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International legal standards for the protection from refoulement: A legal analysis of the prohibitions on refoulement contained in the Refugee Convention, the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the

Convention against Torture

Wouters, C.W.

Citation

Wouters, C. W. (2009, April 24). International legal standards for the protection from refoulement: A legal analysis of the prohibitions on refoulement contained in the Refugee Convention, the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Convention against Torture. Intersentia, Antwerpen.

Retrieved from https://hdl.handle.net/1887/13756

Version: Not Applicable (or Unknown)

License: Licence agreement concerning inclusion of doctoral thesis in the Institutional Repository of the University of Leiden

Downloaded from: https://hdl.handle.net/1887/13756

Note: To cite this publication please use the final published version (if applicable).

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International Legal Standards for the Protection from Refoulement

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Cover: photo by Ad van Denderen (2002 Sangatte, France) Lay-out: Anne-Marie Krens – Tekstbeeld – Oegstgeest Text editing: Kate Elliott

© 2009 C.W. Wouters

A commercial edition of this dissertation will be published by Intersentia under ISBN 978-90-5095-876-9

This book is associated to the series of the E.M. Meijers Institute of Legal Studies, Leiden Law School, Leiden University, the Netherlands. It was prepared and defended at the Univerisity as a PhD thesis

No part of this book may be reproduced in any form, by print, photoprint, microfilm or any other means, without written permission from the publisher.

Instituut voor Immigratierecht

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International Legal Standards for the Protection from Refoulement

A legal analysis of the prohibitions on refoulement contained in the Refugee Convention, the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Convention against Torture

PROEFSCHRIFT

ter verkrijging van

de graad van Doctor aan de Universiteit Leiden,

op gezag van Rector Magnificus prof. mr. P.F. van der Heijden, volgens besluit van het College voor Promoties

te verdedigen op vrijdag 24 april 2009 klokke 11.15 uur

door

Cornelis Wolfram Wouters

geboren te ’s-Hertogenbosch in 1970

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Promotor: Prof. mr. P. Boeles

Prof. mr. drs. B.P. Vermeulen (Vrije Universiteit Amsterdam) Overige leden: Prof. mr. T. Barkhuysen

Prof. dr. R.A. Lawson

Prof. mr. T.P. Spijkerboer (Vrije Universiteit Amsterdam)

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‘We believe that human rights transcend boundaries and must prevail over state sovereignty’

José Ramos-Horta

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Preface

The idea of writing this book was born sometime in 1999 just before Blanche decided actually to join the UNHCR and the two of us started living in Bangkok. It was born during a car journey undertaken by me and Prof. Pieter Boeles, the driver, on our way back to Amsterdam from a meeting in Utrecht. It was agreed that I would conduct comprehensive research into the international legal responsibilities of States for the protection of individuals from refoulement. Prof. Boeles and I felt this to be an important topic which could be investigated from just about anywhere in the world.

It would not matter where the UNHCR sent us in the years to come; I could do my research. A team was formed comprising of Prof. Pieter Boeles, Prof. Ben Vermeulen and René Bruin. Over the years I regularly travelled back to the Netherlands to meet with this distinguished trio in Ben’s office at the Free University in Amsterdam. Since the beginning of 2000 I have taken my work to five different countries before finally finding the time to complete it.

Ever since I graduated from Leiden University I have seen asylum seekers and refugees in a variety of countries and settings, ranging from new arrivals in the Aanmeldcentrum at Schiphol airport to Bhutanese refugees residing in camps in Eastern Nepal. All these people had been displaced and had their reasons for seeking protection outside their own country. No matter where they were or why they fled, they were vulnerable and insecure; in dire need of knowing and understanding their rights. The reasons for writing this book are obvious – at least to me. As Stephen Legomsky once wrote, we do not live in a utopian world where there are no refugees, no armed conflicts and no human rights abuses; we do not even live in a modified utopian world where refugees are welcomed with open arms. Unfortunately, we live in a world that

‘consists of sovereign States that jealously guard their territories, their wealth, and their economic composition’ (Legomsky 2000, p. 620). It is therefore important to analyse and clearly state the various legal obligations States have vis-à-vis individuals who are seeking and are in need of international asylum protection.

This book would not have been possible without the support of many. First and foremost, I thank Blanche for opening the world to me in so many different ways, loving me and allowing me to do my research for all these years. I have to thank my colleagues at the Institute of Immigration Law, Gerrie, Suzanne, Maarten, Marcelle, Brigitte, Ciara, Elisabeth and the numerous student assistants, for their continuous support and interest in my life and work. It never mattered how long I had been away from the Institute. I always felt very welcome when I returned to Leiden. In particular, I want to thank Maarten and Marcelle for providing me with crucial information and insights, for reading various drafts and letting me interrupt them on numerous occa-

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VIII Preface

sions and discuss with them a long list of arguments that I had thought of; some valuable and others ridiculous.

I am also grateful to Sam and Amy’s nannies: Manana in Tbilisi, Soma in Colom- bo and Irene in Brussels. They took very good care of my daughters and kept them away from my ‘office room’, as Sam would call it, when I was working. I am grateful to my friends, colleagues and former students in Thailand who kept bugging me about this research. I am grateful too to those who have given me shelter during my stays in the Netherlands, in particular Wolf and Maria, Bas and Nico, and Petra and Willem, who gave me the keys to their home and always welcomed me with discussions, tea, wine and calvados (or spirits of a similar kind).

Putting this book together and discovering the reality of the law would have been impossible without the experience I gained at the various organisations I have worked for since I graduated: the refugee department of Amnesty International in Amsterdam, FORUM, the Dutch Institute for Multicultural Development in the Netherlands, the Dutch Refugee Council, the editorial board of Jurisprudentie Vreemdelingenrecht (JV), the Office of Human Rights Studies and Social Development at Mahidol Univer- sity in Thailand, and finally the Centre on Housing Rights and Evictions (COHRE), which entrusted me with setting up its office in Sri Lanka and doing interesting work on the issue of housing, land and property restitution for refugees and displaced persons in Asia.

Finally, I like to thank the one person who gave me the passion for asylum and refugee law; who shared his knowledge and experience, was my teacher and who kept guiding me until the last letter of this book was set in print. I thank René Bruin for all those years of true friendship.

