the means of expression of the normative content of the provisions, that is to say the means to find, within the provisions, the norms therein contained. Interpretation is therefore the practice aimed at transforming the provision into norm.57
Interpretation is decisive for the concrete way to apply the sources of law. The legal order is, in fact, a bundle of interpretations, and therefore, of norms. The bundle of provisions is instead only the
potential legal order, a set of interpretative possibilities; of, in other words, potential norms.
Interpretation is the mechanism which looks for the most appropriate rule to be applied to the concrete factual case.58
The normative act is articulated in statements: a statement is whatever linguistic expression with a complete grammatical form; the normative act’s statements are called normative provisions. It is not correct to think that these statements may have a precise, univocal, unambiguous and unequivocal meaning, simply made up of the sum of their single words; the language is more complex, and the same single words may well have more than one meaning, the sense of a statement may well change according to its context, beneficiaries, historical period. The myth of clear and univocal provisions is, indeed, a myth: and this is not a fault of the law-maker, but of the language itself. From a single normative provision, many norms may be reached, according to the interpretative pattern used.59
This is why interpretation is not at all of secondary importance. This is true in whatever legal order; the international one is, of course, no exception.
It is well known that the general rules of treaty interpretation, deemed to represent international customary law, are codified in art. 31-33 VCLT.60
In order to face the topic, reference to the ECtHR should be made: among all human rights treaty bodies, it is the one that has considered the matter of interpretation to the greatest extent.
57On the difference between provision and norm see Vezio Crisafulli, ‘Disposizione (e norma)’, in Enciclopedia del Diritto, XIII, 1964, p. 195 and following.
58 See Gustavo Zagrebelsky, ‘Manuale di Diritto Costituzionale, Volume Primo – Il Sistema delle Fonti del Diritto’, Utet, 2006 edition, p. 68-69.
59See Roberto Bin, Giovanni Pitruzzella, ‘Diritto Costituzionale’, Giappichelli, XII edition, 2011, p. 308-311. 60 Vienna Convention on the Law of Treaties, 23 May 1969 (in force since 27 January 1980). For a basic explanation on treaty interpretation, see M. Shaw, ‘International Law’, p. 675-680.
“The European Court of Human Rights adopted, in its earliest case law61, ordinary rules on the
interpretation of international treaties”.62And therefore, “The Court is prepared to consider, as do the
Government and the Commission, that it should be guided by Articles 31 to 33 of the Vienna Convention of 23 May 1969 on the Law of Treaties. That Convention has not yet entered into force and it specifies, at Article 4, that it will not be retroactive, but its Articles 31 to 33 enunciate in essence generally accepted principles of international law to which the Court has already referred on occasion”.63
Importantly, “it is also necessary to seek the interpretation that is most appropriate in order to realize the aim and achieve the object of the treaty, not that which would restrict to the greatest possible degree the obligations undertaken by the Parties”.64
“The Court also decided not to attach great weight to the preparatory works, although it relied on them to confirm an interpretation in the Belgian Linguistic case. The intention of the contracting parties has been emphasized on occasion, but the Court has given primacy to the text of the Convention read in the light of its object and purpose, the principle of effectiveness, and general principles of law. The Court has expressly stated that the ECHR ‘should so far as possible be interpreted in harmony with other rules of international law of which it forms part’”.65
Of particular relevance are the doctrines of evolutive interpretation and effective interpretation, elaborated again by the ECtHR but analogously applicable more generally to the entire branch of international human rights law. According to the former, “the Convention is a living instrument which […] must be interpreted in the light of present-day conditions. In the case now before it the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field”.66
According to the latter interpretative principle, “The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective”.67
61 Jonas Christoffersen, ‘Impact on General Principles of Treaty Interpretation’, in Menno T. Kamminga, Martin Scheinin, ‘The Impact of Human Rights Law on General International Law’, Oxford University Press, 2009, p. 37-61, note 13: Lawless v. Ireland (No. 1) (Preliminary objection) (App. No. 332/57), ECtHR, Judgment of 14 November 1960, (1960) Series A No. 1; Lawless v. Ireland (No. 3) (App. No. 332/57), ECtHR, Judgment of 1 July 1961, (1961) Series A No. 3, 53, para. 14; Wemhoff v. Germany (App. No. 2122/64), ECtHR, Judgment of 27 June 1968 (1968) Series A No. 7, para. 8; Case ‘relating to certain aspects of the laws on the use of languages in education in Belgium’ (Belgian Linguistic Case) (merits) (App. No. 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64), ECtHR, Judgment of 23 July 1968, (1968) Series A No. 6; Ringeisen v. Austria (App. No. 2614/65), ECtHR, Judgment of 16 July 1972, (1971) Series A No. 13.
