Friday, 31 October 2008

Non-Refoulement under ECHR


My former colleague of Leiden University, Maarten den Heijer (see his earlier post on this blog here), has just published an article in the European Journal of Migration Law, entitled 'Whose Rights and Which Rights? The Continuing Story of Non-Refoulement under the European Convention on Human Rights' (vol. 10, 2008, pp. 277-314). He intriguingly analyses to what extent other Articles of the ECHR than 2 and 3 are relevant in the context of non-refoulement. Here is the abstract:

This article challenges the assumption that under the European Convention of Human Rights only Articles 2 and 3 bear relevance in cases of refoulement. By unraveling the explicit and implicit principles applied by the European Court of Human Rights and elaborating upon earlier theoretical attempts to ascertain the impact of the Soering judgment on extradition and expulsion cases, it is argued that there is no clear dichotomy of rights within the European Convention and that the higher threshold for applying Convention standards to cases of expulsion in which maltreatment is suffered in the receiving country is dependent on the notion of a 'fundamental value'. Albeit a somewhat nebulous concept, this notion is likely to encompass not only Articles 2 and 3, but also norms protected by other provisions, or at the least certain intrinsic components of those other provisions.
Highly recommended!

The article is accessible through Ingenta for (academic) subscribers.

1 comment:

Jonathan Mitchell said...

How about the House of Lords decision the other day in EM (Lebanon) (FC) (Appellant) (FC) v Home Secretary, [2008] UKHL 64? Key quote from Lord Hope: "The appellant ... claims that she has a right to remain here under article 8 of the European Convention on Human Rights read in conjunction with article 14. So the question is whether she has established that she and her son would run a real risk of a flagrant denial of the right to respect for their family life guaranteed to her by those articles if they were to be removed from this country to Lebanon. I take the wording of the test to be applied to determine whether there would be a flagrant denial of this right from what Judges Bratza, Bonello and Hedigan said in their joint partly dissenting opinion in Mamatkulov and Askarov v Turkey (2005) 41 EHRR 494, 537-539."