The United Nations Special Rapporteur on Torture, Juan E. Méndez, has issued a new expert’s report (his 17th)—this one on extraterritoriality. (JustSecurity’s extensive coverage of the extraterritoriality of states’ human rights obligations can be found here). Méndez’s tour de force—which discusses the prohibition against torture and other forms of cruel, inhuman, and degrading treatment or punishment (CIDT) as contained in the Convention Against Torture (CAT) as well as customary international law—covers a whole range of issues implicated by the question of extraterritoriality as highlighted below the fold. In light of the acute migrant crisis in the Middle East and Europe, I intend to focus here on his treatment of states’ non-refoulement obligations.

Méndez highlights that the non-refoulement principle is inherent to the prohibition against torture. Article 3 of the CAT provides:

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.

Although non-refoulement is a central feature of the CAT, the principle also finds expression in other multilateral treaties (including the 1951 Refugee Convention at Article 33 and Article 19 of the E.U. Charter of Fundamental Rights, made legally binding by the 2009 Lisbon Treaty) as well as customary international law (CIL). Notably, the Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights (ICCPR), requires states parties to adhere to the principle even though it is not express within the Covenant (see ¶ 9, General Comment No. 20 and Chitat Ng v. Canada).

The CAT’s prohibition is geographically unbounded, as noted by then-Legal Adviser Harold Koh in his 2013 State Department memo on the extraterritoriality of the CAT (since leaked to the press and cited in Méndez’s report). In that memo, Koh argued that the United States should abandon as untenable a prior position that its non-refoulement obligations apply only toward individuals located on sovereign U.S. territory. Koh reasoned:

Although the United States has previously taken the position that the Article 3 non-refoulement obligation is the most geographically restrictive provision of the CAT—limited to sovereign U.S. territory—I find that position legally unsustainable and unsupported by the object and purpose, text, context, and negotiating history of the Convention.

In light of the fact that states are bound to respect the non-refoulement principle regardless of where the state interfaces with the individual seeking protection, Méndez notes that the prohibition on non-refoulement applies:

  • Whenever states are operating extraterritorially and are in a position to transfer or expel persons,
  • Irrespective of whether the individual has crossed an international border,
  • Regardless of whether the individual is to be subjected to expulsion, extradition, removal, or any other form of transfer to another State, and
  • Even if the person might not qualify as a “refugee” or for asylum under international refugee law.
  • In the face of individual or collective claims.

Of direct relevance to the migrant crisis, Méndez notes that the principle of non-refoulement applies not only to individuals on sovereign territory or at a state’s borders, but also in states’ territorial seas and on the high seas:

The obligations enshrined in the Convention also apply to State vessels patrolling or conducting border control operations on the high seas and States’ pushbacks of migrants under their jurisdiction can breach the prohibition of torture and ill-treatment and non-refoulement obligations.

In this regard, Méndez rejects the United States’ “wet foot/dry foot” policy as validated by the U.S. Supreme Court’s ruling in Sale v. Haitian Centers Council, Inc. that the United States’ obligations under the 1951 Refugee Convention and its 1967 Protocol (along with domestic implementing legislation) do not apply on the high seas. Méndez’s position is also consistent with an open letter signed by over 900 international law experts to the European Union.

As emphasized by the last bullet point above, the absolute prohibition against refoulement is stronger than that found in refugee law. Given its focus on defining when individuals are entitled to refugee status, the Refugee Convention at Article 33 discusses non-refoulement only with respect to persons who qualify for refugee status or for asylum:

No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

Méndez makes clear, however, that the prohibition against torture more broadly requires that the right of non‑refoulement must be assessed independently of any refugee or asylee status determination. Moreover, it applies regardless of whether the person will be returned to, or subject to onward transfer to, a place where they might be at risk of mistreatment.

By way of remedy, all persons, including migrants, must have a right to challenge their potential refoulement on the basis of a fear of mistreatment in the receiving state (Arana v. France) prior to being transferred (Alzery v. Sweden). This challenge must be individualized and occur before an independent decision-maker with the power to suspend the transfer (Agiza v. Sweden). In particular:

States are required to afford individuals fundamental procedural obligations in connection with their non‑refoulement obligations, including, but not limited to a fair opportunity to state claims for refugee or asylee status and the right to challenge detention and potential transfer on the basis of mistreatment in a receiving State (a) prior to transfer; (b) before an independent decision maker with the power to suspend the transfer; and (c) through an individualized procedure incorporating timely notification of potential transfer and the right to appear before this independent body in person.

Additional details of how this obligation is to be effectuated are found in the Recommended Principles and Guidelines on Human Rights at International Borders developed by the Office of the United Nations High Commissioner for Human Rights.

Other issues of interest taken up by the Special Rapporteur include the following:

1. Extraterritoriality in general:

Whenever States bring a person within their jurisdiction by exercising control or authority over an area, place, individual or transaction they are bound by their fundamental obligation not to engage in or contribute to such acts.