62J. Christoffersen, ‘Impact on General Principles of Treaty Interpretation’, in M. Kamminga, M. Scheinin, ‘The Impact of Human Rights Law on General International Law’, p. 40.
63Golder v UK. Par. 29. 64Wemhof v Germany, par. 8.
65J. Christoffersen, ‘Impact on General Principles of Treaty Interpretation’, in M. Kamminga, M. Scheinin, ‘The Impact of Human Rights Law on General International Law’, p. 41.
66Tyrer v UK, par. 31. 67Airey v Ireland, par. 24.
Of course international human rights law has the advantage, in terms of protection, that the interpretation of the provisions concerned is, yes, mainly for domestic courts, basic guardians of international human rights obligations of the respective States, but, on the other side, the treaty monitoring bodies play a major role in rendering interpretations by State’s organs (domestic courts included) uniform. If the domestic Courts do not carry out an interpretation in conformity with the standards set out by international monitoring bodies, individuals (after exhaustion of local remedies) may still rely on the interpretative process carried out by such international bodies.
And this is surely one of the most important achievements, in terms of protection, of international human rights law: thanks to the existence of such international bodies and their work68States are no
longer free to “determine the extent of their own obligations”69.
But what about the Refugee Convention? “The UNHCR has a supervisory role in overseeing the implementation and application of the 1951 Convention70. However, this competence does not extend
to a mandate to provide binding rulings or opinions on the meaning of particular treaty terms, and accordingly the UNHCR can only issue guidance on the 1951 Convention’s interpretation.71Similarly,
while Executive Committee Conclusions may be instructive on interpreting and applying the 1951 Convention, they are not binding on States.72
Therefore the ‘traditional’ rule on interpretation and application fully applies to refugee law: “each State must start by determining the extent of its own obligations; no State can lay down the law for any other”73, and “the additional lack of a monitoring body having the authority to adopt general
comments and concluding observations on State reports increases the discretion of States by the interpretation and application of the 1951 Convention. Instead of establishing a universal “common order” that would dissolve disparities among the contracting parties and would achieve “burden-sharing”, the systemic features of the 1951 Convention are likely to strengthen the forces of fragmentation and regionalization”.74
Also under this point of view international human rights law has developed a stronger protection from the individuals’ perspective.
However interestingly, and to connect the two branches of international law, international human rights law has had the effect of enhancing refugee protection also by means of interpretation, and
68See, for example, HRC, General Comment No. 31 and CESCR, General Comment No. 3 as great examples of the activity of specification of States parties obligaitons.
69J. McAdam, ‘Interpretation’, in A. Zimmermann, ‘The 1951 Convention’, p. 78. 70Art. 35 Refugee Convention, stating the obligation to co-operate with the UNHCR. 71See J. McAdam, ‘Interpretation’, in A. Zimmermann, ‘The 1951 Convention’, p. 79 72Idem.
73G. Goodwin-Gill, Hélène Lambert, ‘The Limits of Transnational Law – Refugee Law, Policy Harmonization and Judicial Dialogue in the European Union’, Cambridge University Press, 2010, p. 207. See also art. 34 VCLT.
more precisely by means of the traditional rules of interpretation as contained in the VCLT themselves.
