Protection AgainstRefoulementfrom Europe: Human Rights Law Comes to the Rescue

Abstract

A growing opinion has appeared in refugee and human rights discourse that the 1950 European Convention on Human Rights and Fundamental Freedoms (the European Convention) provides more extensive protection againstrefoulementthan the 1951 UN Convention relating to the Status of Refugees (the Refugee Convention). However, uncertainties remain as to whether the protection offered by the 1984 UN Convention against Torture (the Torture Convention) and the 1966 UN International Covenant on Civil and Political Rights (the Political Covenant) may substitute, or, rather, reinforce, that of the European Convention. Which of these four instruments offers the greatest protection against a decision ofrefoulementfrom a European country? The answer to this question is far from being academic. The rule that an international organ may only be competent to consider an individual petition or communication provided “the same matter is not being examined under another procedure of individual investigation or settlement” is embodied in all three instruments providing a procedure for individual complaints. It is therefore crucial for an asylum-seeker to give his or her best shot first, even if, as rightly pointed out by Liz Heffernan, the Strasbourg organs and the Geneva organs are not in competition.1This article will review the scope of protection afforded under the three of these treaties which provide an international enforcement mechanism to persons who have sought refugee status in the domestic jurisdiction.

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