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

The UN treaty bodies are often referred to as "soft courts," because their decisions are neither binding nor enforceable. When interpreting non-refoulement, does this make them more progressive than the European Court of Human Rights, a "hard court"? An analysis of over 500 decisions shows that this is not always the case. Rather, variations in the interpretation of this norm in a crowded field of international interpreters present risks for evasion of accountability, enabling domestic authorities in Europe to favor the most restrictive interpretation.

In this GLJ Shorts episode, Başak Çalı and Cathryn Costello present their and Stewart Cunningham's article "Hard Protection through Soft Courts? Non-Refoulement before the United Nations Treaty Bodies," which appeared in the Special Issue "Border Justice: Migration and Accountability for Human Rights Violations" in GLJ vol. 21:3 in April 2020. Interview by German Law Journal editor Nora Markard, editing by Marlene Stiller.

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)

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:
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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