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Counter-Terrorism - International Law and Practice edited by Salinas de Frías, Ana María; Samuel, Katja; White, Nigel D (1st January 2012)

Part I Counter-terrorism and The Rule of Law Framework, 5 States’ Obligations under International Refugee Law and Counter-Terrorism Responses

Ana María Salinas de Frías

From: Counter-Terrorism: International Law and Practice

Edited By: Ana María Salinas de Frías, Katja Samuel, Nigel D White

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 20 January 2019

Subject(s):
Rule of law — Opinio juris — Terrorism — Torture — Non-refoulement

(p. 111) States’ Obligations under International Refugee Law and Counter-Terrorism Responses

1.  The Rule of Law, Counter-Terrorism, and Refugee Law: Some Introductory Remarks

One of the recurring, significant themes of the current volume is the noticeable shift which has taken place since the terrorist attacks of 9/11 whereby states’ imperatives of security are prevailing over their equally important imperatives of democracy, often in a manner which operates outside the parameters of democracy or the rule of law.1

One significant consequence of this uneven balancing in favour of security2 has been the introduction of ill-conceived national immigration and refugee laws as an instrument of counter-terrorism responses. In terms of their overall effect, such legislation has often been contrary to the cornerstone principles of the rule of law,3 namely to ensure: the accountability of a government and its officials and agents under the law; the quality of the law, especially that laws are clear, publicized, stable, and fair, and that they protect the fundamental rights of all individuals, including the security of persons and property; that the process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient; and that access to justice is provided by independent, ethical, and competent adjudicators, attorneys, or (p. 112) representatives and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the community they serve.4

The general approach of states has been to place especial emphasis upon reducing the margins of refuge, asylum, immigration, and nationality laws. One of the principal concerns here is that in doing so immigration and refugee laws have increasingly been utilized as a substitute for criminal justice responses to terrorism and, effectively, have become ‘soft options’ for any governments seeking to apply lower standards of protection, even though these are both contrary to and unjustifiable under applicable rule of law principles. However, despite such trends, no inherent link exists between national security and refugee law; indeed, it is often forgotten that refugee law is primarily a humanitarian instrument designed to regulate the exceptional situation of forced migration. Furthermore, the rule of law is endangered when national security concerns dominate the debate concerning refugees’ protection.

Nevertheless, governments have often been afforded the political space to do this, including by the electorate in democratic states, by the growing antagonism towards increased levels of illegal migration flows.5 In addition to the social problems created by such trends, existent cultures of suspicion regarding the asylum system have been further exacerbated by the events and resultant fear of the events of 9/11. Although it is both important and legitimate for governments to pursue national security imperatives, the persisting concern of states that their asylum systems might be abused for terrorist purposes have been translated into some disproportionate practices. These have included the creation of new criminal offences sometimes defined in very broad terms or remotely linked to terrorist offences,6 overly broad qualifying criteria for exclusion,7 or further erosion to appeal rights and procedures.

(p. 113) In this vein, governments are not only reducing an individual’s margin to apply for asylum, but also his or her right to challenge asylum decisions before the courts.8 Consequently, not only is the rule of law being undermined by direct attempts to exclude judicial review, but it is also being eroded by a ‘creative legal and policy framework which seeks to immunize itself from effective judicial scrutiny’.9 In response, judicial scrutiny of such measures must be intensified and reinforced, especially in relation to those legal standards which should regulate these exceptional situations, but in relation to which executives are currently benefiting from undue judicial deference to the pre-eminence of security agendas in the use of their powers.10

In terms of the applicable legal framework, refugee and asylum seeker status is governed, at the universal level, by the Convention Relating to the Status of Refugees 195111 (also referred to here as ‘the Convention’) and its additional Protocol (1967),12 the primary objective of which is to protect people from persecution by their own national states. The cornerstone legal principle of this framework in order to secure such protections and related guarantees is that of non-refoulement. Yet it is this very principle which is being threatened most by those security imperative trends just outlined, in particular increased reliance upon immigration instruments to circumvent criminal justice processes.13 As succinctly articulated by the International Commission of Jurists in the Berlin Declaration adopted in 2004, under this principle:

States may not expel, return, transfer or extradite a person suspected or convicted of acts of terrorism to a State where there is a real risk that the person would be subjected to a serious violation of human rights, including torture or cruel, inhuman (p. 114) or degrading treatment or punishment, enforced disappearance, extrajudicial execution, or a manifestly unfair trial; or be subject to the death penalty.14

Other aspects of the international legal framework for regulating refugee and asylum issues, including inbuilt exceptional provisions on security issues, and the growing practice of reliance upon diplomatic assurances by states in an attempt to circumvent legal restraints placed upon them by the non-refoulement principle, are examined elsewhere in this volume and so will not be repeated here.15 Consequently, this chapter focuses upon controversies surrounding the exact legal nature of this cornerstone principle. It further considers some of the related difficulties attributable to the absence of an international court with powers to rule definitively upon related issues, not least the criteria for assessing asylum status and the expulsion of a person who is under the jurisdiction of a state.

2.  Definition and Legal Nature of the Non-Refoulement Principle

There are two provisions within the framework of the Refugee Convention 1951 which are of particular relevance to any reliance placed upon it as an instrument of counter-terrorism. The first is Article 1(F),16 which permits some limited exceptions on security grounds to rights being claimed under the Convention. The other is Article 33,17 which articulates the specific prohibition against refoulement. Nevertheless, because no individual subjective right to asylum has ever been enshrined within a legally binding instrument such as a human rights or refugee treaty, it remains unclear whether: first, this provision encompasses a subjective right for any person to be granted asylum; and second, whether its legal status is limited to being merely an obligation under the Refugee Convention 1951, or whether it has become an obligation of customary international law or norm of jus cogens.

(p. 115) 2.1.  The Customary Nature of the Non-Refoulement Principle

According to the preliminary discussions held before the adoption of the Refugee Convention 1951, the duty of non-refoulement was intended to ensure that asylum seekers did not fall again into the hands of their persecutors due to decisions made by the Convention’s States Parties.18 That said, Article 33 did not create any accompanying obligation upon States Parties to receive refugees, a fact which is both reflected within the negative wording of this provision and the subsequent endorsement of this position by many human rights control bodies and courts when deliberating upon the sovereign and exclusive power of states to regulate the entry of non-citizens into their territories.19

Therefore, it seems reasonable to conclude that it does not necessarily follow from the duty set out in Article 33 that the asylum seeker has a subjective right to be granted asylum by any specific country. Such an interpretation is also consistent with the wording of Article 14 Universal Declaration on Human Rights 1948 (UDHR),20 which enshrines a general right to seek asylum, as well as the more general right articulated in Article 12 International Covenant on Civil and Political Rights (ICCPR).21 Thus, States Parties to the Refugee Convention 1951 remain free to grant or to reject the claim of an asylum seeker within their territories as long as the person in question is not compulsorily returned to the country of persecution. Conversely, as far as the denial of asylum exposes the asylum seeker ‘in any manner whatsoever’ to the risk of being persecuted on one of the grounds specified under the Convention, a State Party is under a de facto duty to admit that refugee as the only means to avoid persecution.22