It may seem paradoxical, as the maintenance of traditional rules of interpretation in international refugee law has just been criticized, but it would be incomplete to conclude without emphasizing that those rules offer a “bridge” to strengthen the interpretation of the 1951 Convention in a way which is supported by human rights considerations.
Article 31(2)(c) VCLT75 is the relevant disposition as this regard. International human rights
instruments contain indeed such relevant rules of international law applicable in the relations between the parties, providing that the parties concerned are also parties to the human rights instruments considered.
Moreover, article 5 of the Refugee Convention76 offers an important instrument aimed at
safeguarding more generous practices (assumed on a voluntary basis) when the Convention was drafted: in this sense, the Convention’s provisions are deemed to be considered in terms of ‘minimum rights’ Moreover, “article 5 is evidence of the 1951 convention’s awareness of an ongoing evolutionary process of international differentiation of refugee and asylum law, and of the fundamental decision taken by the contracting parties not to block this process”.77 It is therefore
deemed to be meant to equally apply to future more favorable practices with a biding character.78
If art. 5 is seen in this way, then art. 30(2) VCLT79would support this interpretation.
The problem of article 5 is that it does not resolve the issue of subsequent treaties specifically: on this basis it has been said that it is not “entirely unambiguous”80: here is when art. 30 (3)81and (4)82
VCLT come into play, as offering useful guidance; an application of these two paragraphs, coupled with the obligation of good faith83, requires that “where an earlier treaty outlines particular standards
of treatment that are incompatible with a subsequent treaty, the latter prevails […]Conversely, where the earlier treaty offers a higher standard for a specifically-defined group of individuals, it would
752. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes […](c) any relevant rules of international law applicable in the relations between the parties.
76RIGHTS GRANTED APART FROM THIS CONVENTION – Nothing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from this Convention.
77A. Skordas, ‘Article 5 1951 Convention’, in A. Zimmermann, ‘The 1951 Convention’, p. 673. 78See A. Edwards, ‘Human Rights, Refugees, and the Right ‘To Enjoy’ Asylum’, p. 305.
79When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.
80A. Edwards, ‘Human Rights, Refugees, and the Right ‘To Enjoy’ Asylum’, p. 306.
81 When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty
82When the parties to the later treaty do not include all the parties to the earlier one: (a) As between States parties to both treaties the same rule applies as in paragraph 3; (o) As between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations.
83International Law Commission’s Commentary on the Vienna Convention on the Law of Treaties, Yearbook of the International Law Commission, vol. II, 1966 (XVIII session), at 219
remain valid as representing an exception to a later treaty, unless otherwise provided for in the treaty itself”.84
To this extent, “courts charged with interpretation of the Refugee Convention have increasingly recognized that particular assistance is likely to be gleaned by seeking to locate refugee law principles within the broader complex of general human rights obligations”.85
To conclude, international human rights law has proved, also under this third point of view, its usefulness in enhancing the original protection as envisaged by the drafters of the Refugee Convention.
84A. Edwards, ‘Human Rights, Refugees, and the Right ‘To Enjoy’ Asylum’, p. 307. 85J. Hathaway, ‘The Rights of Refugees under International Law’, p. 49.
2 - INTERNATIONAL HUMAN RIGHTS LAW SUPERSEDING INTERNATIONAL
REFUGEE LAW - SPECIFIC ENTITLEMENTS
While so far we have seen some examples of how international human rights law has proved more effective for the protection refugees and asylum seekers, enhancing the original safeguard established by the 1951 Convention as regards basic features and concepts of international law the following chapters will point out that a similar process has been carried out also concerning more refugee-specific notions. The focus will be circumscribed to three basic conceptions: the principle of
non-refoulement; the notion of persecution; and finally, the right to family life.
