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The exception in article 33(2)
During the drafting process, many states considered it necessary to include exceptions to the prohibition on refoulement. The main reason appears to have been concerns for national security. The UK representative remarked that it ”must be left to states to decide whether the danger entailed to refugees by expulsion outweighs the menace to public security that would arise if they were permitted to stay.”24 This reference to proportionality gained support from several states, and like the UK representative pointed out, if no exceptions were allowed, states might be less keen to accept the principle, not least since no reservations were allowed.25 The French representative warned against “undesirable elements” who might abuse an absolute right not to be refouled. States would “think twice before granting an unconditional right”, it was argued.26 The same representative also suggested that an unconditional obligation towards “undesirable elements” would create a problem of “moral and psychological” character, and stressed that the possible reactions of public opinion had to be considered.27 Already in 1951 did States reference a changing global environment that called for realism; the Canadian representative claimed that since the Ad Hoc Committee had drafted the non-refoulement – three years prior – the “international situation had deteriorated”, and because of that it had to be recognized that an unconditional prohibition on refoulement would be unacceptable to many governments.28 As a result of these considerations, article 33(2) provides that the benefit of protection from refoulement may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.
Non-refoulement in human rights law
In international human rights law, the principle of non-refoulement is considered an implied, inherent part of the absolute prohibition on torture and ill-treatment. Non-refoulement provisions are for example found explicitly in article 3 CAT,30 and implicitly in article 7 ICCPR.31 Regionally it is also found in, for instance, article 3 ECHR,32 which provide that ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment’. Because these measures are prohibited in absolute terms, so is the correlative prohibition on non-refoulement. 33 The right to not be refouled is not tied to a persecution ground under human rights law, and therefore the personal scope is wider. Since there is no individual complaints mechanism in relation to the Refugee Convention, individuals facing deportation who wish to complain internationally must choose the human rights provisions and turn to, primarily, the Torture Committee or the ECtHR.34 It is not surprising then, that it is these two bodies that are responsible for the bulk of the jurisprudence regarding the principle of non-refoulement, and consequently are most experienced in assessing non-refoulement related cases.35 Being only implicit in the treaty texts, in a human rights context the concept is best understood through the adjudication of these complaints mechanisms. Because the Torture Committee’s decisions are not binding on the State parties, in contrast to the judgements of the ECtHR, most attention will be directed at the latter, which is also regarded as the chief vanguard of interpretating the principle of non-refoulement under human rights law.
Non-refoulement in human rights jurisprudence
The first time the ECtHR confirmed that the absolute prohibition on torture or inhuman or degrading treatment or punishment in article 3 contained a corresponding prohibition on refoulement, and therefore applied in expulsion cases, was in its seminal 1989 case Soering v United Kingdom. The ECtHR proclaimed that: ”it would hardly be compatible with the underlying values of the Convention, (…) were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed.”
The case concerned a German citizen who had killed his girlfriend in the United States and then fled to the UK. The court concluded that were the UK to expel him to the US, where a death sentence and a prolonged period on “death row” awaited, article 3 would be breached. The time on “death row”, the Court stated, would amount to torture or inhuman or degrading treatment or punishment, and actively contributing to such treatment – including by forcibly deporting someone – is prohibited by article 3 in absolute terms, “however heinous the crime”.38 This German citizen was indeed a fugitive of justice, the type of person who the drafters of the Refugee Convention’s exclusion clauses, as will be shown in chapter 3, were unwilling to afford protection to.
The ECtHR has reaffirmed its position on non-refoulement numerous times since Soering. Another significant case is Chahal v United Kingdom, where the Court emphasized again the absolute nature of the prohibition provided by article 3 in expulsion cases, even in the event of terrorism and threats to national security. The UK Government argued that the deportation in question was necessary and proportionate given the threat Mr. Chahal – a Sikh separatist – presented to national security of the UK.39 While acknowledging the “immense difficulties faced by States in modern times in protecting their communities from terrorist violence”, the Court did not accept the Governments argument.40 If there are substantial grounds for believing that an expelled individual would face a real risk of torture or ill-treatment contrary to article 3 in the receiving state, then state parties to the ECHR are obligated by virtue of that article to protect him or her from such treatment.41 Since the prohibition of torture or ill-treatment is just as absolute in expulsion cases, “the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration.”42 The court also concluded that the protection afforded by Article 3 is thus wider than that provided by article 33(2) of the Refugee Convention.43 The same conclusion – that the conduct of the expellee or the danger he or she poses is immaterial – was reached by the Torture Committee in, for instance, Paez v Sweden.