Although limited in terms of its scope and related duties, a key issue remains whether the substantive content of Article 33 is merely a conventional duty binding only upon those States Parties to the Convention, or whether it can be considered to have acquired a customary status such that it has become a universally binding (p. 116) obligation upon all states. If the latter position is true, this would mean that not only the 144 States Parties to the Refugee Convention—which include such states as India, Iraq, Libya, Pakistan, Saudi Arabia, and Sri Lanka23 which are significant in current efforts to tackle terrorism, although not always in a very positive way from a rule of law perspective—but all members of the international community would be prevented from returning a refugee to a receiving state where there is a significant risk of persecution. This duty would be binding regardless of the personal characteristics of the refugee, including in terms of any allegations of criminal activities—including terrorism.24

In terms of its normative journey to date, the principle of non-refoulement was originally included in the League of Nations treaty on the protection of refugees as early as 1933.25 It was then specified once again in Article 33 Refugee Convention 1951, to which no reservations are permitted under Article 42 of the Convention. Subsequently, a number of UN bodies and other international organizations—through both legally and non-legally binding instruments—have also taken the existence of this duty into account. In doing so, the duty has been described in terms of forming the keystone of the refugee protection system,26 and the principle of non-refoulement has been referred to in terms of being ‘embedded in customary international law’.27

(p. 117) Traditionally, under public international law, customary norms arise where two main elements can be established: uniform, recurring, and generally accepted state practice (the material element); and the conviction of the legally binding nature of such a recurring practice (opinio juris sive necessitatis).28 Indeed, as the International Court of Justice has specified, any subsequent justification by a state in relation to the breach of such an unwritten law in fact constitutes not a denial but rather a confirmation of its existence.29

In relation to determining whether or not the non-refoulement principle has become one of customary international law, there is some evidence of collective state practice in such forms as resolutions adopted by international bodies, which may also constitute a source of opinio juris in this respect.30 Although decisions of such entities as the Executive Committee of the UN High Commissioner for Refugees (UNHCR) are not per se legally binding upon either itself or states,31 nevertheless any collective acceptance by states of these kinds of statements and decisions from such a significant and authoritative body on refugee issues may well be considered to be a clear signal of a conviction by states which contributes to a nascent opinio juris. Certainly, because of UNHCR’s unique international role and related responsibilities in supervising and influencing the application of refugee law, it seems reasonable to conclude that it acts on behalf of the international community. Therefore, from this point of view, any lack of condemnation by States Parties of individual breaches of the non-refoulement principle should not be interpreted as their acquiescence in them, because ultimately UNHCR is universally representing all states on these issues.32

The conduct of individual states is also relevant here—for example their responses to questions posed by the Executive Committee of the UNHCR or to the Special Rapporteur on Terrorism and Human Rights—in discerning whether or not they believe the duty of non-refoulement to be a binding obligation regardless of whether or not a particular state is a State Party to the Refugee Convention 1951. Here, individual states have persistently reaffirmed their national sovereignty and related power to control the access of foreigners to their territories, which has included their right to strike a balance between their security imperatives and related duty to (p. 118) protect their own population from terrorist threat, and their international obligations under non-refoulement. That said, they have never invoked their right to refoule anyone on account of their sovereign powers.

One recent and significant example of state practice here, in determining whether or not the principle is now one of customary international law, concerns the efforts of the current United States (US) Administration to find a safe place to send the 22 Uighur detainees being held at Guantánamo Bay following the Presidential Decree to close those detention facilities.33 The US has striven to convince other states to host some of those detainees instead of returning them to China where it is well known that they risk persecution, not least on account of their religious beliefs. Whilst it is possible that these Uighur detainees are no longer considered to pose a serious risk to national security—and that these ongoing efforts may not by themselves be tantamount to any confirmation of a customary rule—nevertheless they are influential. Although US domestic courts have declined to liberate these detainees into US territory,34 the continuing reluctance of the US Administration to send them back home may be indicative of the (potential or emerging) existence of a customary duty. Not only is the US a concerned state on this issue, but such an approach represents a positive divergence from its previous position during the last decade while prosecuting ‘the war on terror’ which often did not conform with this international obligation.

2.2.  Does the Non-Refoulement Principle have Jus Cogens Status?

The next issue considered is the question whether or not the non-refoulement principle has acquired jus cogens status. Once again, it is necessary to broaden the analysis here beyond the immediately applicable provisions of the Refugee Convention 1951 and the 1967 Protocol to a number of other widely supported international human rights instruments which impose duties upon states which are relevant to, although not exactly the same as, the non-refoulement principle. Of particular interest here are those instruments with explicit references to refugee or asylum issues: Article 3 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (CAT),35 Article 14 UDHR, and Article 16(1) International Convention for the Protection of All Persons from Enforced Disappearance 2006;36 and those which by implication make up part of (p. 119) the non-refoulement legal framework due to their more generally applicable prohibition of torture and other forms of ill-treatment, which lie at the heart of the principle’s objectives,37 for example Article 7 ICCPR, Article 3 European Convention on Human Rights 1950 (ECHR), and Article 22(8) American Convention on Human Rights (ACHR).38

Importantly, these latter prohibitions against torture et al are non-derogable under Article 4(2) ICCPR and Article 15(2) ECHR respectively, and the prohibition against torture is a universally binding principle of customary international law with jus cogens status.39 Due to the indivisible normative link between the absolute, non-derogable prohibition against torture and non-refoulement—including in relation to states’ counter-terrorist responses—the issue then becomes whether the former not only reinforces the apparent customary status of the latter, but whether it further introduces a new element. More specifically, the questions arise as to whether the jus cogens nature of the prohibition against torture is transferred across to the non-refoulement principle; and, if so, whether non-refoulement has become a peremptory norm of public international law.

These questions are crucial, because if the answers to them are in the affirmative, then any attempts by states to limit the protection of refugees under the non-refoulement principles, whether or not on grounds of national security imperatives, become unlawful exercises of executive power. More specifically in terms of the existing refugee law framework, it could mean that recourse to Article 33(2) Refugee Convention 1951 is not available as a counter-terrorism measure where a refugee’s return would put him or her at risk of suffering acts of torture and/or other forms (p. 120) of inhuman or degrading treatment or punishment. If such an interpretation is in fact correct, it would encompass all possible forms of return—refoulement as a result of application of Article 33(2), or non-entry on any of the grounds specified under Article 1(F) clauses which result in refoulement, extradition, expulsion, or deportation. Nor would its scope be limited to a particular state’s own territory, rather it would apply similarly to any territory under the jurisdiction of that state,40 for example in a situation of occupation or international administration of a territory.

Certainly, there is already a body of international opinion which points to the non-refoulement principle having acquired jus cogens status, comprising inter alia international scholarship,41 the UN Special Rapporteur on Torture,42 the UN Special Rapporteur on Terrorism and Human Rights,43 the UNHCR Executive Committee,44 and some significant international independent expert bodies, such as the International Commission of Jurists,45 and the Cartagena Declaration in the case of Latin America.46 However, such opinions alone are insufficient evidence of (p. 121) jus cogens status. Rather, according to the definition of peremptory norms of international law under Article 53 Vienna Convention on the Law of the Treaties 1969,47 not only must this obligation be established by a number of international treaties with a high degree of state participation through their ratification, but the actual practice of states is of the utmost importance also. In this regard, the comments and observations of international monitoring bodies on human rights issues form important sources of evidence.