2. Positive v. negative obligations, the latter applying at all times and whenever the state acts:

The Special Rapporteur finds that the Convention and the Optional Protocol limit to “any territory under [a State’s] jurisdiction” or “any place under its jurisdiction and control” a small number of positive obligations, the implementation of which is necessarily dependent on the exercise of a sufficient measure of control over an individual, area, place or situation. In this sense, it is uncontroversial that the Convention obliges States to take certain positive measures only when they exercise sufficient authority to be able to do so. Even while recognizing that States’ obligations to fulfil certain positive obligations are practicable only in certain situations, States’ negative obligations under the Convention are not per se spatially limited or territorially defined, nor are its obligations to cooperate to end torture and other ill-treatment.

3. Excessive force against persons not in the state’s custody:

The Special Rapporteur contends that the excessive use of force by State agents extraterritorially, resulting in loss of life or injury that meets the threshold for torture or other ill-treatment but occurs in the absence of direct physical control over an individual in the form of custody or detention, must also qualify as constituting authority and control by States. … It is imperative that States not be permitted to evade their fundamental obligations on the basis of a spurious distinction based on whether a State exercised direct physical control over an individual before committing the injurious act.

4. Principles of complicity apply when one state affords aid or assistance to another state in the commission of torture or other forms of mistreatment:

[N]o State should aid or assist another State in the commission of an internationally wrongful act (arts. 16-18). In such cases responsibility is incurred if the former State provides aid or assistance to the latter (a) “with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State”. Examples of assistance triggering State responsibility under article 16 include forms of assistance vital to the practice of extraordinary rendition and secret detention, including unchecked access to ports and military bases and “permissive” authorizations of the North Atlantic Treaty Organization for blanket overflight or landing rights, the provision of intelligence by one State to another with the foreseeable result being the torture or ill-treatment of an individual, and financial assistance to development projects in which torture was employed in the context of displacement or implementation.

5. The obligation to provide mutual legal assistance in the investigation and prosecution of acts of torture and CIDT wherever committed:

The obligation in article 9 of the Convention against Torture mandating that States parties “afford one another the greatest measure of assistance in connection with civil proceedings brought in respect of any of the offences referred to in article 4, including the supply of all evidence at their disposal necessary for the proceedings” must be emphasized. This provision requires States to cooperate—in terms of providing evidence and other forms of mutual legal assistance—with criminal and civil legal proceedings involving claims of torture, rather than seek to block, otherwise hinder or ignore those proceedings.

6. The duty to regularly and systematically review interrogation and detention rules applicable abroad to protect against torture and other forms of CIDT:

[T]he preventive obligations enshrined in article 11 that require a systematic review of interrogation rules for custody and treatment of persons in detention cannot be interpreted as limiting States’ obligations to their sovereign territories or places over which they exercise complete governmental authority. Rather, the clause denotes a particular factual situation and the obligations enshrined in the article apply by virtue of the authority or control wielded by State agents involved in the arrest, detention, imprisonment or interrogation of persons abroad.

7. The prohibition against torture and CIDT in human rights law co-exists with a parallel prohibition in international humanitarian law:

This is evidenced by textual aspects of the Convention that explicitly address armed conflict and military activities, according to which no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture, as well as aspects of its negotiating history. International human rights law remains applicable during armed conflict and the protection offered under human rights law does not cease during hostilities (without prejudice to the application of the lex specialis rule under appropriate circumstances). … In addition, the humane treatment requirements under the Convention and international humanitarian law are substantially equivalent, both prohibiting torture and other ill-treatment in international and non-international armed conflicts, with common article 3 of the Geneva Conventions of 12 August 1949 constituting a minimum baseline of protections applicable at all times, including during non-international armed conflicts. The Special Rapporteur contends that the universal legal regime for the prohibition and prevention of torture is indeed strengthened by the intersection of multiple subsystems and specialized regimes outlawing torture and other ill-treatment. Torture constitutes a grave breach of the Geneva Conventions, a violation of common article 3 and a violation of customary international humanitarian law. Under international criminal law, torture can also constitute a crime against humanity or an act of genocide.

8. Diplomatic assurances are “unreliable and ineffective” and unavailable to states to escape their absolute obligation of non‑refoulement:

States cannot resort to diplomatic assurances as a safeguard against torture and ill-treatment where there are substantial grounds for believing that a person would be in danger of being subjected to such treatment.

9. The exclusionary rule applies regardless of where the torture or CIDT was committed:

The exclusionary rule—mandating that States not invoke as evidence in any proceedings statements obtained as a result of torture—is not territorially limited, encompasses all forms of ill-treatment and is applicable no matter where the mistreatment was perpetrated.

10. There is a right to a remedy for torture or CIDT committed anywhere:

The right to a remedy is fundamental under international law and must be accessible to victims irrespective of where the violation occurred or whether the State exercising jurisdiction is the perpetrator. … The United States Torture Victims Protection Act in fact provides an example of how States parties can carry out their obligations under article 14 of the Convention. … An essential component of this obligation to provide redress is that States do not block or obstruct access to effective remedies by invoking “State secrets” or other doctrines to dismiss lawsuits in limine litis.