Interpretation of ill-treatment under ECHR
It is well-established that the ECHR is a “living instrument which must be interpreted in the light of present-day conditions”.49 Regarding torture and ill-treatment, the Court stated in Selmouni v France that “certain acts which were classified in the past as ‘inhuman and degrading treatment’ as opposed to ‘torture’ could be classified differently in future.”50 The Court recognized that the “increasingly high standard being required in the area of the protection of human rights and fundamental liberties” affect the assessment of when such rights and liberties have been breached.51 The bar for human rights is continuously raised, resulting in the correct notion that what constitutes ill-treatment today might amount to torture tomorrow and, correspondingly, treatment that is not considered inhuman or degrading today might qualify as such tomorrow. We continuously except more of our governments’ conduct, and the tolerance for human rights violations is likewise lowered.
Having noted the evolutive nature of human rights generally, what kind of treatment constitutes inhuman or degrading treatment today, according to the ECtHR? The Court has stated that article 3 does not relate to all possible instances of ill-treatment; a “minimum level of severity” must be reached, and such an assessment is relative and depends on all the circumstances of the case, such as “duration of the treatment, its physical and mental effects and, in some cases, the sex, age, and state of health of the victim.”52 While it is beyond the scope of this thesis to account for the exact nature of ill-treatment under article 3 ECHR, it will highlight three cases which have expanded the understanding of the type if treatment that is contrary to article 3. The cases concern, respectively, risks of serious illness, generalized violence, and material deprivation. In Paposhvili v Belgium, the Court famously reiterated that article 3 can preclude removal of aliens suffering from a serious illness that risk being exacerbated by the expulsion.53 The threshold, though, is incredibly high. The Court stated that the consequence of removal must be that the individual face “a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy.”54 In Sufi & Elmi v The United Kingdom, the Court reiterated that “in the most extreme cases” a situation of general violence could be of sufficient intensity so as to create a risk of treatment contrary to article 3 for everyone present.55 After careful considerations of all the facts in the case, which regarded removal to Mogadishu, Somalia, the Court concluded that the violence in Mogadishu was of such a level of intensity “that anyone in the city, except possibly those who are exceptionally well-connected to ‘powerful actors’, would be at real risk of treatment prohibited by article 3.”56 It also concluded that the conditions in the country’s refugee and IDP57 camps were so dire that staying in such a camp amounted to treatment contrary to article 3.
The relationship between refugee law and human rights law
Human rights law and refugee law overlap both in substance, purpose, and reality. ”On the one hand, human rights violations can lead to refugee flows and, on the other, refugees have human rights.”64 It is perhaps not surprising then that the relationship between the human rights treaties’ and the Refugee Convention’s provisions on non-refoulement isn’t normally regarded as one of conflict, but rather as one of mutual assistance; States’ non-refoulement obligations under human rights law is complementary to the protection afforded by article 33(1) of the Refugee Convention.65 The UNHCR Executive Committee has stated that international treaty obligations which prohibit refoulement are important protection tools to address the protection needs of people who are of concern to the UNHCR, but who are not Convention refugees according to the definition in article 1(A).66 This is unsurprising as both human rights treaties and the Refugee Convention have a humanitarian purpose and share the objective of protecting people from harm. As Costello puts it: “the vitality and evolutionary interpretation of human rights law can be used to invigorate refugee law” and that “human right’s superior enforcement mechanisms provide refugee law with both added clout and greater dynamism.”67 Indeed, the substantive overlap is clear, since what’s at risk in cases of refoulement is the returnee’s full enjoyment of human rights, such as the right to life, liberty and security of person, and freedom from torture.68 Chetail