3.  The Doctrine and Jurisprudence of International Human Rights Bodies

The doctrine and jurisprudence of international human rights bodies, whether treaty body committees or courts, are important in terms of interpreting and shaping inter alia the non-refoulement principle, not least in terms of identifying the emergence or even establishment of any customary international law and/or jus cogens status. Some important examples are considered here.

3.1.  UN Committee Against Torture

The UN Committee Against Torture (UNCAT) has considered the prohibition of non-refoulement from two different perspectives: under its capacity to draft general comments on the CAT’s provisions or on states’ reports;48 and under its powers to deal with individual communications by private persons where a State Party has accepted the competence of the UNCAT on such issues.49 Its decisions are authoritative—although not technically legally binding—even though the system is adopted and consented to by States Parties on a voluntary basis.50

(p. 122) As far as its general comments are concerned, the UNCAT has only really had one opportunity to consider the legal nature of the non-refoulement principle51 in its General Comment No 2, of which two of its conclusions are of particular relevance to the current discussion. First, that even though Article 2 CAT only deals specifically with torture, the absolute, non-derogable prohibition also includes other forms of cruel, inhuman, or degrading treatment or punishment. In particular, in reaching this finding, the Committee was influenced by what it considered to be the ‘indivisible, interdependent and interrelated’ as well as often ‘overlapping’ nature of the different forms of ill-treatment, whereby ‘the definitional threshold between ill-treatment and torture [in practice] is often not clear’.52

The impact of this reasoning, which interprets the scope of CAT widely rather than narrowly, upon states in their counter-terrorism responses is that the principle of non-refoulement will be violated not only where there is the risk of the gravest form of mistreatment in the form of torture, but also the risk of any other forms of ill-treatment. Furthermore, the UNCAT has made it clear that:

… Article 2, paragraph 2, provides that the prohibition against torture is absolute and nonderogable. It emphasizes that no exceptional circumstances whatsoever may be invoked by a State Party to justify acts of torture in any territory under its jurisdiction…. This includes any threat of terrorist acts or violent crime as well as armed conflict, international or non-international.53

The other significant conclusion is that the UNCAT has interpreted jurisdictional criteria widely, both from the point of view of the concept of territory as well as of those committing acts of torture,54 similar to the approach of the European Court of Human Rights (ECtHR) considered below. In linking it with the principle of non-derogability, the UNCAT has interpreted the concept of ‘any territory under its jurisdiction’ to mean:

[A]ny territory or facilities and [which] must be applied to protect any person, citizen or non-citizen without discrimination subject to the de jure or de facto control of a State party. The Committee emphasizes that the State’s obligation to prevent torture also applies to all persons who act, de jure or de facto, in the name of, in conjunction with, or at the behest of the State party.55

(p. 123) Although General Comment No 2 also extends protection for individuals and groups who are vulnerable to discrimination or marginalization, neither refugees nor asylum seekers are expressly included. For this it is necessary to consider the UNCAT’s approach to individual communications.

Once again, in terms of its overall approach, it is apparent that the Committee has adopted a broad approach, applying the non-refoulement principle not only to refugee situations,56 but also to extraditions and deportations.57 This is illustrated by the case of Tapia Paez v Sweden in which a Peruvian national, who was a former member of the ‘Shining Path’ terrorist organization, was refused refugee status by Sweden. He had previously been armed and engaged in criminal activity in Peru. Consequently the State Party argued that it was justifiable to exclude him under Article 1(F) Refugee Convention 1951. The UNCAT found that Sweden would be in violation of Article 3 CAT if the author of the communication was extradited due to the risk that he would be tortured. Crucially, when referring to the author’s activities in Peru:

The Committee consider[ed] that the test of article 3 of the Convention is absolute. Whenever substantial grounds exist for believing that an individual would be in danger of being subjected to torture upon expulsion to another State, the State party is under obligation not to return the person concerned to that State. The nature of the activities in which the person concerned engaged cannot be a material consideration when making a determination under article 3 of the Convention.58

Importantly too, not least in relation to international efforts to fight terrorism, the UNCAT has also found such fundamental protections to be non-derogable in the context of multinational cooperation, even when responding to the imperatives of binding Security Council resolutions. This is illustrated by the case of Agiza v Sweden, where the UNCAT considered the removal of an Egyptian national who had escaped from Egypt and intended to apply for asylum in Sweden. After determining that Mr Agiza had been engaged in terrorist activities in Egypt, the Swedish authorities refused to grant him refugee status and extradited him to Egypt despite his alleged fear of being persecuted. The Committee ‘acknowledge[d] that measures taken to fight terrorism, including denial of safe haven, deriving from binding (p. 124) Security Council Resolutions are both legitimate and important. Their execution, however, must be carried out with full respect to the applicable rules of international law, including the provisions of the Convention, as affirmed repeatedly by the Security Council….’59 In upholding the applicant’s claim that he was expelled in violation of Article 3 CAT—not least on the particular facts where he was ill-treated prior to his expulsion by foreign agents with the acquiescence of the State Party’s police—the UNCAT further held that ‘[t]he procurement of diplomatic assurances, which, moreover, provided no mechanism for their enforcement, did not suffice to protect against this manifest risk’.60

Therefore, and according to the doctrine of the UNCAT, there is no doubt on the jus cogens nature of the prohibition of refoulement not only when connected with torture, as the CAT expressly states, but also when connected to the possibility of ill-treatment, in any territory under the jurisdiction of a State Party. This remains true whether the prohibited acts are perpetrated by state organs or by any official or agent of a State Party.

3.2.  UN Human Rights Committee

As with the UNCAT, the UN Human Rights Committee (UNHRC) may similarly shape human rights norms, especially those of the ICCPR, through its general comments, observations on states’ reports, and findings on any individual communications where particular States Parties have accepted its competence, in exercise of its powers under Articles 40 and 41 ICCPR.61

The UNHRC has established a similar doctrine on refugee and non-refoulement issues to the UNCAT. An important element has been its consideration of individual communications concerning the legal nature and scope of the non-refoulement principle in relation to the non-derogable prohibition of torture enshrined in Article 7 ICCPR. Likewise, the UNHRC has accepted the applicability of the non-refoulement principle to deportation situations62 and extradition cases.63

(p. 125) As far as its general doctrine is concerned, there are some relevant general comments adopted by the Committee concerning the non-refoulement principle. This has been not only in the more general context of recalling the absolute nature of the prohibition under Article 7,64 but also with respect to emergency situations, including those in response to terrorism,65 where the UNHRC has clearly stated that:

[T]he 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 6 and 7 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. The relevant judicial and administrative authorities should be made aware of the need to ensure compliance with the Covenant obligations in such matters ….66

The same line of reasoning has been maintained in relation to its concluding observations on the practices of particular states.67 Consequently, it seems that the jus cogens status of the non-refoulement principle is clear to the UNHRC, although with a more limited scope compared to UNCAT doctrine which is limited to those situations where there is a risk of torture or loss of life. Even though the UNHRC makes reference to an extra-territorial application of the prohibition, the general reference made to ‘all persons under their control’ could be construed as meaning persons in any territory under the jurisdiction of the state.

