Padmanabhan: To Transfer or Not to Transfer: Identifying and Protecting Relevant Human Rights Interests in Non-Refoulement

Vijay M. Padmanabhan (Yeshiva Univ. - Cardozo School of Law) has posted To Transfer or Not to Transfer: Identifying and Protecting Relevant Human Rights Interests in Non-Refoulement. Here's the abstract:

Human rights law imposes upon States an absolute duty not to transfer an individual to another State where there are substantial grounds for believing he or she will be tortured or subjected to cruel, inhuman or degrading treatment. This protection, called non-refoulement, emanates from a theory of human rights that recognizes rights fulfillment requires States to protect those within their jurisdiction from rights violations perpetrated by third parties, including other States. Generally human rights law recognizes that resource constraints and/or competing rights restrict protection duties. But such limitations have not been recognized in the non-refoulement context with limited theorization as to the reason.

In recent years the obligation to provide non-refoulement protection has run into conflict with the State’s obligation to protect its public from aliens suspected of involvement in terrorism. Expulsion is the traditional tool available to States to mitigate the threat posed by dangerous aliens. With this tool removed, States often lack an alternative route to mitigate this threat, with criminal prosecution and indefinite detention pending deportation not available for various reasons. The result has been numerous cases where States have been forced either to release dangerous aliens back into their State, consistent with international law, or to find alternative means to deal with the threat in the shadow of human rights law.

This Article argues that human rights law should recognize the important clash of human rights duties that arises in these transfer situations: the State’s duty protect aliens from post-transfer mistreatment clashes with itsduty to protect members of the public from rights violations committed by dangerous private persons within society. Human rights law has in recent years recognized a duty on the part of States to take reasonable operational measures to protect the public from private person harms where the State knows or should know of the risk. In the case of dangerous aliens, these operational measures would presumably include expulsion. By depriving the State of the ability to expel dangerous aliens, non-refoulement protection places the human rights of dangerous aliens and the public into direct conflict.

Recognition of this rights competition is important for two reasons. First, for too long human rights scholars and bodies have dismissed the security consequences of non-refoulement as outside the concern of human rights. Acceptance that these security consequences themselves affect human rights requires consideration of how the law should address the conflict. Second, once a rights competition is accepted, human rights law prescribes a methodology for mediating between conflicting rights: balancing. A balancing approach would allow States a margin of appreciation to determine in the first instance how to choose between competing duties. The role of human rights apparatus, including national courts, international institutions and non-governmental organizations is to monitor this balance and to push States where the balance chosen appears over or under rights protective.