Part 2: A few steps forward, a few steps sideways and a few steps backwards: The CAT’s revised and updated GC on Non-Refoulement

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CAT’s Defiance in Response to State Pushback

In Part I of our analysis of the new CAT General Comment, we noted that state pushback on a range of issues, for example diplomatic assurances and post deportation redress, was successful as evidenced by the committee’s amendments to the now adopted GC.  In this post, we discuss the areas where the CAT stood its ground in the consultation process and resisted state pushback, on some occasions even pushing certain doctrines beyond the position stated in the draft GC, despite states’ concerns.

Reverse Burden of Proof

The draft GC proposed a reverse burden of proof in cases where an individual “cannot elaborate on his/her case”. This would be, for example, if she has no possibility to obtain documentation regarding her alleged torture or is deprived of her liberty (para 40). There was pushback against the reverse burden of proof from several countries with the US, Russia, Norway, Finland, Denmark, and Australia all arguing that this was not reflective of the wording of the Convention or the Committee’s caselaw, which suggests that the burden is always on the complainant to present their case.  While a reverse burden of proof is occasionally mentioned in the committee’s caselaw, this only ever shifts after the complainant has provided enough evidence to substantiate their case (see e.g. SPA v Canada, at para 7.5).  Despite this pushback, and the lack of grounding in the Committee’s caselaw, a reverse burden of proof has been retained in the adopted GC demonstrating the Committee’s use of the GC to engage in dynamic interpretation of the Convention.

Internal Flight Alternative

In the draft GC, the Committee said that the internal flight alternative (where a person could be deported to an area of a State where they would not be exposed to torture) is “not admissible unless the Committee has received reliable information […] that the State of deportation has taken effective measures able to guarantee full and sustainable protection of the rights of the person concerned” (para 51).

Australia, Canada, Denmark, Finland, Norway and the US all pushed back against this position, arguing that internal flight options should be considered as part of an overall risk assessment and the Committee’s position was too rigid.

In the adopted GC, the Committee has gone beyond the position stated in the draft and strengthened its objection to internal flight options suggesting that the state pushback was entirely unsuccessful.  The provision on internal flight in the adopted GC makes no reference to the receiving state’s ability to guarantee protection, but instead asserts that the internal flight alternative is simply “not reliable or effective” (para 47).

Access to Rehabilitation Services

The draft GC held that if victims of torture need specialized rehabilitation services, then once their conditions have been medically certified they should not be removed to countries where they could not continue to receive their treatment (para 21).  There was strong pushback on this from several states – Australia, Canada, Denmark, Finland, Norway, the UK and the US – all of which argued that this creates additional non-refoulement obligations based on health rather than on future risk of torture, which is the position in the Convention.  Several European states referenced the ECtHR caselaw on deportation in situations of ill health, including N v UK, in support of their position.  The Committee caselaw is unequivocal that health conditions do not engage non-refoulement obligations under the Convention so the draft GC was an attempt to progressively develop the CAT’s position. Despite all of this pushback, the Committee has retained its position in the adopted GC.

Non-State Actors

The draft GC demanded that states refrain from deportations where there is a danger of torture or cruel, inhuman and degrading treatment at the hands of non-state actors over which the state of deportation has no control (para 31).

There was pushback on this from the US, UK, Russia, Canada and Australia.  These countries saw this interpretation as extending their non-refoulement obligations beyond the Convention, which asserts that torture must be at the hands of state agents.  States also pushed back regarding the fact that para 31 extended non-refoulement beyond torture to include cruel, inhuman, degrading treatment and punishment (CIDTP).  The pushback, in this instance, was unsuccessful as the adopted GC contains a similar provision on non-state actors, the only difference being the reference to CIDTP has been replaced by the term “other ill-treatment”.

Provision of Financial Assistance/Material Support

The draft GC made references to the duty to provide material/financial assistance to asylum seekers in para 14 and 43.  In Turkey’s submission, there was pushback on this point with concerns that “it may create [a] huge financial burden particularly in the large number of refugee and asylum seeker movements towards some states like Turkey” (para 7).  They also challenged the requirement to provide free legal assistance.  Norway, the UK and the US also pushed back on this theme, noting that there are no requirements under the Convention to provide financial assistance and decisions about this have to be made with regard to budgetary restrictions and in light of economic conditions.