claims that the interaction between human rights law and refugee law is so dense that it is “virtually impossible to separate one from the other”.69 While not unchallenged, he suggests that refugee law has effectively been absorbed by human rights law which has now become the primary source of refugee protection.70 Since the relationship isn’t really one of conflict, the question of which of the horizontal treaty obligations prevails or how to solve issue of the concurring obligations is rarely raised.71 However, for the purpose of this thesis, the relationship between the two divergent notions of non-refoulement warrants attention, because upon closer examination, the relationship is rather complex. 2.3.1 General notes on the hierarchy between conflicting horizontal treaty obligations As shown above, the Refugee Convention permits exceptions to the prohibition on refoulement through art. 33(2), while human rights treaties do not. For States that are parties to both the Refugee Convention and one or several of the human rights treaties, which of the two conflicting rules prevail? Treaties generally trumps customary law, on account of them being the most recent, specific, and authentic representation of the will and consent of the States in question. 72 This is an expression of the principle lex specialis derogat legi priori; a special law repeals a general law.73 When States have conflicting obligations arising from the same source of law, in this case treaties, the principle of lex posterior derogat priori applies; a later law repeals an earlier law.74 All human rights treaties mentioned above came into force after the Refugee Convention. Therefore, it might be argued that their provisions on non-refoulement should take primacy on account of being lex posterior. However, in regards to refugee claims, the Refugee Convention is lex specialis – it deals specifically with refugee protection – and would trump general human rights treaties on that account.75 That said, Yi/Li maintains that once other instruments provide better protection, these instruments supersede the Refugee convention.76 Indeed, article 5 of the Refugee Convention provide that “nothing in this convention shall be deemed to impair any rights and benefits granted by a Contracting state to refugees apart from this Convention”. This is confirmed by the UNHCR, which has stated that the provision of article 33(2) in the Refugee Convention does not affect State’s non-refoulement obligations under international human rights law.
Table of contents :
1.2 Purpose and research question
1.4 Method and material
2. THE CONCEPT OF NON-REFOULEMENT IN INTERNATIONAL LAW
2.1 The Refugee Convention
2.1.1 The exception in article 33(2)
2.2 Non-refoulement in human rights law
2.2.1 Non-refoulement in human rights jurisprudence
2.2.2 Interpretation of ill-treatment under ECHR
2.4 Customary law – State practice and opinio juris
3. PERSONS UNDESERVING OF PROTECTION: THE EXCLUSION CLAUSES IN ARTICLE 1F OF THE REFUGEE CONVENTION
3.1 The background and purpose of the exclusion clauses
3.2 Grounds for exclusion in Article 1F
3.2.1 1F(a) – international crimes
3.2.2 1F(b) – serious non-political crimes
126.96.36.199 The temporal and geographical limitation
3.2.3 1F(c) – acts contrary to the purposes and principles of the UN
3.3 Article 1F in relation to cancellation and revocation of refugee status .
3.4 The relationship between Articles 1F and 33(2)
3.5 A clash between refugee law and human rights law
4. EFFECTS OF UNDESIRABLE BUT UNREMOVABLE REFUGEES .
4.1 A note on the volume of the problem
4.2 Current State responses
4.2.1 Canada & Australia
4.3. Effects on individual level – legal limbo
4.4 A questionable revocation of refugee status
4.5 Effects on the State – providing a “safe haven”? Unreturnable refugees and prosecution
4.5.1 Exclusion and prosecution – the main concerns
4.5.2 A safe haven?
4.6 Effects on the integrity of refugee law
5 POSSIBLE SOLUTIONS
5.1 Temporary residence permits to avoid legal limbo
5.2 Decreasing the number of unreturnables through diplomatic assurances
5.3 Using administrative detention to address serious threats to national security and public safety
5.4 Challenging the nature of the principle of non-refoulement
6.1 The principle of non-refoulement should be absolute in nature
6.2 The principle of non-refoulement should cover ill-treatment
6.3 Securitization, broad definitions of criminality and the expansion of exclusion is more alarming than the expansion of non-refoulement
6.4 Judicial review and procedural safeguards might be most important.