International Legal Standards for the Protection from Refoulement

Transcription

1 International Legal Standards for the Protection from Refoulement

2 Distribution for the UK: Hart Publishing Ltd. 16C Worcester Place Oxford OX1 2JW UK Tel.: Fax: Distribution for Switzerland and Germany: Schulthess Verlag Zwingliplatz 2 CH-8022 Zürich Switzerland Tel.: Fax: Distribution for the USA and Canada: International Specialized Book Services 920 NE 58th Ave Suite 300 Portland, OR USA Tel.: (toll free) Tel.: Fax: info@isbs.com Distribution for other countries: Intersentia Publishers Groenstraat 31 BE-2640 Mortsel Belgium Tel.: Fax: 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 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 Instituut voor Immigratierecht 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.

3 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 uur door Cornelis Wolfram Wouters geboren te s-hertogenbosch in 1970

4 Promotor: Overige leden: Prof. mr. P. Boeles Prof. mr. drs. B.P. Vermeulen (Vrije Universiteit Amsterdam) Prof. mr. T. Barkhuysen Prof. dr. R.A. Lawson Prof. mr. T.P. Spijkerboer (Vrije Universiteit Amsterdam)

5 We believe that human rights transcend boundaries and must prevail over state sovereignty José Ramos-Horta

6

7 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-

8 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 Colombo 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 University 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,

9 Table of Contents List of Abbreviations and Acronyms XIX 1 Introduction Introduction to the study Objective of the study Research questions Methodology of and sources for the study Scope and limitations of the study Structure of the book Relevant general principles of human rights treaties The interpretation of human rights treaties General rules of treaty interpretation Interpretation of human rights treaties The role of international monitoring or supervisory bodies Individual human rights and the obligations of States The personal, territorial and extra-territorial scope of human rights treaties Personal scope Territorial scope Extra-territorial scope a Effective control over foreign territory b Attribution of conduct Reservations and declarations made to international human rights treaty provisions General remarks on the prohibition on refoulement The concept of asylum The concept of refoulement The harm from which a person is protected The element of risk National protection a Internal protection alternative b Diplomatic assurances to guarantee safety The absolute or non-absolute character of the prohibition on refoulement The character and content of the States obligations deriving from the prohibition on refoulement Extradition and a conflict of treaty obligations 30

10 X Table of Contents Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees Introduction Prohibition on refoulement under the Refugee Convention A brief introduction to the Refugee Convention Object and purpose Content and structure Reservations and declarations International sources for the interpretation of the Refugee Convention The United Nations High Commissioner for Refugees (UNHCR) a UNHCR Documentation The Executive Committee of the High Commissioner s Programme Personal and (extra-)territorial scope of Article 33 of the Refugee Convention Personal scope The territorial and extra-territorial scope of Article 33(1) of the Refugee Convention The content of the prohibition on refoulement under Article 33 of the Refugee Convention 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 Persecution a Persecution as a crime contained in the ICC Statute and ICTY Jurisprudence b Prosecution and punishment amounting to persecution Persecution reasons a Race b Religion c Nationality d Membership of a particular social group e Political opinion f Perceived or attributed persecution grounds Being persecuted for reasons of Actors of persecution The element of risk Defining the risk: a well-founded fear a Objectivity and prospectivity b Individualisation, mass influx and group persecution c Required facts and circumstances to meet the necessary level of risk d Refugees sur place Standard and burden of proof a Issues of credibility b Issues of evidence c Burden of proof d Special considerations for children and women 98

11 Table of Contents XI At what point in time must the risk be assessed? Protection from the country of origin (national protection) a Internal protection alternative b Diplomatic assurances to guarantee safety Exceptions to the right to be protected from refoulement Danger to the country of refuge or its community (Article 33(2) of the Refugee Convention) a Danger to the national security b Danger to the community Exclusion from refugee protection: Article 1D and E of the Refugee Convention a Article 1D of the Refugee Convention b Article 1E of the Refugee Convention Exclusion from refugee status: Article 1F of the Refugee Convention a Article 1F(a): crimes against peace, war crimes and crimes against humanity b Article 1F(b): Serious non-political crimes c Article 1F(c): acts contrary to the purposes and principles of the United Nations d Individual responsibility for excludable acts and the standard and burden of proof e Considerations of proportionality Provisional measures under Article 9 of the Refugee Convention The character and contents of State obligations deriving from the prohibition on refoulement under Article 33 of the Refugee Convention Negative obligations Prohibition on removal a Safe countries of origin Prohibition on extradition Prohibition on rejection at the frontier and beyond Prohibition on indirect refoulement and the concept of safe third countries a Safe third countries b Agreements to allocate responsibility and readmission agreements Positive obligations Obligation to admit (a right to enter and remain) a Obligations on refugees at sea: interception and rescue at sea Temporary protection in situations of mass influx Obligation to grant a residence permit Substantive rights granted to refugees Obligations in the context of voluntary repatriation Obligations after removal Procedural safeguards a The initial determination procedure 164

