Chapter 7 – Non-refoulement
Relevant Articles from the United Nations Convention against Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment:
Article 3
1. 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.
2. For the purpose of determining whether there are such grounds, the
competent authorities shall take into account all relevant considerations
including, where applicable, the existence in the State concerned of a
consistent pattern of gross, flagrant or mass violations of human rights.
25. The Convention requires States parties to incorporate the
principle of non-refoulement
Under the Convention, a State party has an explicit duty not to remove an
individual from its territory where there are “substantial grounds for believing
that he would be in danger of being subjected to torture.” 154 As a jus cogens
norm of international law, the prohibition on refoulement to torture is also
applicable to all States regardless of their ratification or accession to the UNCAT.
Non-refoulement is one of the strongest ways a State can prevent torture from
occurring: by not acting to remove a person at risk of torture to another country.
The prohibition against refoulement applies to both the proposed country of
immediate removal, as well as to any other country to which the person may be
subsequently removed.155
The prohibition on refoulement is not only a substantive norm, requiring
all measures to be taken to prevent refoulement, it also carries procedural
requirements, not least that the individual is entitled to a fair hearing regarding
their proposed removal, per article 3(2). Article 3(2) of the Convention is a starting
point, stating that the competent authorities determining whether removal can
take place shall take into account all relevant considerations, including where
applicable “the existence in the State concerned of a consistent pattern of gross,
flagrant or mass violations of human rights.”
The Committee’s reference source on non-refoulement is General Comment N°1,
which guides the determination of how a State can ensure that it does not fall foul
Article 3 of the UNCAT.
154
CAT, General Comment N°1: Implementation of Article 3 of the Convention on the context of article 22
(16 September 1998, UN Doc. A/53/44, annex IX, § 2 [Please note that, at the time of drafting, the
Committee is currently developing a General Comment on article 3]. See also ICCPR General Comment 31
(Eightieth Session, 2004): Article 2: The Nature of the General Legal Obligation Imposed on States Parties
to the Covenant, UN Doc. A/59/40 (2004) 175, § 12.
155
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