UN Treaty Bodies act as “soft courts” for migrants and refugees in non-refoulement cases, study finds

Başak Çalı, Cathryn Costello and Stewart Cunningham examine three decades of cases as migrants increasingly seek protection through the UN Treaty Bodies.

International law protects anyone from being sent to a country where they might face persecution or a serious human rights violation, through the legal norm of non-refoulement. To seek protection of their rights, increasing numbers of migrants and refugees in Europe have turned in recent years to the United Nations Treaty Bodies (UNTBs)  –  expert committees that emit non-binding decisions – instead of the European Court of Human Rights.  A new study based on data from three decades of individual cases examines how the UNTBs have interpreted this norm.

Başak Çalı, Hertie School Professor of International law and Director of the Center for Fundamental Rights, Cathryn Costello, Professor of Refugee and Migration Law at the University of Oxford and Stewart Cunningham, Research Associate at Hertie School’s Centre for Fundamental Rights, have created an original dataset of over 500 non-refoulement cases, decided between 1990–2020 by the UNTBs. They present their findings in the paper, “Hard Protection through Soft Courts? Non-Refoulement before the United Nations Treaty Bodies” published on 8 April 2020 in the German Law Journal, a special issue co-edited by Cathryn Costello and Itamar Mann of the University of Haifa Faculty of Law.

The norm of non-refoulement is derived from several international treaties and is widely recognised as a norm of customary international law. Non-refoulement is applied by domestic courts as well as international courts around the world. The latter include regional courts such as the European Court of Human Rights, the Inter-American Court of Human Rights and the Court of Justice of the European Union, alongside the focus of this study ­– the United Nations Treaty Bodies. How the UNTBs interpret non-refoulement also has implications for how it is interpreted and enforced globally.

The authors refer to the UNTBs in their role as quasi-judicial individual complaints mechanisms established under the United Nations Human Rights Treaties as “soft courts” – an original definition that captures both their quasi-judicial adjudicative function and the lack of express binding force of their decisions.

In their analysis, the authors discuss two key questions: first, how UNTBs interpret the norm of non-refoulement, and second how these interpretations compare to those of the European Court of Human Rights.

The analysis tests, among other things, the assumption shared by many practitioners that such “soft courts” are likely to be more activist and progressive than “hard courts” in the human rights field.  The authors demonstrate that such an assumption is not accurate: Whereas some of the UNTBs, at times, do adopt a more progressive position than their “harder” regional court counterparts, there are also instances where they closely follow the interpretations of the regional courts and, on occasion, adopt a more restrictive position.

Read the full paper here

More about the authors

  • Başak Çalı, Professor of International Law | Co-Director, Centre for Fundamental Rights
  • Cathryn Costello, Professor of Fundamental Rights | Co-Director, Centre for Fundamental Rights
  • Stewart Cunningham, Research Associate | Centre for Fundamental Rights