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Home Posts tagged "non-refoulment"

Part 1: A few steps forward, a few steps sideways and a few steps backwards: The CAT’s revised and updated GC on Non-Refoulement

Published on March 20, 2018        Author:  and
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On 6 December 2017, after a year long consultation process with states and civil society representatives, the Committee against Torture (CAT) adopted its revised General Comment (GC) (now No.4) on the implementation of Article 3 of the Convention against Torture (the Convention)  in the context of Article 22.

In a decaying global human rights climate, in particular towards people on the move, this GC has been much awaited.  Non-refoulement claims are the single most common claims raised before all UN Treaty bodies.  Non-refoulement cases are over 80 percent of  CAT’s  caseload. In addition to this, the  Human Rights Committee (HRC), the Committee on the Elimination of Discrimination against Women (CEDAW) and the Committee on the Rights of the Child (CRC) also receive individual petitions concerning non-refoulement, and turn to CAT for guidance.

Twenty-three state parties to the CAT (out of 162 in total) provided written comments on the draft GC prior to its adoption. These, in almost every case, pushed back on the standards the Committee aimed to develop.  The significant majority of the twenty three States responding were asylum and migration destination states in the global north, well known for their anti migration rhetoric. Alongside these, countries that have a disproportionate burden of asylum seekers, such as Turkey and Morocco also responded. China, the US, the UK, Qatar and Egypt, even though they do not recognise the right to individual petition before CAT,  also provided written comments. The states that provided the most detailed and expansive submissions were: the United Kingdom, Norway, Denmark, Australia, Canada, the United States, the Russian Federation, France and Switzerland.

Over these two blog posts, we identify which issues were subject to state pushback and how CAT responded, highlighting the areas where CAT stood its ground and where it conceded. Read the rest of this entry…

 
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A Cold War like Thriller in Summer – Icy Times Between Vietnam and Germany

Published on February 20, 2018        Author:  and
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If “all options are on the table” in the international arena, it is a reliable indicator that the stakes are high. We still recall when President Trump put all options on the table in August last year responding to North Korean missile tests. Just a few days before, Germany, usually not known for Trumpish rhetoric, also placed “all options on the table” in a dispute with Vietnam. This was not because Germany was concerned about a nuclear escalation. Germany was responding to a kidnapping of a Vietnamese citizen and asylum seeker, which Germany’s foreign minister accurately described as something “we believe one sees only in sinister thrillers about the cold war.”

Trinh Xuan Thanh, a former high-profile constructive executive, for whom Vietnam issued an international arrest warrant for corruption, sought refuge in Germany. Thanh however never showed up for the hearing scheduled in his asylum case. Instead, a few days later, he appeared haggard-looking on Vietnamese television. Vietnam stated Thanh had voluntarily turned himself in.  Germany presents a different version of Thanh’s return, accusing Vietnam of abduction. Purportedly, witnesses saw armed men dragging Thanh into a rental car in the middle of Berlin. After a stopover at the Vietnamese embassy, it is believed that he was clandestinely transported by ambulance to Eastern Europe from where he was flown to Vietnam.  Germany had no doubts that Vietnamese officials were responsible. On February 5, the second trial against Thanh concluded. While he escaped the impending death penalty, he received two life sentences for embezzlement. Read the rest of this entry…

 

Torture in Libya and Questions of EU Member State Complicity

Published on January 11, 2018        Author: 
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Amnesty International has reported that ‘tens of thousands’ of refugees and migrants are being subject to torture and other human rights abuses at the hands of Libyan state officials and non-state actors operating in, and out of, Libya (the full report can be accessed here). The publication of the report has led to allegations that the European Union (EU) is complicit in torture. One finding of the report is that ‘EU member states are and have been well aware of the widespread human rights violations and abuses suffered by refugees and migrants in Libya’ (p. 56). Amnesty International has claimed that EU states ‘are complicit’ in torture. Whether the complicity spoken of can trigger the responsibility of these states under international law is implied, but far from clear.

There are many tangents to questions of ‘European complicity’ in the torture of Libyan refugees and migrants. For example, issues regarding the obligation of non-refoulement (p. 53 of report), or the extraterritorial application of human rights obligations (pp. 54-56) (for insights on these particular matters see Gauci and Jackson respectively). The following post will briefly analyse the applicable secondary rules relating to how EU states could be held responsible for complicity in torture under general international law in light of the facts contained in the Amnesty report. Read the rest of this entry…

 

Non-State Actors and Non-Refoulement: The Supreme Court’s Decision in Zain Taj Dean

Published on July 28, 2017        Author: 
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Lord Advocate v. Zain Taj Dean [2017] UKSC 44 concerned an extradition request, made by the Republic of China in Taiwan (‘ROC’). Dean, a British national, had lived in Taiwan for many years. In 2011, he was convicted for manslaughter, drunk-driving and leaving the scene of an accident by an ROC court. While on bail, pending an appeal, he fled to Scotland. His convictions and four-year sentence were upheld, in absentia, in 2012. The request was made pursuant to an ad hoc ROC/UK MOU, and in accordance with section 194 of the Extradition Act 2003. The Edinburgh District Court ruled that Dean could be extradited but the Scottish Appeal Court disagreed. The Supreme Court had to decide whether Dean’s extradition, to serve out the remainder of his sentence in Taipei prison, would violate Article 3 of the ECHR.

As the greatest risk of harm emanated from other prisoners – rather than from public officials or the prison conditions themselves – the Supreme Court decided that the correct test was whether the requesting ‘State’ had offered to put in place reasonable protective measures to obviate this risk. To this end, it drew a distinction between State agents and non-State actors for this purpose despite the fact that the prison would be under the public authorities’ direct authority and control at all times. This post argues that this approach amounts to a misapplication of the Strasbourg jurisprudence, invoked by the Supreme Court, with potentially serious consequences for the interpretation of the non-refoulement principle in detention cases.   Read the rest of this entry…

 

Back to Old Tricks? Italian Responsibility for Returning People to Libya

Published on June 6, 2017        Author: 
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On 10/11 May 2017 various news outlets reported a maritime operation by the Libyan authorities, in coordination with the Italian Search and Rescue Authority, in which 500 individuals were intercepted in international waters and returned to Libya. This operation amounted to refoulment in breach of customary international law and several treaties (including the Geneva Refugee Convention and the European Convention on Human Rights), and an internationally wrongful act is one for which Italy bears international legal responsibility.

According to reports, the migrant and refugee boat called the Italian Maritime Rescue Coordination Centre (MRCCC) whilst it was still in Libyan territorial waters. MRCC contacted both the Libyan coastguard and an NGO vessel (Sea Watch-2) with the latter sighting the boat after it had left Libyan waters and was in international waters. During preparations for the rescue, the NGO boat was informed by the Italian authorities that the Libyan coastguard boat which was approaching had “on scene command” of the rescue operation. Attempts by the NGO vessel to contact the Libyan authorities were not picked up. The Coastguard proceeded instead to cut the way of the Sea Watch 2 at high speed and chase its rescue boat. It then stopped the refugees and migrant boat. Reports indicate that the Libyan coastguard captain threatened the refugees and migrants with a gun and then proceeded to take over the migrant boat. Read the rest of this entry…