12 XII Table of Contents b Accelerated procedures c Appeal procedures d Suspensive effective of proceedings to determine refugee status e Additional procedural safeguards for the expulsion of lawful refugees (Article 32 of the Refugee Convention) Conclusion European Convention for the Protection of Human Rights and Fundamental Freedoms Introduction Prohibition(s) on refoulement under the European Convention on Human Rights Brief introduction to the European Convention on Human Rights Object and purpose Content and structure Reservations and declarations International sources for interpretation of the European Convention on Human Rights The role of the European Court of Human Rights and the status of its decisions a Individual applications b Inter-State cases c Advisory opinions The role of the Committee of Ministers of the Council of Europe The role of the Secretary General of the Council of Europe The role of the former European Commission of Human Rights Rules of interpretation of the European Convention on Human Rights Personal and (extra-)territorial scope of the European Convention on Human Rights, in particular with respect to the prohibition on refoulement Personal scope Territorial and extra-territorial scope of the European Convention on Human Rights Territorial scope Extra-territorial scope a Effective overall control over foreign territory b Attribution of conduct to the State and control over a person and his rights The relevance of the territorial and extra-territorial scope of the Convention for protection from refoulement The content of the prohibition on refoulement under Article 3 of the European Convention on Human Rights The harm from which a person is protected: torture and inhuman or degrading treatment or punishment Torture as defined outside the context of refoulement a Perpetrators of torture 225

13 Table of Contents XIII Inhuman and degrading treatment or punishment as defined outside the context of refoulement a Perpetrators of inhuman and degrading treatment or punishment Proscribed ill-treatment in the context of refoulement a Defining the ill-treatment b State versus non-state perpetrators of ill-treatment c Situations in the country of origin amounting to ill-treatment The element of risk Defining the risk: a real personal foreseeable risk a Prospectivity and objectivity b Individualisation: an element of comparison? c Membership of a particular group d Facts and circumstances required to meet the necessary level of risk e Risk sur place The standard and burden of proof a Issues of credibility and plausibility b Issues of evidence (in support of the claim) c Burden of proof Cases in which a different standard of risk applies At what point in time must the risk be assessed? The role of the European Court of Human Rights in the risk assessment Protection from the country of origin (national protection) a Internal protection alternative b Diplomatic assurances to guarantee safety c The country of origin is a State party to one or more human rights treaties The absolute character of the prohibition on refoulement The character and contents of State obligations deriving from the prohibition on refoulement under Article 3 of the European Convention on Human Rights Negative obligations Prohibition on removal Prohibition on extradition Prohibition on indirect refoulement Prohibition on rejection at the frontier and beyond (including the open sea) Positive obligations Obligation to admit (a right to asylum, to enter and to remain) Obligations after removal Obligation to install procedural safeguards a The initial determination procedure b Appeal procedures: effective legal remedies offered by Article 3 in conjunction with Article

14 XIV Table of Contents c Additional procedural safeguards for the expulsion of lawfully resident aliens (Article 1 Protocol 7 ECHR) d Applicability of Article 6(1) Other prohibitions on refoulement under the European Convention on Human Rights Non-derogable provisions, in particular Articles 2, 1 of Protocol No. 6 and 1 of Protocol No Article 6, the right to a fair trial Other provisions, in particular Articles 5, 8 and Conclusion International Covenant on Civil and Political Rights Introduction Prohibition(s) on refoulement under the ICCPR Brief introduction to the ICCPR Object and purpose Content and structure Reservations and declarations International sources for interpretation of the ICCPR The Human Rights Committee a The monitoring tools of the Human Rights Committee b The status of the Committee s views Rules of interpretation of the ICCPR Personal and (extra-)territorial scope of the ICCPR, in particular with respect to the prohibition on refoulement Personal scope Territorial and extra-territorial scope of the ICCPR Territorial scope Extra-territorial scope The relevance of the territorial and extra-territorial scope of the ICCPR for the prohibition on refoulement The content of the prohibition on refoulement under Articles 6 and 7 of the ICCPR The harm from which a person is protected Death penalty and the death row phenomenon a Death penalty b Death row phenomenon Arbitrary deprivation of life Torture and other cruel, inhuman or degrading treatment or punishment a Torture under the ICCPR and CAT Harm from which a person is protected in the context of refoulement a Defining the harm in the context of refoulement b State versus non-state perpetrators of the harm 391

15 Table of Contents XV The element of risk Defining and determining the risk Standard and burden of proof a Burden of proof At what point in time must the risk be assessed? The role of the Human Rights Committee in the risk assessment Protection from the country of origin (national protection) a Internal protection alternative b Diplomatic assurances to guarantee safety The absolute character of the prohibition on refoulement The character and contents of States obligations deriving from the prohibition on refoulement under Articles 6 and 7 of the ICCPR Negative obligations Prohibition on removal Prohibition on extradition Prohibition on indirect refoulement Prohibition on rejection at the frontier and beyond Positive obligations Obligation to admit (a right to enter and remain) Obligations after removal Obligations to install procedural safeguards a The initial determination procedure b Appeal procedures: effective legal remedies offered by Article 2(3) of the ICCPR c Additional procedural safeguards for the expulsion of lawful aliens (Article 13 ICCPR) d Applicability of Article 14(1) ICCPR Other prohibitions on refoulement under the ICCPR Conclusion Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Introduction Prohibition(s) on refoulement under the Convention against Torture Brief introduction of the Convention against Torture Object and purpose Content and structure Reservations and declarations International sources for interpretation of the Convention against Torture The Committee against Torture a The monitoring tools of the Committee against Torture b The status of the Committee s views c Individual applications Rules of interpretation of the Convention against Torture 433