Kees Wouters

Bangkok / Tbilisi / Colombo / Brussels / Phnom Penh / Amsterdam / Leiden, 2000-2009

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Table of Contents

List of Abbreviations and Acronyms XIX

1 – Introduction 1

1.1 Introduction to the study 1

1.1.1 Objective of the study 2

1.1.2 Research questions 3

1.1.3 Methodology of and sources for the study 4

1.1.4 Scope and limitations of the study 5

1.1.5 Structure of the book 5

1.2 Relevant general principles of human rights treaties 6

1.2.1 The interpretation of human rights treaties 7

1.2.1.1 General rules of treaty interpretation 7

1.2.1.2 Interpretation of human rights treaties 11

1.2.1.3 The role of international monitoring or supervisory bodies 13 1.2.2 Individual human rights and the obligations of States 14 1.2.3 The personal, territorial and extra-territorial scope of human rights

treaties 16

1.2.3.1 Personal scope 16

1.2.3.2 Territorial scope 16

1.2.3.3 Extra-territorial scope 18

1.2.3.3a Effective control over foreign territory 19

1.2.3.3b Attribution of conduct 20

1.2.4 Reservations and declarations made to international human rights treaty

provisions 22

1.3 General remarks on the prohibition on refoulement 23

1.3.1 The concept of asylum 23

1.3.2 The concept of refoulement 25

1.3.2.1 The harm from which a person is protected 26

1.3.2.2 The element of risk 26

1.3.2.3 National protection 26

1.3.2.3a Internal protection alternative 26

1.3.2.3b Diplomatic assurances to guarantee safety 26 1.3.2.4 The absolute or non-absolute character of the prohibition on

refoulement 28

1.3.2.5 The character and content of the States’ obligations deriving

from the prohibition on refoulement 29

1.3.2.6 Extradition and a conflict of treaty obligations 30

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X Table of Contents

2 – 1951 Convention relating to the Status of Refugees and the 1967

Protocol relating to the Status of Refugees 33

2.1 Introduction 33

2.1.1 Prohibition on refoulement under the Refugee Convention 33

2.1.2 A brief introduction to the Refugee Convention 34

2.1.2.1 Object and purpose 35

2.1.2.2 Content and structure 36

2.1.2.3 Reservations and declarations 37

2.1.3 International sources for the interpretation of the Refugee Convention 37 2.1.3.1 The United Nations High Commissioner for Refugees (UNHCR) 39

2.1.3.1a UNHCR Documentation 42

2.1.3.2 The Executive Committee of the High Commissioner’s

Programme 44

2.2 Personal and (extra-)territorial scope of Article 33 of the Refugee Convention 46

2.2.1 Personal scope 46

2.2.2 The territorial and extra-territorial scope of Article 33(1) of the Refugee

Convention 48

2.3 The content of the prohibition on refoulement under Article 33 of the Refugee

Convention 56

2.3.1 The harm from which a person is protected: being persecuted for reasons of race, religion, nationality, membership of a particular social

group or political opinion 57

2.3.1.1 Persecution 57

2.3.1.1a Persecution as a crime contained in the ICC Statute and

ICTY Jurisprudence 67

2.3.1.1b Prosecution and punishment amounting to persecution 68

2.3.1.2 Persecution reasons 71

2.3.1.2a Race 72

2.3.1.2b Religion 72

2.3.1.2c Nationality 72

2.3.1.2d Membership of a particular social group 72

2.3.1.2e Political opinion 75

2.3.1.2f Perceived or attributed persecution grounds 75

2.3.1.3 Being persecuted for reasons of 76

2.3.1.4 Actors of persecution 80

2.3.2 The element of risk 82

2.3.2.1 Defining the risk: a well-founded fear 83

2.3.2.1a Objectivity and prospectivity 83

2.3.2.1b Individualisation, mass influx and ‘group persecution’ 87 2.3.2.1c Required facts and circumstances to meet the necessary level

of risk 89

2.3.2.1d Refugees sur place 89

2.3.2.2 Standard and burden of proof 90

2.3.2.2a Issues of credibility 90

2.3.2.2b Issues of evidence 93

2.3.2.2c Burden of proof 95

2.3.2.2d Special considerations for children and women 98

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Table of Contents XI

2.3.2.3 At what point in time must the risk be assessed? 99 2.3.2.4 Protection from the country of origin (national protection) 99

2.3.2.4a Internal protection alternative 104

2.3.2.4b Diplomatic assurances to guarantee safety 110 2.3.3 Exceptions to the right to be protected from refoulement 113

2.3.3.1 Danger to the country of refuge or its community

(Article 33(2) of the Refugee Convention) 113

2.3.3.1a Danger to the national security 115

2.3.3.1b Danger to the community 116

2.3.3.2 Exclusion from refugee protection: Article 1D and E of the

Refugee Convention 118

2.3.3.2a Article 1D of the Refugee Convention 118

2.3.3.2b Article 1E of the Refugee Convention 120

2.3.3.3 Exclusion from refugee status: Article 1F of the Refugee

Convention 120

2.3.3.3a Article 1F(a): crimes against peace, war crimes and crimes

against humanity 122

2.3.3.3b Article 1F(b): Serious non-political crimes 124 2.3.3.3c Article 1F(c): acts contrary to the purposes and principles of

the United Nations 126

2.3.3.3d Individual responsibility for excludable acts and the standard

and burden of proof 126

2.3.3.3e Considerations of proportionality 131

2.3.3.4 Provisional measures under Article 9 of the Refugee

Convention 132

2.4 The character and contents of State obligations deriving from the prohibition on refoulement under Article 33 of the Refugee Convention 133

2.4.1 Negative obligations 133

2.4.1.1 Prohibition on removal 133

2.4.1.1a Safe countries of origin 135

2.4.1.2 Prohibition on extradition 136

2.4.1.3 Prohibition on rejection at the frontier and beyond 137 2.4.1.4 Prohibition on indirect refoulement and the concept of safe

third countries 140

2.4.1.4a Safe third countries 141

2.4.1.4b Agreements to allocate responsibility and readmission

agreements 145

2.4.2 Positive obligations 147

2.4.2.1 Obligation to admit (a right to enter and remain) 148 2.4.2.1a Obligations on refugees at sea: interception and rescue at sea 151 2.4.2.2 Temporary protection in situations of mass influx 156

2.4.2.3 Obligation to grant a residence permit 158

2.4.2.4 Substantive rights granted to refugees 160

2.4.2.5 Obligations in the context of voluntary repatriation 163

2.4.2.6 Obligations after removal 164

2.4.2.7 Procedural safeguards 164

2.4.2.7a The initial determination procedure 164

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XII Table of Contents

2.4.2.7b Accelerated procedures 172

2.4.2.7c Appeal procedures 173

2.4.2.7d Suspensive effective of proceedings to determine refugee status 175 2.4.2.7e Additional procedural safeguards for the expulsion of lawful

refugees (Article 32 of the Refugee Convention) 176

2.5 Conclusion 178

3 – 1950 European Convention for the Protection of Human Rights and

Fundamental Freedoms 187

3.1 Introduction 187

3.1.1 Prohibition(s) on refoulement under the European Convention on

Human Rights 187

3.1.2 Brief introduction to the European Convention on Human Rights 190

3.1.2.1 Object and purpose 190

3.1.2.2 Content and structure 191

3.1.2.3 Reservations and declarations 192

3.1.3 International sources for interpretation of the European Convention on

Human Rights 193

3.1.3.1 The role of the European Court of Human Rights and the

status of its decisions 193

3.1.3.1a Individual applications 194

3.1.3.1b Inter-State cases 196

3.1.3.1c Advisory opinions 196

3.1.3.2 The role of the Committee of Ministers of the Council of

Europe 196

3.1.3.3 The role of the Secretary General of the Council of Europe 198 3.1.3.4 The role of the former European Commission of Human Rights 198 3.1.4 Rules of interpretation of the European Convention on Human Rights 199 3.2 Personal and (extra-)territorial scope of the European Convention on Human

