Hard Protection through Soft Courts? Non-Refoulement before the United Nations Treaty Bodies

  • 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. 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.

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Metadaten
Document Type:Article
Language:English
Author(s):Başak Çalı, Cathryn Costello, Stewart Cunningham
Parent Title (English):German Law Journal
ISSN:2071-8322
Publication year:2020
Publishing Institution:Hertie School
First Page:355
Last Page:384
DOI:https://doi.org/doi:10.1017/glj.2020.28
Release Date:2020/05/15
Issue:21
Hertie School Research:Centre for Fundamental Rights
Licence of document (German):Metadaten / metadata
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