16 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 Personal scope Territorial and extra-territorial scope of Article 3 of the Convention against Torture The content of the prohibition on refoulement under Article 3 of the Convention against Torture The harm from which a person is protected: torture as defined in Article 1 of the Convention against Torture Acts which cause severe physical or mental pain or suffering Intention Purpose Infliction, instigation, consent or acquiescence of a public official a The absence of a State authority Public officials or others acting in an official capacity Exclusion of pain or suffering arising from lawful sanctions Victims of torture The element of risk Defining the risk a Prospectivity and objectivity b Individualisation and membership of a particular group c Required facts and circumstances to meet the necessary level of risk d Personal facts and circumstances e General human rights situation f Risk sur place g Assessing the personal facts in light of the general situation The standard and burden of proof a Issues of credibility and plausibility b Issues of evidence (in support of the claim) c Burden of proof At what point in time must the risk be assessed? The role of the Committee against Torture in the risk assessment Protection from the country of origin (national protection) a Internal protection alternative b Diplomatic assurances to guarantee safety c The country of origin is a State party to one or more human rights treaties The absolute character of the prohibition on refoulement The character and contents of State obligations deriving from the prohibition on refoulement under Article 3 of the Convention against Torture Negative obligations Prohibition on removal Prohibition on extradition 506

17 Table of Contents XVII Prohibition on rejection at the frontier and beyond Prohibition on indirect refoulement and the concept of safe third countries Positive obligations Right to asylum, right to enter and right to remain Obligations after removal Obligation to install procedural safeguards a The initial determination procedure b Appeal procedures: effective legal remedies offered by Article Article 16 of the Convention against Torture Conclusion Prohibitions of refoulement in international law compared Introduction Prohibitions on refoulement as part of international human rights law Supervising the implementation and enforcement of the prohibition on refoulement Personal and (extra-)territorial scope of the prohibition on refoulement Personal scope Territorial and extra-territorial scope of the prohibition on refoulement The content of the prohibitions on refoulement The harm from which a person is protected Torture Other cruel, inhuman or degrading treatment or punishment 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 The actors of the harm or the source of the risk The element of risk Defining the risk a Prospectivity b Objectivity c Individualisation, singled out and indiscriminate violence d Membership of a particular group or group persecution e Required facts and circumstances to meet the necessary level of risk f Risk sur place Standard and burden of proof a Issues of credibility b Issues of evidence c Burden of proof Time of assessing the risk Protection from the country of origin (national protection) a Internal protection alternative b Diplomatic assurances to guarantee safety Absolute protection or exceptions 563

18 XVIII Table of Contents 6.4 The character and content of States obligations deriving from the prohibitions on refoulement Negative obligations Prohibition on removal Prohibition on extradition Prohibition on indirect refoulement a Safe third countries Prohibition of rejection at the frontier and beyond Positive obligations Obligation to admit (a right to asylum, enter and remain) Obligations after removal Obligations to install procedural safeguards a The initial determination procedure b Appeal procedures c Right of due process d Procedural safeguards limited to lawfully present aliens Overall concluding remarks 577 Samenvatting (Summary in Dutch) 579 Bibliography 591 Index 629 Curriculum Vitae 639

19 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

20 XX List of Abbreviations and Acronyms ICESCR ICJ ICLQ ICRC ICTY IDP IJRL ILC JICJ JV KDP LTTE MoU NAV NCB NILR NJCM-Bulletin OAU PKK PUK Refugee Convention Refugee Protocol Res. UDHR UN GA UNESCO UNHCR UNHCR Handbook UNRWA UNTS UN SC International Covenant on Economic, Social and Cultural Rights International Court of Justice International and Comparative Law Quarterly International Committee for the Red Cross International Criminal Tribunal for the Former Yugoslavia Internally Displaced Person International Journal of Refugee Law International Law Commission Journal of International Criminal Justice Jurisprudentie Vreemdelingenrecht Kurdistan Democratic Party Liberation Tigers of Tamil Eelam Memorandum of Understanding Nieuwsbrief Asiel- en Vluchtelingenrecht Nederlands Centrum Buitenlanders Netherlands International Law Review Nederlands Juristen Comité voor de Mensenrechten-Bulletin Organisation of African Unity Partiya Karkerên Kurdistan (Kurdistan Workers Party) Patriotic Union of Kurdistan Convention relating to the Status of Refugees Protocol relating to the Status of Refugees Resolution Universal Declaration of Human Rights United Nations General Assembly United Nations Educational, Scientific and Cultural Organisation United Nations High Commissioner for Refugees UNHCR Handbook on Procedures and Criteria for Determining Refugee Status United Nations Relief and Works Agency for Palestine Refugees in the Near East United Nations Treaty Series United Nations Security Council