Rights, in particular with respect to the prohibition on refoulement 202

3.2.1 Personal scope 202

3.2.2 Territorial and extra-territorial scope of the European Convention on

Human Rights 203

3.2.2.1 Territorial scope 203

3.2.2.2 Extra-territorial scope 205

3.2.2.2a Effective overall control over foreign territory 206 3.2.2.2b Attribution of conduct to the State and control over a person

and his rights 208

3.2.3 The relevance of the territorial and extra-territorial scope of the

Convention for protection from refoulement 217

3.3 The content of the prohibition on refoulement under Article 3 of the European

Convention on Human Rights 221

3.3.1 The harm from which a person is protected: torture and inhuman or

degrading treatment or punishment 221

3.3.1.1 Torture as defined outside the context of refoulement 222

3.3.1.1a Perpetrators of torture 225

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Table of Contents XIII

3.3.1.2 Inhuman and degrading treatment or punishment as defined

outside the context of refoulement 225

3.3.1.2a Perpetrators of inhuman and degrading treatment or

punishment 237

3.3.1.3 Proscribed ill-treatment in the context of refoulement 238

3.3.1.3a Defining the ill-treatment 238

3.3.1.3b State versus non-State perpetrators of ill-treatment 244 3.3.1.3c Situations in the country of origin amounting to ill-treatment 244

3.3.2 The element of risk 246

3.3.2.1 Defining the risk: a real personal foreseeable risk 247

3.3.2.1a Prospectivity and objectivity 247

3.3.2.1b Individualisation: an element of comparison? 248

3.3.2.1c Membership of a particular group 252

3.3.2.1d Facts and circumstances required to meet the necessary level

of risk 255

3.3.2.1e Risk sur place 265

3.3.2.2 The standard and burden of proof 266

3.3.2.2a Issues of credibility and plausibility 266

3.3.2.2b Issues of evidence (in support of the claim) 270

3.3.2.2c Burden of proof 274

3.3.2.3 Cases in which a different standard of risk applies 276 3.3.2.4 At what point in time must the risk be assessed? 279 3.3.2.5 The role of the European Court of Human Rights in the risk

assessment 283

3.3.2.6 Protection from the country of origin (national protection) 287

3.3.2.6a Internal protection alternative 288

3.3.2.6b Diplomatic assurances to guarantee safety 293 3.3.2.6c The country of origin is a State party to one or more human

rights treaties 304

3.3.3 The absolute character of the prohibition on refoulement 307 3.4 The character and contents of State obligations deriving from the prohibition on

refoulement under Article 3 of the European Convention on Human Rights 315

3.4.1 Negative obligations 317

3.4.1.1 Prohibition on removal 317

3.4.1.2 Prohibition on extradition 319

3.4.1.3 Prohibition on indirect refoulement 320

3.4.1.4 Prohibition on rejection at the frontier and beyond (including

the open sea) 323

3.4.2 Positive obligations 324

3.4.2.1 Obligation to admit (a right to asylum, to enter and to

remain) 324

3.4.2.2 Obligations after removal 327

3.4.2.3 Obligation to install procedural safeguards 330

3.4.2.3a The initial determination procedure 330

3.4.2.3b Appeal procedures: effective legal remedies offered by

Article 3 in conjunction with Article 13 331

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XIV Table of Contents

3.4.2.3c Additional procedural safeguards for the expulsion of

lawfully resident aliens (Article 1 Protocol 7 ECHR) 342

3.4.2.3d Applicability of Article 6(1) 344

3.5 Other prohibitions on refoulement under the European Convention on Human

Rights 345

3.5.1 Non-derogable provisions, in particular Articles 2, 1 of Protocol No. 6

and 1 of Protocol No. 13 345

3.5.2 Article 6, the right to a fair trial 348

3.5.3 Other provisions, in particular Articles 5, 8 and 9 351

3.6 Conclusion 353

4 – 1966 International Covenant on Civil and Political Rights 359

4.1 Introduction 359

4.1.1 Prohibition(s) on refoulement under the ICCPR 359

4.1.2 Brief introduction to the ICCPR 361

4.1.2.1 Object and purpose 361

4.1.2.2 Content and structure 362

4.1.2.3 Reservations and declarations 363

4.1.3 International sources for interpretation of the ICCPR 364

4.1.3.1 The Human Rights Committee 364

4.1.3.1a The monitoring tools of the Human Rights Committee 364

4.1.3.1b The status of the Committee’s views 365

4.1.4 Rules of interpretation of the ICCPR 367

4.2 Personal and (extra-)territorial scope of the ICCPR, in particular with respect to

the prohibition on refoulement 369

4.2.1 Personal scope 369

4.2.2 Territorial and extra-territorial scope of the ICCPR 370

4.2.2.1 Territorial scope 372

4.2.2.2 Extra-territorial scope 372

4.2.3 The relevance of the territorial and extra-territorial scope of the ICCPR

for the prohibition on refoulement 375

4.3 The content of the prohibition on refoulement under Articles 6 and 7 of the

ICCPR 377

4.3.1 The harm from which a person is protected 377

4.3.1.1 Death penalty and the death row phenomenon 377

4.3.1.1a Death penalty 377

4.3.1.1b Death row phenomenon 379

4.3.1.2 Arbitrary deprivation of life 380

4.3.1.3 Torture and other cruel, inhuman or degrading treatment or

punishment 381

4.3.1.3a Torture under the ICCPR and CAT 388

4.3.1.4 Harm from which a person is protected in the context of

refoulement 389

4.3.1.4a Defining the harm in the context of refoulement 389 4.3.1.4b State versus non-State perpetrators of the harm 391