Despite this pushback both provisions have been retained.  The revised GC notes that financial assistance should be provided when necessary (para 41) and the assertion that states should not cut assistance programs as a way to compel return is also retained (para 14).

Sexual Orientation and Gender Identity as an Indicator of Risk of Torture

Turkey asked that in paragraph 48(e) of the proposed GC that the term “sexual orientation and gender identity” should be deleted or replaced with the term “sex”, which, Turkey argues, is approved and accepted by the international legal literature. Qatar also expressed concern with the inclusion of “sexual orientation and gender identity” in paragraph 48 as this contradicts Qatari public order laws and Sharia.  This pushback was entirely unsuccessful, and the term “sexual orientation and gender identity” is retained in the adopted GC.

Interim Measures

In the adopted GC the text has changed slightly and the Committee has removed a direct assertion that not complying with interim measures would represent a failure to fulfil its obligations, but replaced this with a reference to “the Committee’s determination that the non-compliance with its request for interim measures constitutes a breach of Article 22 of the Convention” (para 37).  The change, therefore, does alter the gist of the Committee’s approach to interim measures  that non-compliance with requests for interim measures represents a breach or failure to uphold the Convention. 

In the draft GC, it was stated that non-compliance with interim measures ‘would make it evident that the that the State party failed in fulfilling its obligations to cooperate with the Committee” (para 39). There was strong pushback on this from several states, Australia, Canada, Denmark, Norway and China  (note that Chine has not accepted the right to individual petition before CAT), on the basis that interim measures are not legally binding, and that it us up to the states whether they accept or reject them. It was argued that even if states reject the request for interim measures, it does not show a lack of good faith and they can continue to engage in the Committee’s procedures. 

Our ongoing research of the CAT non-refoulement caselaw, shows a very high rate of compliance with interim measures, with only 14 instances of non-compliance between November 1994 and May 2017.  This positive trend especially applies to states, which were the most vociferous in their objection to the position on interim measures, with Canada the only country among them not to have complied with requests (and only on three occasions).  In any event, with such a high rate of compliance, the Committee must have been confident in not responding to this push back.

Concluding Thoughts

The recognition of non-refoulement as a fundamental norm was not directly challenged by the twenty-three states that provided comments. But states are seeking to interpret non-refoulement as narrowly as possible and do not provide support for the dynamic interpretation of the Convention offered by the Committee.

In contrast, the CAT has expanded the scope of non-refoulement in its revised General Comment. Whist it has conceded ground to state pushback on diplomatic assurances and duties to provide redress post deportation (also see the recent concession by the ECtHR on the latter in Nait-Liman v. Swizerland just a few days ago), it resisted pushback confirming some of its well established case law (e.g. its position with regard to non-state actors,  SJD v Australia, 17 Dec 13, para 10.9)). It also developed new interpretive standards. It created, for example, a new reverse burden of proof and a duty not to deport individuals who are undergoing rehabilitation treatment. The latter evidences a bold institution (somewhat refreshing in the current human rights climate), perhaps due to its non-binding nature, or because the CAT’s very mission is to both advance non-refoulement and fight torture.

We noted in Part 1 that the CAT may have been influenced by the constant references by states to the ECtHR in softening its position on diplomatic assurances. This stands, however, in stark contrast to its position on the internal flight alternative and non-refoulement for medical reasons. The position of CAT on these two issues now goes well beyond the ECtHR position, which accepts an internal flight alternative subject to certain criteria (see Sulfi and Elmi v UK) and does not recognise non-refoulement for medical reasons, unless the person risks death on her return journey. On these issues, CAT is now ahead of ECtHR standards

It remains to be seen whether CAT’s expansion of the scope of non-refoulement and associated duties of states on multiple fronts will be respected by states parties and followed by other UN Treaty bodies and regional human rights courts or whether it will lead to further pushback and a fragmentation of the regime on non-refoulement in the future, in particular between ECtHR and the UN Treaty bodies. We were also struck by the fact that several states providing robust pushback on a range of issues have not accepted the individual right of petition before CAT (the USA and the UK, for instance) and so, technically, are unaffected by the contents of the GC.  However, they seem much more invested in exerting influence on the CAT’s approach to non-refoulement cases.  The Committee and its general comment are perhaps taken more seriously than their soft constitution may initially suggest, after all.

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