NON-REFOULEMENT

Observers have highlighted the ‘increased recourse by refugee advocates to the human rights treaty bodies’.³⁰¹ This is linked to the absence of an individual complaints mechanism under the 1951 Convention Relating to the Status of Refugees (Refugee Convention) which leads to such applications under UN human rights treaties, in particular the HRC and CAT.

The ICCPR does not have an article which mentions explicitly refoulement or refugee protection, but this has been interpreted in particular under the Article 6 right to life and Article 7 prohibition of torture.³⁰² Thus, in H.A. v Denmark (2018),³⁰³ the author challenged his deportation to Afghanistan on the grounds, inter alia, that ‘he belongs to the Hazara minority, which is under attack from the Taliban, who are mainly ethnic Pashtuns’.³⁰⁴ Denmark contested the relevance of his minority status: ‘The State party finds that the fact that the author is an ethnic Hazara from the Wardak Province cannot in itself justify his entitlement to international protection. In this connection, the State party submits that, according to the information available, there is a large minority of ethnic Hazaras in the Wardak Province and that they are not at risk of being subjected to abuse falling within article 7 of the Covenant solely due to their ethnic affiliations.’³⁰⁵ The Committee did not find a violation of the Covenant. It appeared to largely agree with the State Party’s assessment that ‘the fact that the author is an ethnic Hazara from the Wardak Province cannot in itself justify his entitlement to international protection’.³⁰⁶ He had failed to show ‘a personal and real risk of treatment’ contrary to Article 7 ICCPR. Similarly, in B.B. v Sweden (2021),³⁰⁷ the author contested his deportation to Afghanistan including on the grounds that ‘the risk of persecution would be aggravated by factors of vulnerability such as the fact that he belongs to the Hazara ethnic minority group’.³⁰⁸ This communication was successful in disclosing a violation of the Covenant, although the minority aspect was not decisive with other personal factors creating a real risk that was not adequately assessed by the State Party.³⁰⁹

In A.A.S. v Denmark (2016),³¹⁰ the author’s minority status was significant in upholding his deportation to Somalia as a violation of the ICCPR. He belonged to ‘an oppressed minority clan named Bagadi’, and during the civil war in Somalia, larger clans had oppressed the minority clans in the country.³¹¹ The Committee observed that reports concerning the human rights situation in Somalia ‘indicate that abuse of and discrimination against minority clans are widespread’, with clan militias and al-Shabaab continuing to commit grave abuses throughout the country.³¹² His status as a member of a vulnerable minority clan was one of a number of cumulative factors that would put him at a real risk of irreparable harm in breach of Article 7 ICCPR.³¹³ In general, minority status is not in and of itself sufficient for contesting deportation under Article 7, but it can be an important factor in setting out a real risk of persecution.

The individual communications procedure before the Committee Against Torture (CAT) provides the highest volume of caselaw after the ICCPR, with the Committee having made almost 500 decisions on the merits. Many of these communications engage non-refoulement, expressly prohibited under Article 3 UN CAT in which ‘no State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.’ As North and Chia observe: ‘Indeed, most cases before the Committee against Torture now involve asylum-seekers’.’³¹⁴ As with the ICCPR, the communications in relation to non-refoulement include minority or Indigenous status as increasing the risk of torture.

Thus, in L.E.M. v Switzerland (2024),³¹⁵ the complainant argued against his deportation to Cameroon given that ‘the indications of personal risk that he faces may include his ethnic origin’.³¹⁶ In N.R. v Sweden (2023),³¹⁷ the appeal against deportation related to the status of the claimant as a member of Afghanistan’s Christian minority.³¹⁸ In H.U. v Finland (2024),³¹⁹ the indications of personal risk of deporting the applicant to the Democratic Republic of the Congo included the complainant’s ethnic background.³²⁰ However, membership of an ethnic group alone is clearly not sufficient to trigger the non-refoulement obligation. In S.A.S. v Australia (2017),³²¹ involving a Tamil applicant contesting a decision to deport him to Sri Lanka, the State Party’s contention that there was no real chance that the applicant would be subjected to serious harm amounting to persecution just because he is of Tamil ethnicity was largely upheld; the individual must be found to be personally at risk of such treatment.³²² In X and Z v Finland (2014),³²³ two brothers claimed that their deportation to the Islamic Republic of Iran would constitute a breach of Article 3. They were of Kurdish ethnicity and members of the opposition party Komala. In considering the complaints, the Committee examined medical reports evidencing that they might have been subjected to torture in the past. It also examined submissions on the general human rights situation in Iran. Specifically, the Committee gave weight to recent reports of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran regarding the persecution and execution of members of opposition political parties, such as Komala, and of individuals of Kurdish ethnicity.³²⁴ The Committee concluded that there were substantial grounds for believing that the complainants risked being subjected to torture if returned to Iran.