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Table of Contents XV

4.3.2 The element of risk 391

4.3.2.1 Defining and determining the risk 391

4.3.2.2 Standard and burden of proof 395

4.3.2.2a Burden of proof 396

4.3.2.3 At what point in time must the risk be assessed? 397 4.3.2.4 The role of the Human Rights Committee in the risk

assessment 397

4.3.2.5 Protection from the country of origin (national protection) 398

4.3.2.5a Internal protection alternative 398

4.3.2.5b Diplomatic assurances to guarantee safety 399 4.3.3 The absolute character of the prohibition on refoulement 402 4.4 The character and contents of States’ obligations deriving from the prohibition

on refoulement under Articles 6 and 7 of the ICCPR 404

4.4.1 Negative obligations 405

4.4.1.1 Prohibition on removal 405

4.4.1.2 Prohibition on extradition 406

4.4.1.3 Prohibition on indirect refoulement 407

4.4.1.4 Prohibition on rejection at the frontier and beyond 407

4.4.2 Positive obligations 408

4.4.2.1 Obligation to admit (a right to enter and remain) 408

4.4.2.2 Obligations after removal 409

4.4.2.3 Obligations to install procedural safeguards 411

4.4.2.3a The initial determination procedure 411

4.4.2.3b Appeal procedures: effective legal remedies offered by

Article 2(3) of the ICCPR 412

4.4.2.3c Additional procedural safeguards for the expulsion of lawful

aliens (Article 13 ICCPR) 414

4.4.2.3d Applicability of Article 14(1) ICCPR 417

4.5 Other prohibitions on refoulement under the ICCPR 419

4.6 Conclusion 421

5 – 1984 Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment 425

5.1 Introduction 425

5.1.1 Prohibition(s) on refoulement under the Convention against Torture 425 5.1.2 Brief introduction of the Convention against Torture 426

5.1.2.1 Object and purpose 426

5.1.2.2 Content and structure 427

5.1.2.3 Reservations and declarations 427

5.1.3 International sources for interpretation of the Convention against Torture 429

5.1.3.1 The Committee against Torture 429

5.1.3.1a The monitoring tools of the Committee against Torture 429

5.1.3.1b The status of the Committee’s views 431

5.1.3.1c Individual applications 432

5.1.4 Rules of interpretation of the Convention against Torture 433

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XVI Table of Contents

5.2 Personal and (extra-)territorial scope of the Convention against Torture, in

particular with respect to the prohibition on refoulement contained in Article 3 434

5.2.1 Personal scope 434

5.2.2 Territorial and extra-territorial scope of Article 3 of the Convention

against Torture 435

5.3 The content of the prohibition on refoulement under Article 3 of the Convention

against Torture 438

5.3.1 The harm from which a person is protected: torture as defined in

Article 1 of the Convention against Torture 439

5.3.1.1 Acts which cause severe physical or mental pain or suffering 439

5.3.1.2 Intention 443

5.3.1.3 Purpose 444

5.3.1.4 Infliction, instigation, consent or acquiescence of a public

official 445

5.3.1.4a The absence of a State authority 449

5.3.1.5 Public officials or others acting in an official capacity 454 5.3.1.6 Exclusion of pain or suffering arising from lawful sanctions 455

5.3.1.7 Victims of torture 458

5.3.2 The element of risk 458

5.3.2.1 Defining the risk 459

5.3.2.1a Prospectivity and objectivity 459

5.3.2.1b Individualisation and membership of a particular group 461 5.3.2.1c Required facts and circumstances to meet the necessary level

of risk 462

5.3.2.1d Personal facts and circumstances 464

5.3.2.1e General human rights situation 469

5.3.2.1f Risk ‘sur place’ 472

5.3.2.1g Assessing the personal facts in light of the general situation 473

5.3.2.2 The standard and burden of proof 475

5.3.2.2a Issues of credibility and plausibility 475

5.3.2.2b Issues of evidence (in support of the claim) 480

5.3.2.2c Burden of proof 484

5.3.2.3 At what point in time must the risk be assessed? 487 5.3.2.4 The role of the Committee against Torture in the risk

assessment 490

5.3.2.5 Protection from the country of origin (national protection) 492

5.3.2.5a Internal protection alternative 493

5.3.2.5b Diplomatic assurances to guarantee safety 496 5.3.2.5c The country of origin is a State party to one or more human

rights treaties 500

5.3.3 The absolute character of the prohibition on refoulement 502 5.4 The character and contents of State obligations deriving from the prohibition on

refoulement under Article 3 of the Convention against Torture 505

5.4.1 Negative obligations 505

5.4.1.1 Prohibition on removal 505

5.4.1.2 Prohibition on extradition 506

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Table of Contents XVII

5.4.1.3 Prohibition on rejection at the frontier and beyond 507 5.4.1.4 Prohibition on indirect refoulement and the concept of safe

third countries 508

5.4.2 Positive obligations 510

5.4.2.1 Right to asylum, right to enter and right to remain 510

5.4.2.2 Obligations after removal 512

5.4.2.3 Obligation to install procedural safeguards 513

5.4.2.3a The initial determination procedure 513

5.4.2.3b Appeal procedures: effective legal remedies offered by Article 3 515

5.5 Article 16 of the Convention against Torture 518

5.6 Conclusion 520

6 – Prohibitions of refoulement in international law compared 525

6.1 Introduction 525

6.1.1 Prohibitions on refoulement as part of international human rights law 525 6.1.2 Supervising the implementation and enforcement of the prohibition on

refoulement 528

6.2 Personal and (extra-)territorial scope of the prohibition on refoulement 530

6.2.1 Personal scope 530

6.2.2 Territorial and extra-territorial scope of the prohibition on refoulement 531

6.3 The content of the prohibitions on refoulement 533

6.3.1 The harm from which a person is protected 533

6.3.1.1 Torture 534

6.3.1.2 Other cruel, inhuman or degrading treatment or punishment 536 6.3.1.3 Protection from being persecuted for reasons of race,

religion, nationality, membership of a particular social group or political opinion compared to other prohibitions on

refoulement 538

6.3.1.4 The actors of the harm or the source of the risk 540

6.3.2 The element of risk 542

6.3.2.1 Defining the risk 542

6.3.2.1a Prospectivity 543

6.3.2.1b Objectivity 544

6.3.2.1c Individualisation, singled out and indiscriminate violence 544 6.3.2.1d Membership of a particular group or group persecution 546 6.3.2.1e Required facts and circumstances to meet the necessary level

of risk 547

6.3.2.1f Risk ‘sur place’ 548

6.3.2.2 Standard and burden of proof 549

6.3.2.2a Issues of credibility 549

6.3.2.2b Issues of evidence 550

6.3.2.2c Burden of proof 551

6.3.2.3 Time of assessing the risk 552

6.3.2.4 Protection from the country of origin (national protection) 553

6.3.2.4a Internal protection alternative 556

6.3.2.4b Diplomatic assurances to guarantee safety 559

6.3.3 Absolute protection or exceptions 563

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XVIII Table of Contents

6.4 The character and content of States’ obligations deriving from the prohibitions

on refoulement 564

6.4.1 Negative obligations 565

6.4.1.1 Prohibition on removal 565

6.4.1.2 Prohibition on extradition 565

6.4.1.3 Prohibition on indirect refoulement 566

6.4.1.3a Safe third countries 567

6.4.1.4 Prohibition of rejection at the frontier and beyond 567

6.4.2 Positive obligations 569

6.4.2.1 Obligation to admit (a right to asylum, enter and remain) 569

6.4.2.2 Obligations after removal 570

6.4.2.3 Obligations to install procedural safeguards 571

6.4.2.3a The initial determination procedure 571

6.4.2.3b Appeal procedures 573

6.4.2.3c Right of due process 575

6.4.2.3d Procedural safeguards limited to lawfully present aliens 576

6.5 Overall concluding remarks 577

Samenvatting (Summary in Dutch) 579

Bibliography 591

Index 629

Curriculum Vitae 639

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List of Abbreviations and Acronyms