3.3.  The Inter-American System of Protection

The Inter-American system for the protection of human rights has also made an important contribution to the development of refugee and asylum issues, through both its legal instruments and jurisprudence.

In relation to the former, the primary convention is the ACHR. In addition to the general prohibition against torture under Article 5(2)—which is non-derogable (p. 126) under Article 27(2) even in an emergency situation—specific provision is made for the right to asylum, guaranteed by the non-refoulement principle, in Article 22(7)68 and (8)69 ACHR. The other instrument of particular relevance here is the Inter-American Convention to Prevent and Punish Torture.70 More specifically, Article 13 provides that ‘[e]xtradition shall not be granted nor shall the person sought be returned when there are grounds to believe that his life is in danger, that he will be subjected to torture or to cruel, inhuman or degrading treatment, or that he will be tried by special or ad hoc courts in the requesting State’.

With respect to the jurisprudential interpretation of such principles, the ACHR established the Inter-American Commission on Human Rights (IACHR) and Inter-American Court of Human Rights (IACtHR) in order to ensure that States Parties respect those rights and obligations enshrined within the Convention, which are examined in detail elsewhere in the current volume.71

In terms of the scope of these protections, the Inter-American system protects the non-refoulement principle in relation to asylum seekers. The Cartagena Declaration 1984 further considered that it should protect those persons who have to flee in order to escape the consequences of generalized political violence or an internal conflict.72 Although not technically legally binding, such declarations may nevertheless be influential in informing state practice and developing customary international law norms.

More specifically, in relation to the applicability of the non-refoulement principle where serious criminal charges or national security grounds are raised by States Parties, the IACHR has held that any exclusion grounds must be construed in a restrictive manner. In this vein, it has firmly stated that a state has to look also at the refugee’s fear of persecution in any circumstances, and that all aggravating or mitigating factors must be taken into account in order to make an individual decision.73 It has further held that even in the worst possible case (somebody convicted of (p. 127) criminal offences which raise national security concerns) no person should be sent back to a country where he or she faces a threat to his or her life or inhuman or degrading treatment.74

Both the IACHR and IACtHR have been influential in terms of developing the status of the non-refoulement principle as one of both customary international law and of jus cogens, at least within the Inter-American region. One important IACHR case on these issues is The Haitian Centre for Human Rights and others v United States. Here, the Commission had the opportunity to consider the legal nature of the principle of non-refoulement in relation to the apprehension on the high seas and subsequent return of a group of Haitian nationals to Haiti, where they were subjected to torture and inhuman treatment. Significantly, the IACHR took it for granted that the principle was now one of customary law.75 It further determined that: first, international law had developed to a level at which there is recognition of the existence of a procedural right of a person seeking refuge to a hearing in order to determine whether that person meets the criteria of the Refugee Convention 1951; and, second, that Article 33 Refugee Convention 1951 has no geographical limitations.76

The IACtHR has also pronounced on the non-refoulement principle, both in terms of its content and legal nature, in a concurring opinion to what has now become its landmark case of Juridical Condition and Rights of Undocumented Migrants which considered the basic rights of a group of illegal immigrants. Adopting the same line of reasoning as the IACHR had done previously in the aforementioned Haitian case, the President of the Court in his concurring opinion was categorical in his declaration not only on the existence of an individual subjective right to asylum, but also that the non-refoulement principle had acquired both customary and jus cogens status.77

It would appear, therefore, that the customary status of the non-refoulement principle is uncontroversial within the Inter-American system of protection of human rights, according to the reasoning and jurisprudence of its two main legal organs, and that its jus cogens nature would be more than nascent in status within the Latin American area.

3.4.  European Court of Human Rights

The jurisprudence of the ECtHR has not only been very influential on the interpretation and development of these key norms, but it is the originator of the doctrines (p. 128) of the human rights bodies just considered. In particular, its interpretation of the non-derogable, absolute nature of the prohibition against torture and other forms of ill-treatment under Articles 3 and 15(2) ECHR—which are examined extensively elsewhere78—have been especially influential in interpreting and applying the principle of non-refoulement.

More specifically, the ECtHR has reaffirmed its total rejection of any exception to the prohibition of torture, and cruel, inhuman or degrading treatment in immigration and refugee contexts. Significantly, in the terrorism related case of Chahal v United Kingdom, the Court not only affirmed that the prohibition under Article 3 ECHR against ill-treatment is equally absolute in expulsion cases, but that ‘[t]he 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’.79

The ECtHR has maintained its robust stance on Article 3, resisting any political or other forms of pressure to introduce a sliding scale of protections in response to claimed security imperatives, including those of counter-terrorism. This is significant in terms of the wider debate and context on these issues, in which the relationship between asylum matters and the fight against terrorism remain topics of lively debate within Contracting States to the ECHR, not least following the terrorist attacks in Madrid and London.

A common position adopted by states—especially those which have been involved in terrorist offences committed by people of immigrant, refugee, or asylum backgrounds (very few), or having direct links with people currently enjoying such protection—has been to insist upon returning such persons to their countries of origin or former residence, pointing to their own duty to protect their populations from the threat of terrorist activities. It is true that Article 1 ECHR, in conjunction with Articles 2 (right to life) and 3 (prohibition of torture), clearly imposes this duty.

Nevertheless, from the outset, the Court has made it clear as a general principle that this obligation must be reconciled in practice with the other international obligations which also derive from international human rights law.80 With particular regard to the fight against international terrorism, it has underlined the fact that the obligation of non-refoulement remains, with the consequence that the deportation of non-nationals—even those suspected of having committed in the past or being (p. 129) likely to commit in the future acts of terrorism81—is not an appropriate instrument of counter-terrorism where such individuals have a genuine fear of being subjected to ill-treatment or torture in the receiving country.

In taking such an approach, the ECtHR has not only established the strict application of the principle of non-refoulement and its associated protections to all refugee or asylum situations regardless of any security implications, but in doing so it has effectively increased the level of protection afforded to such persons under the Refugee Convention 1951 as already noted.82 That said, the Court has acknowledged that the ECHR does not confer on any individual the right to be granted asylum, leaving this matter in the hands of the states themselves—subject to the constraints of non-refoulement. However, it has interpreted these limitations upon states in a manner which places a positive obligation upon them not to deport the individual to his or her country of origin or residence in such circumstances.83 This further prohibits any artificial construction of these obligations by states, including on claimed grounds of national security.