The issue of non-refoulement under Article 3 UN CAT has arisen also in an Indigenous context. In Flor Agustina Calfunao Paillalef v Switzerland (2020),³²⁵ the author, subject to a deportation order from Switzerland, was a member of the Mapuche Indigenous people ‘asserting its rights to its traditional territory in the face of timber, hydroelectric and mining concessions granted by Chile to domestic and international companies, road construction without the consent of the Indigenous people and the occupation of the land by large non-Indigenous landowners’.³²⁶ The case is notable for its expansive detail on the situation of the Mapuche. The communication noted how the demands of the Mapuche are being met with ‘violent reactions both from the Chilean authorities, including the militarized police known as Carabineros, and from individuals who have formed private armed militias.’³²⁷ The situation was acknowledged by the State Party, that Mapuche people who are trying to maintain their traditional way of life are involved in violent clashes with the Chilean security apparatus, that there have been miscarriages of military justice in trials of Mapuche activists, as well as police violence in Araucania with disproportionately severe acts of repression by the State.³²⁸ CAT referred to the Special Rapporteur on Indigenous Peoples in finding that ‘the present situation of Indigenous people in Chile is the outcome of a long history of marginalization, discrimination and exclusion, mostly linked to various oppressive forms of exploitation and plundering of their land and resources.’³²⁹ The Committee concluded that ‘Mapuche leaders are subjected to widespread torture and other cruel, inhuman and degrading treatment or punishment, from which protection should be provided under article 3 of the Convention.’³³⁰

This case illustrates how the non-refoulement prohibition under UN CAT can result in an in-depth examination of the minority or Indigenous rights situation in a State which is not directly the subject of the communication, including acts which would breach the Convention in relation to Chile. The case also highlights the growing inter-connectedness of the UN treaty bodies and special procedures seen in individual communications, in citing concluding observations of CERD, CEDAW, CRC and a number of thematic Special Rapporteurs in relation to the situation of the Mapuche.³³¹

Non-refoulement caselaw arose for the first time before CERD in U.I. and G.I. v Switzerland (2024).³³² This was commented on in the decision: ‘The Committee observes that the present communication constitutes a new case in that the petitioners are asking it to rule on an obligation of non-refoulement under article 14 of the Convention.’³³³ The petitioners were of Macedonian nationality and Roma ethnicity, subject to an order of removal from Switzerland to North Macedonia, which they argued breached their rights inter alia under Article 5(b) and (e)(iv) ICERD, which relate to the prohibition of racial discrimination in the right to security of person and protection by the State against violence or bodily harm, as well as health and social security. The Committee noted that in North Macedonia, perpetrators of violence against women and Roma persons often go unpunished. It also noted the State party’s submission that North Macedonia is included in the European Commission’s list of safe States which means it meets applicable criteria, including ‘respect for and protection of minorities’.³³⁴ It further noted the petitioners’ absence of documentary evidence of the violence and threats to which they were subjected. It then set a standard for such claims before it: ‘The Committee recalls that it is up to the petitioners to present an arguable case - that is, submit substantiated arguments showing that the risk of their right to security and physical safety being seriously violated because of their ethnic or racial origin is foreseeable, personal, present and real.’³³⁵ It found that such a case had not been made out, and as a result no violation was found. However, it is apparent from the decision that ‘safe State’ designation does not automatically mean that no such violation can be found, and CERD, as with other UN treaty bodies, provides a means of review where such substantiated arguments are made out.

³⁰¹ Saul Takahashi, ‘Recourse to Human Rights Treaty Bodies for Monitoring of the Refugee Convention’ (2002) 20(1) Netherlands Quarterly of Human Rights 53-74, at 55.
³⁰² Ibid citing HRC GC 20, in which ‘States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement’. (at para 9)
³⁰³ UN Doc. CCPR/C/123/D/2328/2014 (2018).
³⁰⁴ Ibid para 3.1.
³⁰⁵ Ibid para 4.10.
³⁰⁶ Ibid para 9.6.
³⁰⁷ UN Doc. CCPR/C/131/D/3069/2017 (2021).
³⁰⁸ Ibid para 9.2.
³⁰⁹ Ibid para 9.12.
³¹⁰ UN Doc. CCPR/C/117/D/2464/2014 (2016).
³¹¹ Ibid para 2.2.
³¹² Ibid para 7.6.
³¹³ Ibid para 7.7.
³¹⁴ Anthony North and Joyce Chia, ‘Towards Convergence in the Interpretation of the Refugee Convention: A Proposal for the Establishment of an International Judicial Commission for Refugees’ (2006) 5 Australian Yearbook of International Law 150.
³¹⁵ UN Doc. CAT/C/79/D/1055/2021 (2024).
³¹⁶ Ibid para 3.2. The complainant noted that politics in Cameroon are conducted along ethnic and tribal lines.
³¹⁷ UN Doc. CAT/C/78/D/1047/2021 (2023).
³¹⁸ Ibid para 3.8.
³¹⁹ UN Doc. CAT/C/78/D/1052/2021 (2024).
³²⁰ Ibid para 9.4.
³²¹ UN Doc. CAT/C/61/D/720/2015 (2017).
³²² See also T.T. v Australia UN Doc. CAT/C/77/D/946/2019 (2023), in which the Committee found in relation to a Tamil applicant that he had ‘not adduced sufficient grounds for believing that he would face a real, foreseeable, personal and present risk of being subjected to torture in case of his removal to Sri Lanka.’ (at para 9)
³²³ UN Doc. CAT/C/52/D/483/2011 (2014).
³²⁴ UN Doc. A/69/44 (2013-14) para 144.
³²⁵ UN Doc. CAT/C/68/D/882/2018 (2020).
³²⁶ Ibid para 2.1.
³²⁷ Ibid.
³²⁸ Ibid para 8.3.
³²⁹ Ibid para 8.4. There were also references to “constant monitoring” and “systematic repression” in the rural areas inhabited by the Mapuche, who know that the “slightest misplaced comment could send them directly to prison”.
³³⁰ Ibid para 8.4.
³³¹ See para 8.4 among other passages.
³³² UN Doc. CERD/C/112/D/74/2021 (2024).
³³³ Ibid para 7.3.
³³⁴ Ibid para 7.5.
³³⁵ Ibid para 7.9.