A/60/316
28. On the basis of the review of jurisprudence of international and regional
human rights mechanisms, the Special Rapporteur concludes that any form of
corporal punishment is contrary to the prohibition of torture and other cruel,
inhuman or degrading treatment or punishment. Moreover, States cannot
invoke provisions of domestic law to justify the violation of their human rights
obligations under international law, including the prohibition of corporal
punishment. He therefore calls upon States to abolish all forms of judicial and
administrative corporal punishment without delay.
III. Principle of non-refoulement and diplomatic assurances
29. The Special Rapporteur continues to receive a large number of allegations
involving persons in circumstances where the absolute principle of non-refoulement
has not been respected. Several Governments, in the fight against terrorism, have
transferred or proposed to return alleged terrorist suspects to countries where they
may be at risk of torture or ill-treatment. In this section, the Special Rapporteur
addresses the principle of non-refoulement and the use of diplomatic assurances, or
formal guarantees, between Governments that a person to be returned will not be
subjected to torture, ill-treatment or the death penalty and will be afforded the right
to a fair trial.
A.
The non-refoulement principle in the jurisprudence of
international human rights mechanisms
30. One of the bedrock principles of international law is the express prohibition
against refoulement of persons to where there are substantial grounds to believe that
there is a risk of torture. This principle has already been dealt with by the Special
Rapporteur’s predecessors in previous reports to the General Assembly.26 However,
in the present report the Special Rapporteur would like to place emphasis on recent
decisions reached by international human rights mechanisms on this matter.
31. Article 3 of the Convention against Torture states clearly and unequivocally
that “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”.
32. In general comment No. 20 (1992), the Human Rights Committee also
interpreted article 7 of the International Covenant on Civil and Political Rights to
cover the principle of non-refoulement by stipulating that “... States parties must not
expose individuals to the danger of torture or cruel, inhuman or degrading treatment
or punishment upon return to another country by way of their extradition, expulsion
or refoulement” (para. 9). The non-refoulement principle is also firmly anchored in
article 33 of the 1951 Convention relating to the Status of Refugees and its 1967
Protocol.
33. In May 2005, the Committee against Torture, in its concluding observations on
the report of Canada, expressed its concern at “the failure of the Supreme Court of
Canada, in Suresh v. Minister of Citizenship and Immigration, to recognize at the
level of domestic law the absolute nature of the protection of article 3 of the
Convention, which is not subject to any exception whatsoever.”27 Furthermore,
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