An important aspect of the Court’s approach here is that it has also explicitly and categorically rejected any argument put forward by some Contracting States to the effect that the ECHR requires (or allows) a balance to be struck between the potential risk of harm suffered by the person deported, and the danger he or she might represent if not sent back. Specifically:

The Court considers that the argument based on the balancing of the risk of harm if the person is sent back against the dangerousness he or she represents to the community if not sent back is misconceived. The concepts of ‘risk’ and ‘dangerousness’ in this context do not lend themselves to a balancing test because they are notions that can only be assessed independently of each other. Either the evidence adduced before the Court reveals that there is a substantial risk if the person is sent back or it does not. The prospect that he may pose a serious threat to the community if not returned does not reduce in any way the degree of risk of ill-treatment that the person may be subject to on return. For that reason it would be incorrect to require a higher standard of proof, as submitted by the intervener, where the person is considered to represent a serious danger to the community, since assessment of the level of risk is independent of such a test.84

The Court has further stated that an application for asylum should be treated individually and should offer an opportunity for appeal against any refusal to grant (p. 130) asylum, where necessary. However, where the state in which asylum is being requested or which receives the asylum seeker has sufficient grounds reasonably to suspect that the individual in question is involved in terrorist activities, the application may be rejected. Nonetheless, this does not relieve the state of its non-refoulement obligation to the asylum seeker. Furthermore, the ECtHR has made it clear that the expulsion or deportation order must be carried out with due regard for the integrity and dignity of the person in question, avoiding any type of inhuman or degrading treatment.85

The overall effect of the ECtHR’s case law is that states need to address any potential security threats posed by immigrants, refugees, or asylum seekers through the development of more sophisticated methods than such blunt instruments as deportation or refoulement, not least in terms of making greater efforts to promote integration, tolerance, and understanding within their territories.86

Consequently, according to the doctrine consistently held by the ECtHR, it seems to be clear that the non-refoulement principle—where the applicant may be at risk of torture, ill-treatment, or flagrant denial of justice—not only enjoys customary law status, but that it should also be respected in practice as a norm of jus cogens by Contracting Parties to the ECHR.

4.  Some Concluding Remarks and Recommendations

The rule of law is essential to the construction of a democratic culture in which people are treated equally: it promotes a democratic culture of equal concern and respect and, in the context of asylum, it advances a more reasoned approach to this highly contentious arena. As is evident from the above comparative analysis of the jurisprudential approach of different human rights bodies and organs on the principle of non-refoulement, a pivotal tension exists between those bodies in their functions of upholding those foundational rule of law principles referred to in the introductory remarks; and determining the substance and validity of legal arguments in cases on immigration and asylum matters in which there is a frequent collision with national security imperatives—some of which are valid, others less so. As has been said in relation to asylum law, where extensive pressures are placed upon governments and public administrations to deliver quick results, these must be countered by an equivalent insistence upon the significance of the rights of every individual.87 Only in this way, as the former UN Secretary-General remarked, will (p. 131) it be possible to achieve the breadth, depth, and sustainment of global cooperation amongst states which is necessary to advance the cause of larger freedom, not least in terms of greater inter-state accountability.88

It is evident from the above examination that restrictive domestic and international immigration norms have paved the way for increased restrictions to be placed upon the granting of refugee status, with the accompanying potential for human rights abuses to occur under security imperatives. This is despite the grounds which exist already within the framework of the Refugee Convention 1951 to prevent refugee status from being afforded to and abused by those persons who are not deserving of such protection. A significant rule of law challenge in relation to state practice, therefore, is to reverse current trends so that they operate within rather than erode the existing immigration legal framework which is already adequate to accommodate legitimate security needs, even those relating to counter-terrorism.

As far as the doctrine of UN monitoring bodies (UNCAT and UNHRC) is concerned, it is now well established that non-refoulement must be applied as a principle of international customary law in relation to any counter-terrorism response by a state; and that it is applicable to situations of return, expulsion or deportation, and extradition. With respect to the Inter-American or the European systems of protection, the same conclusion can be reached, together with the mandatory observance of this obligation even in an extra-territorial scenario (any territory under the jurisdiction of states). The doctrine of the UNCAT similarly supports this possibility of extra-territorial reach.

Furthermore, non-refoulement of those vulnerable persons in need of protection from persecution is now a well established customary international norm which imposes a non-derogable duty on states, even in counter-terrorism situations; it is also an integral part of the rule of law. Such a customary nature seems to be clearly established in a number of ways, including through treaty law; states’ practice in their interactions with those bodies which are especially authorized on these matters (UNHCR Executive Committee); and through independent judicial (IACtHR, ECtHR) and non-judicial (UNCAT, UNHRC) case law and doctrine.

Whilst the customary status of the non-refoulement principle is now clearly established, there are lingering doubts as to whether or not it may similarly be attributed a general jus cogens status; certainly the threshold for recognizing the existence of a customary norm in international law is lower and therefore easier to cross than that of jus cogens. Nonetheless, it could be concluded—at least according to the approach taken by either of the UN bodies (especially UNCAT), and regional human rights courts (in particular the ECtHR)—that the non-refoulement principle enjoys (p. 132) a jus cogens nature in relation to any risk of suffering torture, ill-treatment, extrajudicial execution, or enforced disappearance which may occur as a consequence of return, expulsion, extradition, deportation, rendition transfer, or any other form of involuntary removal as part of a state’s counter-terrorism responses.

Finally, a number of recommendations are made here as to how the existing legal framework may be strengthened:

  1. (1)  When adopting domestic norms regulating the entry by nationals of another state, states must distinguish between immigrants and persons in need of protection. States should, as far as is possible, regulate refuge and immigration through different legal instruments.

  2. (2)  Domestic rules regulating refugees must be respectful of the non-refoulement principle as a consolidated customary norm of international law. Non-refoulement must form the bedrock of any such domestic legislation.

  3. (3)  According to duties arising under the non-refoulement principle, states should refrain from the removal, whatever the means (deportation, expulsion, extradition, return), of any person in need of and entitled to protection under Article 1 Refugee Convention 1951, regardless of their particular status regarding the Convention. They should also refrain from adopting or participating in any system designed to prevent asylum seekers from reaching their territory in order to make an asylum request, a practice which may also amount to refoulement.

  4. (4)  States belonging to either the Inter-American or the European system of protection of human rights must abide by the non-refoulement principle in their counter-terrorism responses as a matter of jus cogens and, therefore, shall respect this erga omnes obligation at all costs. No balance is allowed to be struck between national security and any risk of torture or ill-treatment or punishment.

  5. (5)  As far as the protection of human rights at a universal level is concerned, states should honour obligations identified and declared by those monitoring bodies in which they participate. In particular, they should respect the non-refoulement principle as a matter of erga omnes obligation, at least where there is the risk of torture, ill-treatment or punishment, enforced disappearance, and extrajudicial execution.

  6. (6)  States are strongly called upon to ratify human rights treaties enshrining the non-refoulement principle where they have not already done so.

Footnotes:

European Commission for Democracy Through Law (Venice Commission), ‘Report on Counter-Terrorism Measures and Human Rights’ (4 June 2010) Study No 500/2008 (5 July 2010) 〈http://www.venice.coe.int/site/dynamics/N_Opinion_ef.asp?L=E&OID=500〉 accessed 10 June 2011.

See further KLH Samuel, ‘The Rule of Law Framework and its Lacunae: Normative, Interpretative, and/or Policy Created?’, Chapter 2 of this volume.

International Commission of Jurists, ‘The ICJ Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism’ (adopted 28 August 2004) paras 1–4 (The Berlin Declaration) 〈http://www.medialaw.ru/laws/other_laws/european/Berlin_Declaration.pdf〉 accessed 7 June 2011.

See UNSC, ‘Report of the Secretary General: The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies’ (23 August 2004) UN Doc S/2004/616 para 6; The World Justice Project Rule of Law Index 2010, 2, 8 〈http://worldjusticeproject.org/rule-of-law-index/〉 accessed 20 July 2011.