AI Amnesty International

AJIL American Journal of International Law

BYBIL British Yearbook of International Law

CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

CCPR see ICCPR

ComAT Committee against Torture

ComEDAW Committee on the Elimination of Discrimination against Women ComESCR Committee on Economic, Social and Cultural Rights

DRC Democratic Republic of Congo

EC European Community

ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms

EComHR European Commission of Human Rights

UN ECOSOC United Nations Economic Social Council

ECtHR European Court of Human Rights

ECRE European Council on Refugees and Exiles

EJIL European Journal of International Law

ETS European Treaty Series

EU European Union

EU Dublin Regulation Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national

EU Procedures Directive Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status

EU Qualification Directive Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted

EVRM see ECHR

EXCOM Executive Committee of the High Commissioner’s Programme

GAOR General Assembly Official Record

GYIL German Yearbook of International Law

HRC Human Rights Committee

HRQ Human Rights Quarterly

IARLJ International Association of Refugee Law Judges

ICC International Criminal Court

ICC Statute Rome Statute of the International Criminal Court ICCPR International Covenant on Civil and Political Rights

ICERD International Convention on the Elimination of All Forms of Racial Discrimination

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XX List of Abbreviations and Acronyms

ICESCR International Covenant on Economic, Social and Cultural Rights

ICJ International Court of Justice

ICLQ International and Comparative Law Quarterly

ICRC International Committee for the Red Cross

ICTY International Criminal Tribunal for the Former Yugoslavia

IDP Internally Displaced Person

IJRL International Journal of Refugee Law

ILC International Law Commission

JICJ Journal of International Criminal Justice

JV Jurisprudentie Vreemdelingenrecht

KDP Kurdistan Democratic Party

LTTE Liberation Tigers of Tamil Eelam

MoU Memorandum of Understanding

NAV Nieuwsbrief Asiel- en Vluchtelingenrecht

NCB Nederlands Centrum Buitenlanders

NILR Netherlands International Law Review

NJCM-Bulletin Nederlands Juristen Comité voor de Mensenrechten-Bulletin

OAU Organisation of African Unity

PKK Partiya Karkerên Kurdistan (Kurdistan Workers’

Party)

PUK Patriotic Union of Kurdistan

Refugee Convention Convention relating to the Status of Refugees Refugee Protocol Protocol relating to the Status of Refugees

Res. Resolution

UDHR Universal Declaration of Human Rights

UN GA United Nations General Assembly

UNESCO United Nations Educational, Scientific and Cultural Organisation UNHCR United Nations High Commissioner for Refugees

UNHCR Handbook UNHCR Handbook on Procedures and Criteria for Determining Refugee Status

UNRWA United Nations Relief and Works Agency for Palestine Refugees in the Near East

UNTS United Nations Treaty Series

UN SC United Nations Security Council

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1 Introduction

1.1 Introduction to the study

The prohibition of refoulement is the cornerstone of international refugee and asylum law. People who are at risk of persecution, torture, inhuman treatment, degrading treatment or any other human rights violation in their own country may wish to seek protection elsewhere. States may have the responsibility to provide such people with protection in accordance with a prohibition on refoulement. In the broadest and most general terms the prohibition on refoulement proscribes the forced removal of an individual to a country where he runs a risk of being subjected to human rights violations.1In international law the prohibition on refoulement has been developed in various legal instruments, on both a global and a regional level.

Initially, the prohibition on refoulement was developed in relation to the protection of refugees. Traditionally, refoulement refers to the obligation of States under Ar- ticle 33(1) of the 1951 Convention relating to the Status of Refugees (hereafter referred to as the Refugee Convention) and the 1967 Protocol relating to the Status of Refugees (hereafter referred to as the Refugee Protocol), according to which no State party to the Convention:

‘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’.

The prohibition on refoulement has also been developed under other – more general – human rights treaties. In Article 3(1) of the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereafter the Convention Against Torture or CAT) an explicit prohibition of refoulement is formulated to protect any individual from being returned to a country where there is a risk of his being subjected to torture. Furthermore, the prohibitions on torture and other forms of cruel, inhuman or degrading treatment or punishment laid down in Article 7 of the Inter- national Covenant on Civil and Political Rights (hereafter the ICCPR) and Article 3 of the European Convention on Human Rights and Fundamental Freedoms (hereafter the European Convention or ECHR) do not explicitly protect from refoulement but the supervising bodies have interpreted these articles to provide protection from refoulement. It remains uncertain to what extent other human rights contained in the

1 When referring to an individual in general I will use the male form.

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2 Introduction

investigated treaties also entail a prohibition on refoulement. These treaties and their respective prohibitions on refoulement are the focus of this study. In addition, other international legal instruments also contain prohibitions on refoulement, both in the field of refugee law and general human rights law.2Prohibitions on refoulement have also been developed and adopted in the field of international humanitarian law and international criminal law, i.e. in treaties concerning the protection of victims of armed conflicts and in extradition treaties.3These treaties and their respective prohibitions on refoulement are not the topic of this study.

1.1.1 Objective of the study

While the idea of protecting people from being removed to a country where they run a risk of being subjected to human rights violations seems firmly accepted by States in international law, the exact content and scope of such protection is far from clear.

Though various prohibitions on refoulement exist in international law there is no common definition. The main objective of this book is to find the international meaning of the prohibition of refoulement as contained in four human rights treaties and to identify, analyze and compare in a systematic way the common features contained in these prohibitions of refoulement. These features provide the framework for the analysis of each of the investigated treaties (see section 1.1.2). These features are: the scope of the prohibitions, the content of the prohibitions, and the character and contents of State obligations deriving from these prohibitions. They include such topical issues as the extra-territorial scope, protection from the country of origin including through diplomatic assurances, and the various negative and positive obliga- tions for States to effectively protect people from refoulement. I believe that the comprehensive analysis and comparison of these features and issues adds to existing legal studies regarding the investigated treaties and the prohibition of refoulement and will contribute to a better understanding of the right to be protected from refoule- ment.