2.1 - The principle of non-refoulement in international refugee law and in international
human rights law
The concept of non-refoulement is relatively recent in international law86, and in its modern sense
(protection according to the sovereign of those who face persecution or danger) may be traced back to the English Alien’s Act (1905)87, albeit on a national level.
For the international practice starting to accept the notion we had to wait until the end of the First World War, and only in 1933 did an international treaty provide for such obligation.88
The 1951 Geneva Convention states the principle in article 3389. It is interesting to notice that “be
that as it may, the concept of ‘refoulement’ now refers, in public international law, to the return of an individual to a territory where there is a risk of ill treatment. In the context of refugee protection,
non-86
87Section 1, “For the purposes of this section an immigrant shall be considered an undesirable immigrant if […] but, in the case of an immigrant who proves that he is seeking admission to this country solely to avoid persecution or punishment on religious or political grounds or for an offence of a political character, or persecution, involving danger or imprisonment or danger to life or limb, on account of religious belief, leave to land shall not be refused […]”.
88Art. 3 1933 Convention relating to the International Status of Refugees, nonetheless not highly participated and subject to several reservations and declarations. See G. Goodwin-Gill, J. McAdam, ‘The Refugee in International Law’ p. 202.
891. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
refoulement concerns the expulsion of a refugee or asylum seeker to a State where life or freedom
would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion. The terms echo the criteria for determination of refugee status that are set out in article 1 of the Refugee Convention”.90
This statement point out that the concept of non-refoulment as it is intended now does not exactly coincides with the same concept as elaborated by the Refugee Convention. More precisely, the concept is now broader than the one defined in art. 33 of the Convention, which is the most authoritative definition of the notion offered by international refugee law.
Therefore, from the concept as intended in 1951, there has been as enlargement of the principle, which now generally entail an obligation of the State not to return an individual who not only faces persecution, but ill-treatment in general.
The aim of this paragraph is therefore the one to point out how international human rights law as developed from the second half of the last century has informed one of the very basic and most fundamental concepts traditionally belonging to the law of refugees, extending its scope to broader categories of individuals and larger ranges of threats.91
It is fundamental to understand what the legal basis for the principle of non-refoulement in human rights law has been: essentially, most of the human rights conventions, in contrast with the Refugee Convention, do not state expressly such obligation. It is therefore very interesting to acknowledge that an expansion of the principle has been carried out by bodies dealing with treaties not even expressly providing for such a concept!
However, considering that international human rights law is not exception to the fundamental principle of sovereignty, with its corollary according to which no State may be bound by obligations it has not given its consent to92, the respect of the principle of non-refoulement must be connected to
some provision contained in such conventions: the treaty bodies have been consistent is finding such legal basis in the articles concerning the prohibition on torture, inhuman or degrading treatment.93
The first cases in which the positive obligation of States to “refrain from returning a person at risk of ill-treatment in violation of the prohibition are cases involving death penalty.94The first statement
in such direction may be traced back to 1973.95
90William A. Schabas, Non-Refoulement, Background Paper for the technical workshop on Human Rights and International Cooperation in Counter-Terrorism, Liechtenstein, 15-17 November 2006, p. 2.
91Ibid. p. 4.
92After all, States need to consent to be bound by specific human rights Conventions, as it happens with all international treaties in general.
93The relevant articles are therefore, in particular, art. 3 ECHR, art. 5(2) ACHR, art. 7 ICCPR, from which the obligation to non-refoulement, with that enlargement both in personal and material scope that we have
mentioned, has been derived respectively by the ECtHR, IACtHR, and HRC. 94D. Moeckli, S. Shah, S. Sivakumaran, ‘International Human Rights Law’, p. 219. 95Amekrane v UK, European Commission of Human Rights.
