human rights violations, notably arbitrary deprivation of life 37 , or torture or other cruel,
inhuman or degrading treatment or punishment. 38
18.
An explicit non-refoulement provision is contained in Article 3 of the 1984
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, 39 which prohibits the removal of a person to a country where there are
substantial grounds for believing that he or she would be in danger of being subjected to
torture.
19.
Obligations under the 1966 Covenant on Civil and Political Rights, 40 as
interpreted by the Human Rights Committee, also encompass the obligation not to
extradite, deport, expel or otherwise remove a person from their territory, where there
are substantial grounds for believing that there is a real risk of irreparable harm, such as
that contemplated by Articles 6 [right to life] and 7 [right to be free from torture or other
cruel, inhuman or degrading treatment or punishment] of the Covenant, either in the
country to which removal is to be effected or in any country to which the person may
subsequently be removed. 41 The prohibition of refoulement to a risk of serious human
rights violations, particularly torture and other forms of ill-treatment, is also firmly
established under regional human rights treaties. 42
37
38
39
40
41
42
The right to life is guaranteed under Article 6 of the ICCPR and, for example, Article 2 of the 1950
European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 005, 213
U.N.T.S. 222, entered into force 3 September 1953 [hereinafter: “ECHR”]; Article 4 ACHR; Article 4
of the African (Banjul) Charter on Human and People’s Rights, 21 I.L.M. 58 (1982), entered into
force 21 October 1986 [hereinafter: “Banjul Charter”].
The right to be free from torture is guaranteed under Article 1 of the 1984 Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment and Article 2 of the 1985 InterAmerican Convention to Prevent and Punish Torture, 25 I.L.M. 519 (1992), entered into force 28
February 1987. Article 16 of the Convention Against Torture prohibits other cruel, inhuman or
degrading treatment or punishment. A prohibition of torture and other cruel, inhuman or degrading
treatment or punishment is guaranteed under Article 7 of the ICCPR and provisions in regional human
rights treaties, such as, for example, Article 3 of the ECHR; Article 5(2) of the ACHR; or Article 5 of
the Banjul Charter.
The 1984 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 1465 U.N.T.S. 85, entered into force 26 June 1987 [hereinafter:
“Convention Against Torture”].
1966 International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, entered into force 23
March 1976 [hereinafter: “ICCPR”].
With regard to the scope of the obligations under Article 7 of the ICCPR, see Human Rights
Committee in its General Comment No. 20: Article 7 (Prohibition of torture, or other cruel, inhuman
or degrading treatment or punishment), 10 March 1992, U.N. Doc. HRI/ GEN/1/Rev.7, para. 9
(“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”); and General Comment No. 31 on the Nature of the General Legal Obligation on States
Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 12. Similarly, in
its General Comment No. 6 (2005) on the Treatment of unaccompanied and separated children
outside their country of origin, U.N. Doc. CRC/GC/2005/6, 1 September 2005, the Committee on the
Rights of the Child stated that States party to the Convention on the Rights of the Child “[…] shall not
return a child to a country where there are substantial grounds for believing that there is a real risk of
irreparable harm to the child, such as, but by no means limited to, those contemplated under articles 6
[right to life] and 37 [right to be free from torture or other cruel, inhuman or degrading treatment or
punishment and right not to be arbitrarily deprived of liberty] of the Convention.” (para. 27).
See, for example, the jurisprudence of the European Court of Human Rights, which has held that nonrefoulement is an inherent obligation under Article 3 of the ECHR in cases where there is a real risk of
exposure to torture, inhuman or degrading treatment or punishment, including, in particular, the
Court’s decisions in Soering v. United Kingdom, Application No. 14038/88, 7 July 1989 and
subsequent cases, including Cruz Varas v. Sweden, Application No. 15567/89, 20 March 1991;
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