UN High Commissioner for Refugees (UNHCR), ‘Agenda for Protection’ (26 June 2006) UN Doc A/AC.96/965/Add.1; UNHCR, ‘Refugee Protection and International Migration’ (17 January 2007) Rev.1; UNHCR, ‘Global Consultations on International Protection/Third Track: Refugee Protection and Migration Control: Perspectives from UNHCR and IOM’ (31 May 2001) EC/GC/01/11. See also UNHCR, ‘UNHCR’s Activities in Relation to the Asylum/Migration Nexus’ (4 June 2007) EC/58/SC/CRP.12 Section II(A): Refugee Protection and Mixed Migration: a 10 Point Plan of Action.

See on this problem, in particular in regard to the offence of membership of a terrorist organization, B Saul, ‘Protecting Refugees in the Global “War on Terror”’ (Sydney Law School, Legal Studies Research Paper No 08/130, October 2008) 10–12.

See, for example, EU Directives on asylum and immigration: EU 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 [2004] OJ L304/12; EU Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status [2005] OJ L326/13; and comments by G Gilbert, ‘Is Europe Living Up to Its Obligations to Refugees?’ (2004) 15 EJIL 963; domestic courts’ decisions, such as: Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3, and analysis on the case by OC Okafor and L Okoronkwo, ‘Re-Configuring Non-Refoulement? The Suresh Decision, “Security Relativism”, and the International Human Rights Imperative’ (2003) 15 IJ Refugee L 30.

See further N Mole, ‘Restricted Immigration Procedures in National Security Cases and the Rule of Law: an Uncomfortable Relationship’, Chapter 27 of this volume.

C Harvey, ‘And Fairness for All? Asylum, National Security, and the Rule of Law’ in V Ramraj, M Hor, and K Roach (eds), Global Anti-Terrorism Law and Policy (CUP, Cambridge 2005) 154.

10  Harvey (n 9) 153.

11  Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) (Refugee Convention 1951).

12  Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) (1967 Protocol). The Protocol does not itself amend the Convention, nor does it modify the content of the protection offered by the Convention. Instead it simply modifies the personal scope of the Convention by eliminating the dateline of ‘events occurring before 1 January 1951’ made in Article 1.

13  See ‘Report of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights: Assessing Damage, Urging Action’ (International Commission of Jurists, Geneva 2009) Key Recommendation No 7 166–7 (EJP Report 2009) 〈http://ejp.icj.org/IMG/EJP-Report.pdf〉 accessed 1 April 2011.

14  The Berlin Declaration (n 3) Principle 10, 3.

15  See C Wouters, ‘Reconciling National Security and Non-Refoulement: Exceptions, Exclusion, and Diplomatic Assurances’, Chapter 22 of this volume.

16  Art 1(F) Refugee Convention 1951 reads: ‘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.’

17  Art 33 Refugee Convention 1951 reads: ‘1. 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. 2. 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 being convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.’

18  See, for example, Statement of the Chairman, Mr Chance of Canada (2 February 1950) UN Doc E/AC.32/SR.21, 7.

19  See, for example, the reiterated assertion of the ECtHR in a number of cases, for example: N v Finland (App no 38885/02) (2006) 43 EHRR 12 para 158; Salah Sheekh v Netherlands (App no 1948/04) (2007) 45 EHRR 50 para 135.

20  Universal Declaration on Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR). According to art 14 UDHR: ‘1. Everyone has the right to seek and to enjoy in other countries asylum from persecution. 2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.’ However, an obligation on the part of states to grant asylum is not established.

21  International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) (ICCPR). Art 12(2) ICCPR states: ‘Everyone shall be free to leave any country, including his own’.

22  See JC Hathaway, The Rights of Refugees under International Law (CUP, Cambridge 2005) 301; E Lauterpacht and D Bethlehem, ‘The Scope and Content of the Principle of Non-Refoulement: Opinion’ in E Feller, V Türk, and F Nicholson (eds), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (CUP, Cambridge 2003) 113 para 76.

23  See status of Refugee Convention 1951 〈http://treaties.un.org/pages/ViewDetailsII.aspx?&src=TREATY&mtdsg_no=V∼2&chapter=5&Temp=mtdsg2&lang=en〉 accessed 7 June 2011.

24  As, for example, the ECtHR has stated, contrary to the allegations made by the UK, Portugal, Lithuania, and Slovakia (A v Netherlands (App no 4900/06) judgment of 20 July 2010, not yet reported), as is examined further below.

25  Convention Relating to the International Status of Refugees (adopted 28 October 1933, entered into force 13 June 1935) art 3.

26  See, for example, Declaration on Territorial Asylum, UNGA Res 2312(XXII) (14 December 1967); UNGA Res 37/95 (18 December 1982) UN Doc A/Res/37/95; UNGA Res 48/116 (21 December 1993) UN Doc A/Res/48/116; Cartagena Declaration on Refugees (22 November 1984) OAS/Ser.L/V/II.66, doc 10; OAU Convention Governing the Specific Aspects of Refugee Rights in Africa (adopted 10 September 1969, entered into force 20 June 1974) art 2(3) (OAU Refugee Rights Convention); Charter of Fundamental Rights of the European Union (14 December 2007) [2007] OJ C303/01 art 18; Council Directive (EC) 2004/83 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 [2004] OJ L304/12 Preamble paras 2, 36, art 21; Council Directive (EC) 2005/85 of 1 December 2005 on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status [2005] OJ L326/13 Preamble para 2, arts 20, 27, 36, and Annex II.

27  See UNHCR, ‘Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees’ (16 January 2002) UN Doc HCR/MMSP/2001/09 para 4. See also Council of the International Institute on Humanitarian Law, ‘San Remo Declaration on the Principle of Non-Refoulement’ (September 2001) whose Explanatory Note underlined the fact that in the last-half century, no state had returned a refugee using the argument that refoulement is permissible under contemporary international law; UNHCR, ‘The Principle of Non-Refoulement as a Norm of Customary International Law. Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93’ (31 January 1994) 〈http://www.unhcr.org/refworld/docid/437b6db64.html〉 accessed 7 June 2011; UNHCR, ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol’ 〈http://unhcr.org/refworld/pdfid/45f17a1a4.pdf〉 accessed 8 June 2011; A Duffy, ‘Expulsion to Face Torture? Non-Refoulement in International Law’ (2008) 20 IJ Refugee L 373.

28  North Sea Continental Shelf (Judgment) [1969] ICJ Rep 3 para 77.

29  See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14 para 186. The reasoning was later reaffirmed in Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 64–7.

30  See international and regional resolutions and declarations relating to refugee rights (n 26).

31  See Hathaway (n 22) 364–5.

32  See GS Goodwin-Gill and J McAdam, The Refugee in International Law (3rd edn OUP, Oxford 2007) 228.

33  ‘Executive Order: Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities’ (22 January 2009) 〈http://www.whitehouse.gov/the_press_office/ClosureOfGuantanamoDetentionFacilities/〉 accessed 7 June 2011.

34  Jamal Kiyemba and others v Barack H Obama and others (2011) 563 US.

35  UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) (CAT).

36  International Convention for the Protection of All Persons from Enforced Disappearances (adopted 20 December 2006, entered into force 23 December 2010) (Enforced Disappearances Convention). See too ‘Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime’, UNGA Res 55/25 (15 November 2000) art 14(1); ‘Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementary to the Convention Against Transnational Organized Crime’, UNGA Res 55/25 (15 November 2000) art 19(1).

