Content area
Full Text
I. INTRODUCTION
Until the mid-1980s, only refugees could invoke international law to resist removal to a dangerous country of origin. The evolution in international law since that time has been both fast-paced and profound.
This is most clearly true under European human rights law. No less an authority than the House of Lords has declared that the right of non-return extends not only to refugees, but to any person at risk of torture or inhuman or degrading treatment or punishment, and- at least where the risk is clear and extreme- applies also where there is a threat to: life; freedom from slavery; liberty and security of person; protection against ex post facto criminality; privacy and family life; or freedom of thought, conscience, or religion.1
But the dramatic expansion of protection is not limited to Europe. While less easily enforced than the rules of the European safety net,2 the combination at the global level of an explicit duty of non-return in the United Nations Torture Convention3 and of implied duties of non-return grounded in recent authoritative application of Articles 6 and 7 of the Civil and Political Covenant4 now establishes a principled limit on the right of most states to remove a broadly defined group of atrisk non-citizens from their territory.5 More embryonic support for an expanded duty to protect may be found in the Convention on the Rights of the Child6 and through invocation of international humanitarian law, specifically Common Article 3 of the Geneva Conventions.7
The problem is that none of these new sources of international protection expressly defines how members of the broader class of non-returnable persons are to be treated. In contrast to the Refugee Convention, nearly all of which is devoted to defining the precise legal entitlements of members of the protected class (for example, to freedom of internal movement8 and to other civil liberties, as well as to key socioeconomic rights, including to work9 and to access education10), the new protections against refoulement11 are bare-bones entitlements. Members of the beneficiary class may not be returned to the place of risk,12 but there is no express duty in international law to provide them with any particular bundle of rights, much less to enfranchise them in the host community.
This situation...