This book provides a legal analysis of prohibitions on refoulement contained in four human rights treaties, i.e. the Refugee Convention, the ECHR, the ICCPR and the Convention Against Torture. Thorough legal research from the perspective of the individual right to be protected from refoulement will hopefully result in further

2 These prohibitions on refoulement include: Article 2(3) of the OAU Convention governing specific aspects of Refugee Problems in Africa, Article 22(8) of the American Convention on Human Rights, Article 5(2) of the American Convention and Article 5 of the African Charter on Human and Peoples’

Rights.

3 For example, Article 45 of the 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War protects civilians from being ‘transferred to a country where [they] may have reason to fear persecution for [their] political opinions or religious beliefs’. Article 3(2) of the European Convention on Extradition and Article 4 (5) of the Inter-American Convention on Extradition protect people from being extradited when fearing persecution for reasons such as race, religion, nationality or political opinion.

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Chapter 1 3

acknowledgement and improvement of effective individual protection from human rights violations. This book is a comprehensive legal study of existing prohibitions on refoulement in international law which can be useful for legal scholars and practi- tioners in asylum cases throughout the world. It is also a reminder for States which have obliged themselves to protect individuals from becoming victims of unspeakable atrocities. The emphasis of this study will be on:

1. an analysis of the scope and content of the international meaning of the prohibi- tions of refoulement contained in the Refugee Convention, the ECHR, the ICCPR and the CAT,

2. an analysis of the scope and content of the responsibilities of States deriving from these prohibitions on refoulement, and on

3. a comparison of the prohibitions on refoulement contained in the Refugee Conven- tion, the ECHR, the ICCPR and the CAT.

1.1.2 Research questions

The prohibitions on refoulement contained in the four Conventions will be analysed in four separate chapters. Each of these chapters will follow a similar structure which corresponds to the following three main issues:

1. What is the personal and territorial scope of the Convention and the prohibition on refoulement it contains?

2. What is the content or substance of the prohibition on refoulement?

3. What obligations or responsibilities for States derive from the prohibition on refoulement?

The first question concerns to whom a State has the responsibility of ensuring and respecting human rights; and concerns the personal and geographical scope of the Convention in general and the prohibition on refoulement in particular. Personal scope refers to the beneficiaries of the right to be protected from refoulement. Geographical or territorial scope refers – in principle – to the territory over which a State is respon- sible for ensuring protection from refoulement. Primarily, States are responsible for those who are within their territory. However, the responsibility of the State can also be engaged outside its territory, because an individual is under the control of the State.

The second question deals with the substance of the various prohibitions on refoulement. It answers questions such as, from what harm is a person protected, what level of severity is required, to what extent is it relevant that the harm will be com- mitted by agents of the State or can non-State agents also subject a person to harm of such gravity that it falls within the scope of refoulement protection. An important element is also the risk involved. How is it defined? How is it determined? Can the risk be minimised or avoided? When is national protection warranted rather than international protection? And is the prohibition on refoulement absolute or are ex- ceptions allowed?

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4 Introduction

The third question relates to the various obligations or responsibilities for States which follow from the scope and content of the prohibitions on refoulement. These obligations can be negative, i.e. the State has to refrain from certain actions, such as forcibly returning a person to a country where he runs the risk of prohibited treatment. These obligations can, however, also be positive, i.e. the State has a duty to act, for example, to admit a person to its territory or even to grant a person a residence permit. Another relevant sub-question is to what extent States have to ensure certain procedural safeguards in order to ensure protection from refoulement.

In the final chapter of this book I will compare the prohibitions on refoulement contained in the four treaties investigated.

1.1.3 Methodology of and sources for the study

This research is a legal study aimed at finding the international meaning of the prohibition on refoulement as contained in four human rights treaties. This study is mainly based on international sources. In general, these sources include the views of international monitoring or supervisory bodies and relevant literature. In my research I have not included a comprehensive and comparative analysis of the national laws and practices of States parties with regard to the treaties investigated. In part this is because I am looking for the international meaning of the treaty provisions investigated (see section 1.1.1) and in part because a comprehensive and comparative analysis of national laws and practices of State parties would be impractical. I acknowledge the limitations my study thus entails and recognise that as a result of excluding national laws and practices from my study the conclusions will not result in a definite inter- pretation of the investigated treaty provisions. However, the conclusions will indicate the legal interpretation provided by authoritative international sources and will as a result provide essential and powerful guidelines for the interpretation and application of the investigated treaty provisions.

With regard to the Refugee Convention UNHCR documentation, Conclusions of the Executive Committee and the writings of eminent scholars will be the main sources. In addition, I will use legislation developed by the European Union, in particular the Council Directive on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (hereafter the EU Qualification Directive)4 and the Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status (hereafter

4 European Union Council Directive on minimum standards for the qualification and status of third country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, 2004/83/EC of 29 April 2004, Official Journal of the European Union L304/12.

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Chapter 1 5

the EU Procedures Directive).5 Although geographically limited, the Qualification Directive provides for minimum common standards accepted by the EU Member States based, in part, on the Refugee Convention. Similarly, with regard to the ECHR oc- casional reference will be made to the EU Qualification Directive, albeit that the key sources will be the decisions and judgments of the European Court of Human Rights.

And with regard to the ICCPR and CAT the views of the relevant treaty bodies, the Human Rights Committee and the Committee Against Torture respectively, will be prime sources.

The study tries to provide concrete answers to the legal questions referred to in section 1.1.2. The level of abstraction and theorisation is limited as much as possible.

In particular with regard to the ECHR, the ICCPR and the CAT I will refer on many occasions to individual cases which have been brought before the Convention’s monitoring bodies. In that regard, the chapter concerning the Refugee Convention will include a limited number of individual cases, and will therefore be more abstract in its analysis. There is no international case law in the context of the Refugee Conven- tion and the UNHCR, as the Convention’s primary monitoring body, has had only limited legal involvement in individual cases.

1.1.4 Scope and limitations of the study

This study includes prohibitions on refoulement contained in three global and one regional treaty. The choice to incorporate the ECHR is justified by the fact that reference to the ECHR has been made by the monitoring bodies of the other Conven- tions. The study is limited to those prohibitions which have clearly been developed and acknowledged under various treaty provisions. It will not discuss other existing prohibitions on refoulement or the possibility of the future development of other such prohibitions. This study will also not include research into the existence of a prohibi- tion on refoulement under international customary law or prohibitions existing in national law. This research was concluded on 1 August 2008. Only in exceptional cases have I been able to include later developments.