37  Interestingly too, the prohibition of extradition at risk of violation of fundamental rights of the extradited person or in case of sentence to the death penalty has become usual in international treaties on criminal cooperation, including some on terrorism. See, amongst others, International Convention against the Taking of Hostages (adopted 17 December 1979, entered into force 3 June 1983) art 9; European Convention on Extradition (adopted 13 December 1957, entered into force 18 April 1960) art 3; European Convention on the Suppression of Terrorism (adopted 27 January 1977, entered into force 4 August 1978) art 5; Inter-American Convention on Extradition (adopted 25 February 1981, entered into force 28 March 1992) art 4; ‘UN Model Treaty on Extradition’, UNGA Res 45/116 (14 December 1990) art 3; Council of Europe Convention on the Prevention of Terrorism (adopted 16 May 2005, entered into force 1 June 2007) art 21. As such instruments demonstrate, there has been a clear trend towards establishing an absolute obligation on non-refoulement within more conventional situations of extradition.

38  Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) (adopted 4 November 1950, entered into force 3 September 1953) (ECHR); American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) (ACHR).

39  Prosecutor v Anto Furundzija (Judgment) IT-95–17/1-T10 (10 December 1998) paras 144–54; Al-Adsani v United Kingdom (App no 35763/97) (2002) 34 EHRR 11 paras 60–1.

40  Interestingly, it has been so held by the IACHR in the case of the refoulement of a group of Haitians apprehended on the High Seas (The Haitian Centre for Human Rights and others (United States) IACHR Rep No 51/96, Case No 10.675 (13 March 1997) OEA/Ser.L/V/II.95 Doc. 7 rev. at 550); and also by the ECtHR in the case of two suspects of murder being handed over to Iraqi authorities and later sentenced to death (see Al-Saadoon and Mufdhi v United Kingdom (App no 61498/08) (Admissibility) (2009) 49 EHRR SE11.

41  See, amongst others, HH Koh, ‘The Haitian Centers Council Case: Reflections on Refoulement and Haitian Centers Council’ (1994) 35 Harvard ILJ 30; J Allain, ‘The Jus Cogens Nature of Non-Refoulement’ (2002) 13 IJ Refugee L 533. For a more cautious approach see Lauterpacht and Bethlehem (n 22) 155. On the lack of necessity of a balancing test on safety grounds, as demanded by states, see JC Hathaway and CJ Harvey, ‘Framing Refugee Protection in the New World Disorder’ (2001) 34 Cornell ILJ 257.

42  See UN Commission on Human Rights, ‘Report of the Special Rapporteur on Torture, Mr Theo van Boven’ (26 February 2002) UN Doc E/CN.4/2002/137 para 15; UN Human Rights Council, ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Mr Manfred Nowak’ (5 February 2010) UN Doc A/HRC/13/39/Add.5 para 239.

43  See UNGA, ‘Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism’ UN Doc A/RES/62/263 para 49.

44  See UNHCR, ‘EXCOM Conclusions on International Protection’ No 25 (1982), No 55 (1989), and No 79 (1996) 〈http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?page=search&skip=0&query=Tematic+Compilation+of+Executive+Committee+Conclusions+on+protection&x=13&y=10〉 accessed 10 June 2011.

45  See International Commission of Jurists, ‘Legal Commentary to the ECJ Berlin Declaration, Counter-Terrorism, Human Rights and the Rule of Law’ (Geneva, 2008) 94 〈http://www.icj.org/dwn/database/GenevaCommentary-2011.pdf〉 accessed 10 June 2011.

46  Cartagena Declaration on Refugees (n 26) Conclusion no 5 states: ‘To reiterate the importance and meaning of the principle of non-refoulement (including the prohibition of rejection at the frontier) as a corner-stone of the international protection of refugees. This principle is imperative in regard to refugees and in the present state of international law should be acknowledged and observed as a rule of jus cogens.’ The Cartagena Declaration on Refugees has been considered to be binding on Latin American states and to form the cornerstone of the Inter-American protection system even if, as a declaration of a colloquium, it lacks formal legal binding status. Moreover, the influence of the Declaration has been recognized in some domestic legal orders: either formally (Ecuador, Mexico, Belize); or in practice (Argentina). See R Garretón, ‘“Principio de no Devolución.” Fuerza Normativa, Alcances, Aplicación en los Países no Partes en la Convención’ in UNHCR/IIDH, 10 Años de la Declaración de Cartagena sobre Refugiados: Declaración de San José Sobre Refugiados y Personas Desplazadas: Memoria Coloquio Internacional (IIDH-ACNUR, Costa Rica 1995) 213. See also P Kourula, Broadening the Edges: Refugee Definition and International Protection Revisited (Martinus Nijhoff, The Hague 1997) 276; PCW Chan, ‘The Protection of Refugees and Internally Displaced Persons: Non-Refoulement under Customary International Law?’ (2006) 10 IJHR 231, 239; Organization of American States, ‘Legal Situation of Refugees, Repatriated and Displaced Persons in the American Hemisphere’ (7 June 1991) Res AG/RES.1103 (XXI-0/91).

47  Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980) art 53: ‘Treaties conflicting with a peremptory norm of general international law (“jus cogens”). A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.’

48  Art 19(1) and (3) CAT.

49  Art 22 CAT.

50  Art 21(1) CAT for inter-state communications, and art 22(1) for individual communications.

51  UN Committee Against Torture (UNCAT), ‘General Comment No 1: Implementation of Article 3 of the Convention in the Context of Article 22 (Refoulement and Communications)’ (21 November 1997) UN Doc A/53/44, annex IX. This was merely a short list of important criteria to be applied when evaluating art 22 individual communications. For a general consideration of UNCAT’s 1997 General Comment see J Doerfel, ‘The Convention Against Torture and the Protection of Refugees’ (2005) 24 Refugee Survey Quarterly 83.

52  See UNCAT, ‘General Comment No. 2: Implementation of Article 2 by States Parties’ (24 January 2008) UN Doc CAT/C/GC/2 para 3.

53  UNCAT General Comment No. 2 (n 52) para 5 (emphasis added).

54  Remarking that: ‘The Committee has recognized that “any territory” includes all areas where the State party exercises, directly or indirectly, in whole or in part, de jure or de facto effective control, in accordance with international law.’ UNCAT General Comment No. 2 (n 52) para 16.

55  UNCAT General Comment No. 2 (n 52) para 7.

56  See, for example, UNCAT, Mutombo v Switzerland (Communication No. 13/1993) (27 April 1994) UN Doc A/49/44; UNCAT, Mr Luis Jacino Rocha Chorlango v Sweden (Communication No. 218/2002) (22 November 2004) UN Doc CAT/C/33/D/218/2002; UNCAT, Tahir Hussain Khan v Canada (Communication No. 15/1994) (15 November 1994) UN Doc A/50/44; UNCAT, Ismail Alan v Switzerland (Communication No. 21/1995) (8 May 1996) UN Doc CAT/C/16/D/21/1995; UNCAT, ZZ v Switzerland (Communication No. 34/1995) (29 May 1997) UN Doc CAT/C/18/D/34/1995.

