GLJ Short: Hard Protection through Soft Courts? Non-Refoulement before the United Nations Treaty Bodies

German Law Journal: GLJ Shorts and GLJ Specials

With Başak Çalı and Cathryn Costello

Link to the article

Başak Çalı, Cathryn Costello & Stewart Cunningham: Hard Protection through Soft Courts? Non-Refoulement before the United Nations Treaty Bodies, German Law Journal 21:3 (2020)

The Special Issue

Introduction to the Special Issue "Border Justice: Migration and Accountability for Human Rights Violations" by editors Cathryn Costello and Itamar Mann

Table of Content of the Special Issue

Abstract

Abstract: This Article comparatively analyses how the prohibition of refoulement is interpreted by United Nations Treaty Bodies (UNTBs) in their individual decision-making, where we suggest they act as “soft courts.” It asks whether UNTBs break ranks with or follow the interpretations of non-refoulement of the European Court of Human Rights. This investigation is warranted because non-refoulement is the single most salient issue that has attracted individual views from UNTBs since 1990. Moreover, our European focus is warranted as nearly half of the cases concern states that are also parties to the European Convention on Human Rights. Based on a multi-dimensional analysis of non-refoulement across an original dataset of over 500 UNTB non-refoulement cases, decided between 1990–2020, as well as pertinent UNTB General Comments, the Article finds that whilst UNTBs, at times, do adopt a more progressive position than their “harder” regional counterpart, there are also instances where they closely follow the interpretations of the European Court of Human Rights and, on occasion, adopt a more restrictive position. This analysis complicates the view that soft courts are likely to be more progressive interpreters than hard courts. It further shows that variations in the interpretation of non-refoulement in a crowded field of international interpreters present risks for evasion of accountability, whereby domestic authorities in Europe may favor the more convenient interpretation, particularly in environments hostile to non-refoulement.

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1. Introduction (00:00:00)

2. In a nutshell, what is your article about? (00:00:40)

3. What's at stake, and why now? (00:01:44)

4. Where do we go from here? (00:03:00)

5. About you: A cause for hope (Başak Çalı) (00:04:44)

6. About you: Little known fact (Cathryn Costello) (00:05:16)