1.1.5 Structure of the book

This book consists of three parts. The first will introduce the book. Section 1.1 introduces the study and includes the objectives and research questions of the study, a brief explanation of the research methodology, the scope and limitations as well as the structure of the book. Section 1.2 analyses relevant general issues of inter- national human rights treaty law. This section deals with issues of a general nature,

5 European Union Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status, 2005/85/EC of 1 December 2005, Official Journal of the European Union L326/13.

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6 Introduction

relevant to the analysis of the prohibitions on refoulement. The issues discussed are rules of treaty interpretation, in particular the interpretation of human rights treaties, the personal and territorial scope of human rights and the obligations of States to ensure the protection of human rights. Finally, Section 1.3 introduces the prohibition on refoulement, by outlining the right to asylum in international law, the historical development of the prohibition on refoulement in international law and referring to the common elements contained in such prohibitions.

In the second part, chapters 2 to 5, the four human treaties and their prohibitions on refoulement which are the subject of this study will be analysed. Each treaty will be introduced, its personal and territorial scope will be discussed, followed by an analysis of the scope and content of the prohibition on refoulement contained in it and an analysis of the various obligations which derive from the prohibition.

The third and final part of this book, chapter 6, will compare the various prohibi- tions on refoulement analysed in chapters 2 to 5, with a particular focus on the three main research questions.

1.2 Relevant general principles of human rights treaties

Treaties come in all kinds of forms, shapes and sizes and represent all fields of law.

According to the Vienna Convention on the Law of Treaties (Article 2(1)(a)) a treaty is:

‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’.

This study concerns treaties containing human rights. Human rights treaties are ‘law- making treaties’. They create imprecise, general norms for the protection of human beings. It is characteristic of human rights treaties that the States parties to them do not have a subjective interest of their own, but a common, objective, interest and non- reciprocal obligations to protect the rights of people.6 The International Court of Justice (ICJ) made this clear in its Advisory Opinion on Reservations to the Genocide Convention; a view that can equally be applied to other human rights treaties.7Accord- ing to the ICJ the Genocide Convention was adopted for a humanitarian and civilised purpose, whereby the State parties do not have an interest of their own, but a common interest to accomplish the purposes of the convention.8

6 Orakhelashvili 2001, p. 264. Orakhelashvili 2003, pp. 532-533.

7 Lauterpacht & Bethlehem 2003, p. 104 (para. 41). Orakhelashvili 2003, p. 532.

8 ICJ, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion), 28 May 1951, ICJ Reports 1951, p. 51 at 23.

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Chapter 1 7

Human rights treaties contain rights for people as well as legal obligations, primarily for States, to guarantee these rights.9With the development of human rights treaty law individuals have become clear beneficiaries of rights for which States are the duty bearers.10

1.2.1 The interpretation of human rights treaties 1.2.1.1 General rules of treaty interpretation

This study involves research in the field of human rights treaty law. In order to understand the scope and content of the responsibilities of States for the protection of individuals from refoulement under the various treaties analysed in chapters 2 to 5 of this study, and to be able to compare the analysed treaties in chapter 6, this chapter will discuss some of the relevant general principles of treaty law, in particular of human rights treaties.

The purpose of interpreting a treaty is to establish the meaning of the text of the treaty and thereby its application in a certain situation. It is obvious that the States parties to a treaty have the competence to interpret it. In addition, the treaty itself may confer the competence to interpret the treaty on a specified body or court or on the International Court of Justice.11

A general expression of the principles of treaty interpretation can be found in the Vienna Convention on the Law of Treaties.12The general rule of treaty interpretation is provided by Article 31 of the Vienna Convention on the Law of Treaties, according to which ‘a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose’. In addition to the text, which includes the preamble and annexes to the treaty, the context of a treaty consists of any agreement relating to the treaty and made by all parties in connection with the conclusion of the treaty as well as any

9 Brownlie 1998, pp. 12, 558.

10 Friedmann 1964, pp. 234-235. Jennings & Watts 1992, p. 847. Orakhelashvili 2001, p. 245. Arguably individuals have also become – to some extent – subjects of international law, i.e. they have acquired rights without the intervention of municipal legislation and they can enforce these rights in their own name before international judicial or quasi-judicial bodies. The issue of individuals as subjects of international law is beyond the scope of this study.

11 Brownlie 1998, p. 632.

12 Sinclair 1984, p. 153. 1969 Vienna Convention on the Law of Treaties, 115 U.N.T.S. 331, entry into force 27 January 1980. Technically speaking the Vienna Convention on the Law of Treaties does not apply to three of the four treaties investigated in this book because they predate the Vienna Convention on the Law of Treaties (the European Convention on Human Rights which entered into force on 3 September 1953, the Refugee Convention which entered into force on 22 April 1954 and the International Covenant on Civil and Political Rights which entered into force on 23 March 1976). Nevertheless, it is generally accepted that the Vienna Convention contains rules of international customary law in relation to treaty interpretation and is therefore applicable and authoritative: see for example ICJ, Territorial Dispute (Libyan Arab Jamahiriya/Chad), 1994, ICJ Rep. 6 at 21.

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8 Introduction

instrument made by one or more parties in the same connection and accepted by the other parties as related to the treaty. These agreements or instruments must be con- cerned with the substance or application of the treaty and are usually made on or soon after its conclusion. They may include agreed minutes of the drafting negotiations or the exchange of letters regarding the detailed application of terms used in a treaty.13These documents should be distinguished from the travaux préparatoires, or preparatory works, as well as from official commentaries produced later.14 In addition, together with the context, shall further be taken into account any subsequent agreement between parties regarding the interpretation or application of the treaty,15 any subsequent practice in the application of the treaty establishing an agreement between the parties regarding the treaty’s interpretation16and any relevant rules of international law applicable in the relations between the parties.17 A subsequent agreement refers to an agreement made by the States parties after the conclusion of the treaty regarding its interpretation or application.18 The agreement can take a variety of forms provided the purpose is clear and all States parties agree.19 Sub- sequent practice can also be relevant provided it is consistent and is common to, or accepted by, all the States parties.20Finally, relevant rules of international law applic- able in the relations between the parties are to be taken into account together with the context.

The general or primary rule of treaty interpretation identifies four main sources for interpretation, all of which have to be taken into account: good faith, the text of the treaty, the context of the treaty and its object and purpose.21Good faith indicates a moral element in interpreting a treaty, prohibiting manifestly absurd or unreasonable interpretations.22 Reference to the text indicates a textual or literal approach as a treaty is to be interpreted in accordance with the ‘ordinary meaning’ to be given to its terms.23Reference to the context is to a systematic approach, indicating that the treaty as a whole must be taken into account, including the preamble and any annexes.