57  See, for example, UNCAT, Mr M.A.M. v Sweden (Communication No. 196/2002) (14 May 2004) UN Doc CAT/C/32/D/196/2002.

58  See UNCAT, Tapia Paez v Sweden (Communication No 39/1996) (28 April 1997) UN Doc CAT/C/18/D/39/1996 para 14.5. Similarly, see UNCAT, Arana v France (Communication No. 63/1997) (5 June 2000) UN Doc CAT/C/23/D/63/1997 para 11.5, which applied the Tapia Paez reasoning. Here the Committee further emphasized the importance of procedural guarantees, including in a context of international cooperation to fight crime.

59  See UNCAT, Agiza v Sweden (Communication No. 233/2003) (20 May 2005) UN Doc CAT/C/34/D/233/2003 para 13.1. For an in depth comment on this decision see S Joseph, ‘Rendering Terrorists and the Convention Against Torture’ (2005) 5 HRLR 339.

60  Agiza v Sweden (n 59) para 13.4. See further on diplomatic assurance Wouters (n 15).

61  Art 40 ICCPR (State Reports) and art 41 (State Communications); First Optional Protocol to the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) (Individual Communications).

62  See UN Human Rights Committee (UNHRC), GT v Austria (Communication No. 706/1996) (4 December 1997) UN Doc CCPR/C/61/D/706/1996. The UNHRC has further established that the possibility for review of deportation decisions is a inherent part of art 7 ICCPR. See UNHRC, Ahani v Canada (Communication No. 1051/2002) (29 March 2004) UN Doc CCPR/C/80/D/1051/2002; and UNHRC, Alzery v Sweden (Communication No. 1416/2005) (25 October 2006) UN Doc CCPR/C/88/D/1416/2005.

63  See UNHRC, Kindler v Canada (Communication No. 470/1991) (30 July 1993) UN Doc CCPR/C/48/D/470/1991; UNHRC, Chitat Ng v Canada (Communication No. 469/1991) (5 November 1993) UN Doc CCPR/C/49/D/469/1991.

64  See UNHRC, ‘General Comment No. 20: Replaces General Comment 7, Concerning Prohibition of Torture and Cruel Treatment or Punishment (Article 7)’ (10 March 1992) UN Doc A/HRI/GEN/1/Rev.9 (Vol I) paras 1, 3.

65  See UNHRC, ‘General Comment No. 29: Derogations from Provisions of the Covenant During a State of Emergency’ (31 August 2001) UN Doc CCPR/C/21/Rev.1/Add.11 para 7.

66  UNHRC, ‘General Comment No. 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (26 May 2004) UN Doc CCPR/C/21/Rev.1/Add.13 para 12.

67  See UNHRC, ‘Concluding Observations of the Human Rights Committee: Canada’ (20 April 2005) UN Doc CCPR/C/CAN/CO/5 para 15; UNHRC, ‘Concluding Observations of the Human Rights Committee: Thailand’ (8 July 2005) UN Doc CCPR/CO/84/THA para 17; UNHRC, ‘Concluding Observations of the Human Rights Committee: Uzbekistan’ (4 April 2005) UN Doc CCPR/CO/83/UZB para 12; UNHRC, ‘Concluding Observations of the Human Rights Committee: United States of America’ (18 December 2006) UN Doc CCPR/C/USA/CO/3/Rev.1 para 16; UNHRC, ‘Concluding Observations of the Human Rights Committee: Ukraine’ (28 November 2002) UN Doc CCPR/C/UKR/CO/76/EGY para 16.

68  Art 22(7) ACHR states: ‘Every person has the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses or related common crimes.’

69  Art 22(8) ACHR states: ‘In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions.’

70  Inter-American Convention to Prevent and Punish Torture (adopted 9 December 1985, entered into force 28 February 1987).

71  See further C Cerna, ‘The Role and Legal Framework of the Inter-American Commission on Human Rights in Securing Justice for Victims’, Chapter 30, and S García Ramírez, ‘The Inter-American Court of Human Rights’ Perspective on Terrorism’, Chapter 29, of this volume.

72  See IACHR, ‘Special Rapporteur for Migrant Workers, Second Report of the Work in Progress of the Rapporteurship on Migrant Workers and their Families’ (16 April 2002) OEA/Ser./L/V/II.111, 27.

73  See IACHR, ‘Report on the Situation of Human Rights of Asylum Seekers Within the Canadian Refugee Determination System’ (2000) para 61 〈http://www.cidh.org/countryrep/canada2000en/canada.htm〉 accessed 8 June 2011.

74  See IACHR, ‘Report on Terrorism and Human Rights’ (22 October 2002) OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr. para 392.

75  See further on this C Sandoval, ‘A Critical View of the Protection of Refugees and IDPs by the Inter-American System of Human Rights: Re-Assessing its Powers and Examining the Challenges for the Future’ (2005) 17 IJ Refugee L 43.

76  See The Haitian Centre for Human Rights and others (n 40) paras 154–7.

77  See ‘Juridical Condition and Rights of Undocumented Migrants’ (Advisory Opinion OC-18/03) IACtHR Series A No 18 (17 September 2003), Concurring Opinion of Judge AA Cançado Trindade paras 41–2, 69, 72.

78  See especially Mole (n 8); and E Myjers, ‘Human Rights and the Fight against Terrorism: Some Comments on the Case Law of the European Court of Human Rights ’, Chapter 28 of this volume.

79  See Chahal v United Kingdom (App no 22414/93) (1997) 23 EHRR 413 para 80. Similarly, on this broader scope, see N v Finland (n 19) 159; Saadi v Italy (App no 37201/06) judgment of 28 February 2008, not reported, para 138.

80  See Salah Sheekh v Netherlands (n 19) para 135; Hilal v United Kingdom (App no 45276/99) (2001) 33 EHRR 2 para 59; Muslim v Turkey (App no 53566/99) (2006) 42 EHRR 16 para 66.

81  Specifically, the ECtHR has stated that the fact that the applicant may have committed an offence relating to terrorism is not a relevant factor when it comes to any infringements of or limitations to this absolute prohibition. See, for example, Assenov and others v Bulgaria (App no 24760/94) (1999) 28 EHRR 652 para 93; Aksoy v Turkey (App no 21987/93) (1997) 23 EHRR 553; Chahal v United Kingdom (n 79) para 79; Aktas v Turkey (App no 24351/94) (2004) 38 EHRR 18 para 310; and Saadi v Italy (n 79) para 138.

82  Chahal v United Kingdom (n 79) para 80; N v Finland (n 19) 159; Saadi v Italy (n 79) para 138.

83  See Saadi v Italy (n 79) para 125.

84  Saadi v Italy (n 79) para 139.

85  Shamayev and others v Georgia and Russia (App no 36378/02) judgment of 12 April 2005, not reported, paras 381–5.

86  See N Mole, Asylum and the European Convention on Human Rights (Council of Europe Publishing, Strasbourg 2008).

87  See Harvey (n 9) 156–7.

88  See UNGA, ‘In Larger Freedom: Towards Development, Security and Human Rights for All: Report of the Secretary-General’ (2005) UN Doc A/59/2005 paras 18 and 22.