Non-Refoulement Under the Inter-American Human Rights System

Abstract

The cornerstone of refugee protection, the principle of non-refoulement prohibits the expulsion of an individual to any territory where his life or freedom may be threatened on account of race, religion, nationality, membership of a particular social group or political opinion; or where he may be submitted to torture or other cruel, inhuman or degrading treatments or punishments. First established in Article 3 of the 1933 Convention relating to the Status of Refugees, the prohibition of refoulement has been reaffirmed in international law during the last century, be it through its progressive ‘positivisation’ in several treaties and soft-law instruments, or by its crystallisation in customary international law. For its humanitarian character, the principle was rapidly transposed to the other regimes of the protection of the human person (e.g., human rights law and international humanitarian law). As a direct consequence of this expansion, the principle had its scope and content enlarged to embrace other persons rather than just refugees and asylum seekers. As an open concept, prescribed in general and abstract terms, especially in human rights treaties, the scope of the protection deriving from non-refoulement may change depending upon the interpretation given by the relevant authorities and tribunals to terms such as, inter alia, ‘torture,’ ‘inhuman and degrading treatment,’ ‘persecution’. This subjectivity confers to international supervisory organs a distinct role in delineating the scope of the principle within their jurisdictions. In this sense, the purpose of this work is to identify the scope and content of non-refoulement under the Inter-American Human Rights System (IAHRS). The article so concludes that the dimension of non-refoulement under the IAHRS is particularly broader than in other jurisdictions.