In general, the basic statement, consistent in such series of cases96, is that “the decision by a
Contracting State to extradite a fugitive may give rise to an issue under Article 3 (art. 3), and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country”.97
It appears therefore clear that as a result the protection against refoulement (widely interpreted as including all cases of expulsion or extradition) offered by international human rights instruments, as interpreted by the respective treaty bodies, extends well beyond the cases of persecution based on race, religion, nationality, membership of a particular social group or political opinion.
But for our purposes, what we should consider more closely is the exception to the principle contained in art. 33(2) Refugee Convention, according to which a refugee constituting a danger to the community of the host country.98 This precludes the absolute character of the protection from refoulement offered by international refugee law.
Moreover, according to art. 33(1) the principle of non-refoulement applies to “refugees”. It logically follows that if an individual, falling under the definition of refugee99but excluded from the
scope of the Convention according to one of three circumstances provided for by art. 1(F)100, is
excluded from the scope of application of art. 33(1), and therefore the obligation of non-refoulement does not apply in case of crimes against peace, war crimes, crimes against humanity, serious non-political crimes, acts contrary to the purposes and principles of the UN.
Is this non-absoluteness of the principle shared by international human rights law?
Interestingly, “the prohibition provided by Article 3 (art. 3) against ill-treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 (art. 3) if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion […] In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The
96Amekrane v UK, Soering v UK, Ng v Canada, Judge v Canada. This topic has been greatly considered by the scholarship. For some leading manuals, for more comprehensive information, see, for instance, Grabenwarter, European Convention on human Rights – Commentary, Textbook course, etc…..
97ECtHR, Soering v UK, (Application no. 14038/88), decision of 07 July 1989, See also par. 91. Grabenwarter, European convention on human Rights – Commentary, p. 46.
98“The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country 99Art. 1(A)(2).
100F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
protection afforded by Article 3 (art. 3) is thus wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees”.101
And again, “article 3, which prohibits in absolute terms torture and inhuman or degrading treatment or punishment, enshrines one of the fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15, even in the event of a public emergency threatening the life of the nation.102 As the prohibition of torture and of
inhuman or degrading treatment or punishment is absolute, irrespective of the victim’s conduct the nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3”.103
The question is therefore easily answered: under the European human rights framework of protection, no exception is permissible; at least in the European continent, international human rights law has superseded international refugee law also under this point of view.
The ECtHR’s case law concerning the obligation of non-refoulement is substantial: the first judgment regarding asylum seekers delivered by the Court is dated 20 march 1991104; according to
Bossuyt, in the following 18 years, more than 60 judgments105have been delivered on the topic, the
vast majority of them after the landmark judgment of Mamatkulov and Askarow v Turkey106, and
therefore very recently. Interestingly, according to the number of violation found, “The increased quantity of judgments has been accompainedby a less deferential attitude to defending governments
andby a more lenient attitude to the interests of asylum seekers”.107
Does such an extension apply to other systems of international human rights protection? To the purpose, “the absolute nature of the prohibition to remove someone to a risk of torture has also been affirmed by the UN Human Rights Committee, established under the International Covenant on Civil and Political Rights (ICCPR)”.108 Reference may be made both by the text of the Covenant – with
101ECtHR, Chahal v UK, par. 80.
102See Ireland v. the United Kingdom, judgment of 8 January 1978, Series A no. 25, § 163; Chahal, cited above, § 79; Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V; Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 59, ECHR 2001-XI; and Shamayev and Others v. Georgia and Russia, no. 36378/02, § 335, ECHR 2005-III
103Saadi v Italy. Par. 127.
104Cruz Varaz and others v Sweden.
105See, as instances, Amekrane v UK, Soering v Uk, Vilvarajah v UK, Amuur v france, Chahal v UK, Ahmed v Austria, HLR v France, for early example. More recently, landmark cases have been, for instance, mamatkulow and askarov v turkey, MSS v Belgium and Greece, D v Uk, N v UK, Paposhvili v Belgium, Saadi v UK, tarakel v Switzerland,
106Mamatkulov and Askarov v turkey, 2005.
