Abstract
AbstractThis Article comparatively analyses how the prohibition of refoulement is interpreted by United Nations Treaty Bodies (UNTBs) in their individual decision-making, where we suggest they act as “soft courts.” It asks whether UNTBs break ranks with or follow the interpretations of non-refoulement of the European Court of Human Rights. This investigation is warranted because non-refoulement is the single most salient issue that has attracted individual views from UNTBs since 1990. Moreover, our European focus is warranted as nearly half of the cases concern states that are also parties to the European Convention on Human Rights. Based on a multi-dimensional analysis of non-refoulement across an original dataset of over 500 UNTB non-refoulement cases, decided between 1990–2020, as well as pertinent UNTB General Comments, the Article finds that whilst UNTBs, at times, do adopt a more progressive position than their “harder” regional counterpart, there are also instances where they closely follow the interpretations of the European Court of Human Rights and, on occasion, adopt a more restrictive position. This analysis complicates the view that soft courts are likely to be more progressive interpreters than hard courts. It further shows that variations in the interpretation of non-refoulement in a crowded field of international interpreters present risks for evasion of accountability, whereby domestic authorities in Europe may favor the more convenient interpretation, particularly in environments hostile to non-refoulement.
Highlights
This Article comparatively analyses how the prohibition of refoulement is interpreted by United Nations Treaty Bodies (UNTBs) in their individual decision-making, where we suggest they act as “soft courts.” It asks whether UNTBs break ranks with or follow the interpretations of non-refoulement of the European Court of Human Rights
(Received 03 March 2020; accepted 03 March 2020)
Based on a multi-dimensional analysis of non-refoulement across an original dataset of over 500 UNTB non-refoulement cases, decided between 1990–2020, as well as pertinent UNTB General Comments, the Article finds that whilst UNTBs, at times, do adopt a more progressive position than their “harder” regional counterpart, there are instances where they closely follow the interpretations of the European Court of Human Rights and, on occasion, adopt a more restrictive position
Summary
In order to investigate the contribution of the UNTBs as soft courts to the protection of non-refoulement, we compiled a unique database of non-refoulement cases before the four. The top four States with non-refoulement cases before CAT are Switzerland (n = 105), Sweden (n = 91), Canada (n = 50) and Australia (n = 37) They are closely followed by Denmark (n = 23) and the Netherlands (n = 21). The CEDAW Committee has considered a relatively low number of non-refoulement cases but yet again the countries that are represented follow a similar pattern with Denmark being the respondent with the highest number of cases (n = 15), followed by Canada (n = 3), the Netherlands (n = 2) and the UK (n = 2). The Netherlands, Canada and Australia are prominent examples of this This makes the investigation of the interpretation of non-refoulement across UNTBs all the more worthwhile, as the views of the Committees are capable of sending different signals to individuals in terms of their prospects of success and states in terms of their compliance with these views.
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