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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

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.  Here, in the first post, we focus on areas in which the state pushback appears to have been successful, or partly successful, and where the Committee softened or amended its position in the final adopted GC.

Diplomatic Assurances

In the state submissions, diplomatic assurances was the issue to which states paid the most attention – indeed, several countries responded only on this issue (including the submissions of Austria, Germany, Ireland, Latvia, New Zealand, the Netherlands, Mexico and Spain). There was also a joint submission specifically on diplomatic assurances prepared and submitted by the UK, US, Canada and Denmark. 

In the draft GC, the committee proposed that: “diplomatic assurances from a State party to the Convention to which a person is to be deported are contrary to the principle of ‘non-refoulement’” (draft para 20).  State pushback on this point was heavy with each individual state submission, as well as the joint submission challenging this apparent blanket prohibition on the use of diplomatic assurances in non-refoulement cases.  Almost all of the EEA countries, Latvia and Spain were the exceptions, and some non-European countries (New Zealand, for instance), referenced the ECtHR case of Qatada. This case set out a list of criteria that should be applied when considering the reliability of diplomatic assurances.  States were unequivocal that diplomatic assurances can be relied on, in certain circumstances, subject to an assessment of their credibility and reliability.  Russia also introduced the objection that an anti-diplomatic-assurances position represents an “interference in the sphere of interstate relations, which obviously denies the necessary trust in them”.

The pushback from states was successful as the statement that diplomatic assurances are “contrary to the principle of non-refoulement” has been removed from the adopted GC.  Instead, the Committee retains the softer position: “that diplomatic assurances from a State party to the Convention to which a person is to be deported should not be used as a loophole to undermine the principle of non-refoulement” (para 20).  This leaves open the possibility then that, if diplomatic assurances are not being used as a “loophole” to avoid duties under the Convention, they could be relied upon by the Committee.

Redress Post Deportation

Paragraph 22 of the proposed GC identified a range of measures that states should take if a person became a victim of torture post deportation.  It was suggested, among others, that deporting states should envisage mechanisms of financial and legal assistance to persons who face a substantial risk of torture, or actually are tortured, after they are deported “to enable them to get access to judicial procedures empowered to put an end to that risk or that offence.”  Furthermore, when necessary, deporting states should attempt to secure the return of the person back to their territory.

Australia, Denmark, Finland, Norway, Turkey, the UK, the US, Egypt, Morocco, and Switzerland all pushed back on this arguing that this creates new obligations that do not exist under the Convention.  The UK, for example, said:

The UK cannot agree, as suggested in paragraph 22, that the CAT, or indeed any other relevant international law obliges the sending State to go to the receiving State and facilitate the individual’s access to judicial remedies in the receiving State. This could be used to encourage an unwarranted interference in the internal affairs of the receiving State.

The pushback on this aspect of the GC appears to have been successful as it has been completely removed from the adopted GC and replaced with a vague and general statement with regard to the Committee’s views on redress in paragraph 21.

Territorial Application

Paragraph 10 of the draft GC made reference to the Convention being applied to territories under military occupation of the returning state and to territories under factual control and authority.  The UK and Russia specifically objected to this and there was some more general pushback by the US, Australia, Norway, Denmark and Canada, all seeking to limit the Committee’s position on the question extending the territorial reach of non refoulement duties.  In the adopted GC, reference specifically to foreign military occupations has been removed, so pushback on this issue was successful. Otherwise, the remainder of the text on territory remains unchanged (para 10).

Domestic Remedies

The US pushed back on paragraph 37 of the draft GC, which sets out what the Committee expects in terms of an effective domestic remedy. This maintains that CAT does not create specific obligations on states to enact precise domestic processes to evaluate cases and states can choose how they want to fulfil Article 3.  Canada asked for the removal of references to the fact that judicial remedies be provided “without obstacles of any nature.” Canada also asked for the removal of the assertion that a complainant’s case should be reviewed “by an authority independent from the authority which had initially decided” to enact the deportation.

In the adopted GC (now para 35) there is no longer any reference to the review being done by an authority independent from the initial decision maker but the remainder of the paragraph has been retained, including the reference to “without obstacles of any nature”, suggesting that pushback was partially successful.

Why was Pushback Successful?

It is, of course, difficult to know why the Committee conceded to state pushback on the issues above without having eavesdropped on their private deliberations. However, a number of possible reasons can be offered.  States pushed back on diplomatic assurances the most and in doing so,  many of the them referenced the ECtHR in the Qatada case, which found that diplomatic assurances were not a priori incompatible with the European Convention on Human Rights.  The fact that CAT ultimately softened its objection may suggest it was influenced by numbers and by  states’ repetitive references to the ECtHR on the issue.  This is noteworthy given that CAT rarely, if ever, references regional human rights courts in its decisions. 

The provision in the draft GC to provide post-deportation redress to victims of torture arguably created a new standard for states that was not envisaged in the text of the Convention, or reflected in the Committee’s caselaw. This may explain why the Committee ultimately conceded on this issue. However, the analysis in our next post will show that CAT used the draft GC to push interpretive standards beyond existing practices in several other areas, and despite significant state pushback to these changes, remained defiant and did not amend the adopted GC.

The CAT, dropping its explicit statements concerning  duties of non refoulement also applying in territories under occupation and specification of domestic remedies, does not, in effect, make significant differences. Territories under factual control is even a lower threshold than occupation, so it would also cover cases of occupation. On domestic remedies, the CAT arguably kept much of these under general principles (paragraph 13) requiring each case to to be ‘individually, impartially and independently examined through competent administrative and/or judicial authorities, in conformity with essential procedural safeguards, notably the guarantee of a prompt and transparent process, a review of the deportation decision and of a suspensive effect of the appeal’.

 

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