107 Bossuyt, JUDGES ON THIN ICE: THE EUROPEAN COURT OF HUMAN RIGHTS AND THE TREATMENT OF ASYLUM SEEKERS, p. 4.
108Maria Teresa Gil Bazo, ‘Beyond Non-Refoulement; Status and International Human Rights Law’, July 30, 2015, at http://www.asylumlawdatabase.eu.
reference, in particular, to article 4 -109and to case law – as this regard, interesting and exemplary are
those cases of extradition, in which the rapid above mentioned enlargement of the obligation of
non-refoulement (intended in its broad sense, as including all cases of return of non-nationals) is easily
noticeable.
That forcible return of “a person […] such that as a result there is a real risk that his or her rights under the Covenant will be violated in another jurisdiction, the State party itselfmay be in violation
of the Covenant” was long established.110
Interestingly, in a relatively very short period of time, the obligation shifted, according to the jurisprudence of the HRC, from a possibility to extradite, provided that “the decision to extradite without assurances was not taken arbitrarily or summarily arbitrarily or summarily”111, even in case of
possibility of death penalty or ill-treatment in general, to the possibility to extradite only when assurances of not execution and full respect of the Covenant, by the receiving State, had been granted, with consequent violation in case the decision had been taken “without ensuring that the death penalty [or ill-treatment in general] would not be carried out”.112
For our purposes, this is relevant to the extent that ‘the CCPR applied these principles not only to cases of extradition and rendition, but also to cases of deportation of foreigners without lawful stay and to those concerning forcible return of rejected asylum seekers”.113
Moreover, interesting documents confirm the absolute character of such prohibition: “the article 2 obligation requiring that States Parties respect and ensure the Covenant rights for all persons in their territory and all persons under their control entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6114 and 7115 of the
Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed”.116
And again, extremely clearly, “the State party should recognize the absolute nature of the prohibition of torture, cruel, inhuman or degrading treatment, which in no circumstances can be derogated from.
109Art. 4: 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
110Kindler v Canada, par. 13.1. GT v Canada, par. 8.2. 111Ng, par 15.6, Cox, par. 16.5.
112Judge, par. 10.6.
113Kälin, Caroni, Heim, ‘Article 33, para 1 1951 Convention’, in A. Zimmermann, ‘The 1951 Convention’, p. 1351. See, in particular, A.R.J. v Australia, par. 6.14, Gt v Australia, par. 8.6, C v Australia, par. 8.5.
114Protecting the Right to life.
115On the Prohibition on Torture and Ill-Treatment. 116HCR, General Comment No. 31, par. 12.
Such treatments can never be justified on the basis of a balance to be found between society’s interest and the individual’s rights under article 7 of the Covenant. No person, without any exception, even those suspected of presenting a danger to national security or the safety of any person, and even during a state of emergency, may be deported to a country where he/she runs the risk of being subjected to torture or cruel, inhuman or degrading treatment”.117
With no need to further analyze the matter, there are sufficient evidences that under international human rights law (and not only under regional frameworks), the principle has been extended to the benefit of persons who are not refugees or asylum seeker, and to refugees as well (prohibiting expulsion made available following the terms of art. 33(2) and art. 1(F) Refugee Convention).
In other words, “the Refugee Convention permits lawful refoulement in specific circumstances, whereas human rights non-refoulement to certain risks […] is absolute. The latter has rendered the exceptions [of the former] largely irrelevant”.118
Moreover, while non-refoulement for the purposes of traditional refugee law requires persecution based on the five grounds of the refugee definition, the extension of the scope of the concept operated by international human rights law is apparent, besides beneficiaries, also to threats not coinciding with persecution. The concept has shifted form protection from return in case of persecution, to protection from return in case of violation of human rights.
117HRC, Concluding observations of the Human Rights Committee. Canada, UN Doc. CCPR/C/CAN/CO/5, 20 Apr. 2006, para. 15. See also, for a commentary, Zimmermann, p. 1351.