Determination of the ordinary meaning cannot be made in the abstract, but only by considering the context in which it is employed.24 Finally, reference to the object

13 Aust 2004, p. 191.

14 Sinclair 1984, pp. 190-191.

15 Article 31(3)(a) Vienna Convention on the Law of Treaties.

16 Ibid., Article 31(3)(b).

17 Ibid., Article 31(3)(c).

18 Aust 2004, p. 191.

19 Ibid., pp. 191-193, including examples of subsequent agreements.

20 Ibid., pp. 194-195, including examples.

21 Ibid., p. 187; Jennings & Watts 1992, pp. 1272-1274; Nowak 1993, p. XXIII.

22 Aust 2004, p. 187. The principle of good faith or pacta sunt servanda underlies the most fundamental of all norms of treaty law, laid down in Article 26 of the Vienna Convention on the Law of Treaties:

see Sinclair 1984, p. 119.

23 This is different when the treaty establishes a special meaning.

24 Sinclair 2004, p. 188.

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Chapter 1 9

and purpose of the treaty indicates a teleological interpretation.25According to Sin- clair, the ordinary meaning of a treaty provision should in principle be the meaning which would be attributed to it at the time of the conclusion of the treaty. This is termed the ‘principle of contemporaneity’, requiring that the terms of a treaty must be interpreted according to the meaning attributed to the treaty at the time of its conclusion, and in the light of linguistic usage at that time.26 Sinclair refers here to Fitzmaurice and emphasises the intention of the drafters, limiting a dynamic method of interpretation.27Fitzmaurice, however, makes clear that such a static interpretation is not always valid, particularly regarding human rights treaties, as he states that the teleological approach is a method of interpretation more particularly connected with the general multilateral convention of the normative, and, particularly, of the socio- logical or humanitarian type. According to Fitzmaurice, it is particularly with reference to this type of convention that doubts have been felt about the validity, or even practicability, of ascertaining the intentions of the parties.28

Time has become an increasingly important element in the interpretation of treaties.

Many multilateral treaties concluded over recent decades are intended to be valid and applicable for a long period. The question is to what extent treaties should be inter- preted and applied as understood at the time of conclusion or whether the treaty is a living instrument the interpretation of which can change over time. A preference exists for the latter, particularly regarding human rights treaties, i.e. the adoption of a dynamic or evolutive interpretation in light of social and political developments.29 This preference appears to be supported by the text of Article 31(3) of the Vienna Convention on the Law of Treaties because it refers to subsequent agreements and practices. A dynamic interpretation is also supported by the International Court of Justice in its Advisory Opinion in the Namibia case of 1971. In this case the ICJ stated that ‘an international instrument has to be interpreted and applied within the entirely legal system prevailing at the time of the interpretation’.30

Another principle which plays an important role in the interpretation of treaties is the principle of effectiveness. It is not explicitly referred to in Article 31 of the Vienna Convention on the Law of Treaties but follows implicitly from this Article, subsumed in the reference to ‘good faith’ and ‘the object and purpose of the treaty’.

The principle of effectiveness means that in interpreting a treaty the interpretation should have the appropriate effect in accordance with good faith and the object and

25 Sinclair distinguishes three schools of thought: first, the subjective school, based on the intentions of the parties, secondly, the objective approach, based on the text, and, thirdly, the teleological school based on the object and purpose: Sinclair 1984, p. 115.

26 Ibid., p. 124.

27 Fitzmaurice 1957, p. 212.

28 Ibid., p. 207.

29 Bernhardt 1999, pp. 12-16, 21.

30 ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion), 21 June 1971, ICJ Reports 1971, p. 16 at para. 53. Bernhardt 1999, pp. 15-16. Lauterpacht & Daniel Beth- lehem 2003, p. 105 (para. 43).

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10 Introduction

purpose of the treaty.31The principle of effectiveness should, however, not lead to an excessive departure from or illegitimate extension of the text of the treaty.32

In addition to the primary means and methods of treaty interpretation Article 32 of the Vienna Convention introduces supplementary means of interpretation. Accord- ingly, recourse may be had to other sources, including the preparatory works (travaux préparatoires) to the treaty and the circumstances of its conclusion, including the intentions of its drafters. Supplementary means may be used to confirm the meaning resulting from the primary means of interpretation or to determine the meaning when the primary interpretation leaves it ambiguous or obscure or with a result which is manifestly absurd or unreasonable.33The preparatory works generally include such materials as successive drafts, conference records and explanatory statements. The travaux préparatoires, as one of the supplementary means of interpretation, are primari- ly meant to confirm an established interpretation and only subsidiarily meant to determine an interpretation.34 The travaux préparatoires and the circumstances of a treaty’s conclusion as a source of interpretation must be used with great care.35 The usefulness of the travaux préparatoires is often marginal and seldom decisive.36 With regard to many treaties the most important parts of the negotiations took place in secrecy or even informally, with no official record for inclusion in the travaux préparatoires.37Moreover, multilateral treaties, including human rights treaties, are often initially adopted by a small number of States, and over the years many other States join, thereby limiting the value of the views and intentions of the original participating States. Finally, recourse to the travaux préparatoires presents the danger of interpreting the preparatory works instead of the treaty itself.38The preparatory works to a treaty, and therefore the intention of the drafters, have limited relevance in interpreting the treaty. Limiting the relevance of the past indicates a further prefer- ence for a dynamic or evolutive way of interpreting treaties in line with their object and purpose rather than holding on to the spirit of the time of drafting.

Article 32 of the Vienna Convention does not limit the supplementary means of interpretation to the travaux préparatoires, even though they are the only source

31 Brownlie 1998, p. 636. Sinclair 1984, p. 118. M. Nowak 1993, p. XXIV.

32 ILC Reports of the International Law Commission to the General Assembly, Law of Treaties, 1966, 2 Yearbook ILC 169, 219 para. 6, UN doc. A/6309/Rev.1 (1966), as quoted in Young 2002, p. 64 note 161.

33 Article 32 Vienna Convention on the Law of Treaties. See also Aust, p. 197.

34 Aust 2004, p. 197.

35 Bernhardt 1999, p. 14. Orakhelashvili 2003, p. 537.

36 Nowak 1993, p. XXIV. Young 2002, p. 78. Aust 2004, p. 199.

37 Sinclair 1984, p. 142. Aust 2004, pp. 198-199.

38 ICJ, Case concerning the application of the 1902 Convention governing the guardianship of infants (the Netherlands v Sweden) (Merits), 28 November 1958, ICJ Reports 1958, p. 55 at 129. Judge Spender in a separate opinion stated ‘recourse to preparatory work of treaties or conventions may, in certain cases, be necessary. But whenever it is permissible it should, I think, be done with caution and restraint. For there is always the danger that, instead of interpreting the relevant treaty or convention, one will find oneself tending to interpret the preparatory work and then transferring that interpretation across to the treaty or convention which is the sole subject of interpretation’.

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