The United Nations Special Rapporteur on Torture, Juan E. Méndez, has issued a new expert’s report (his 17th)—this one on extraterritoriality. (JustSecurity’s extensive coverage of the extraterritoriality of states’ human rights obligations can be found here). Méndez’s tour de force—which discusses the prohibition against torture and other forms of cruel, inhuman, and degrading treatment or punishment (CIDT) as contained in the Convention Against Torture (CAT) as well as customary international law—covers a whole range of issues implicated by the question of extraterritoriality as highlighted below the fold. In light of the acute migrant crisis in the Middle East and Europe, I intend to focus here on his treatment of states’ non-refoulement obligations.
Méndez highlights that the non-refoulement principle is inherent to the prohibition against torture. Article 3 of the CAT provides:
No State Party shall expel, return (“refouler”), or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
Although non-refoulement is a central feature of the CAT, the principle also finds expression in other multilateral treaties (including the 1951 Refugee Convention at Article 33 and Article 19 of the E.U. Charter of Fundamental Rights, made legally binding by the 2009 Lisbon Treaty) as well as customary international law (CIL). Notably, the Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights (ICCPR), requires states parties to adhere to the principle even though it is not express within the Covenant (see ¶ 9, General Comment No. 20 and Chitat Ng v. Canada).
The CAT’s prohibition is geographically unbounded, as noted by then-Legal Adviser Harold Koh in his 2013 State Department memo on the extraterritoriality of the CAT (since leaked to the press and cited in Méndez’s report). In that memo, Koh argued that the United States should abandon as untenable a prior position that its non-refoulementobligations apply only toward individuals located on sovereign U.S. territory. Koh reasoned:
Although the United States has previously taken the position that the Article 3non-refoulement obligation is the most geographically restrictive provision of the CAT—limited to sovereign U.S. territory—I find that position legally unsustainable and unsupported by the object and purpose, text, context, and negotiating history of the Convention.
In light of the fact that states are bound to respect the non-refoulement principle regardless of where the state interfaces with the individual seeking protection, Méndez notes that the prohibition on non-refoulement applies:
- Whenever states are operating extraterritorially and are in a position to transfer or expel persons,
- Irrespective of whether the individual has crossed an international border,
- Regardless of whether the individual is to be subjected to expulsion, extradition, removal, or any other form of transfer to another State, and
- Even if the person might not qualify as a “refugee” or for asylum under international refugee law.
- In the face of individual or collective claims.
Read the full post at Just Security.