A Castle Built on Sand? Article 3 ECHR and the Source of Risk in Non-Refoulement Obligations in International Law

Abstract

Where international human rights instruments lack explicit prohibitions on refoulement, non-refoulement obligations are read into other substantive rights. In this context, state responsibility is engaged by the act of removal of an individual to a state where he or she will be exposed to a certain degree of risk of having his or her human rights violated. In its so-called medical cases, the European Court appears to position the source of the risk to which removal exposes the individual, in terms of whether it emanates from circumstances that can give rise to the responsibility of the destination state or not, as a significant factor in establishing the proper scope of protection from refoulement under the ECHR. In light of this, this article argues that there is something problematic about the use of the ‘removal plus risk’ formulation to read prohibitions on refoulement into human rights provisions. This is linked to the failure of the European Court adequately to address the legal basis for reading non-refoulement obligations into the prohibition on torture or inhuman or degrading treatment or punishment. It is the contention of this article that none of the possible legal bases identified in the academic commentary really offer a solid foundation upon which to base implicit non-refoulement obligations and, in this sense, non-refoulement under the ECHR is a castle built on sand.