Academic journal article Contemporary Readings in Law and Social Justice

Vulnerability and the Principle of Non-Refoulement in the European Court of Human Rights: Towards an Increased Scope of Protection for Persons Fleeing from Extreme Poverty?

Academic journal article Contemporary Readings in Law and Social Justice

Vulnerability and the Principle of Non-Refoulement in the European Court of Human Rights: Towards an Increased Scope of Protection for Persons Fleeing from Extreme Poverty?

Article excerpt

1. Introduction

"He allegedly spent months living in a state of the most extreme poverty, unable to cater for his most basic needs: food, hygiene and a place to live. [...] Such living conditions [...] have attained the level of severity required to fall within the scope of Article 3 of the Convention."

-MSS v Belgium and Greece paragraphs 254 and 2632

As the above quote from the 2011 MSS v Belgium and Greece case suggests, the European Court of Human Rights (ECtHR) seems increasingly inclined to consider economic, social and cultural rights (economic, social and cultural rights) violations under Article 3 of the European Convention of Human Rights (ECHR), which prohibits torture and inhuman or degrading treatment or punishment.3 The present paper therefore asks: can, and if so, under what circumstances does, the deportation to situations of economic, social and cultural rights violations caused by conditions of extreme poverty form a violation of the non-refoulement principle?4

The research rests on the 1993 Vienna Declaration and Programme of Action's statement that all human rights are "universal, indivisible and interdependent and interrelated."5 This leaves room for a connection of extreme poverty, as encompassed in economic, social and cultural rights, with the prohibition of torture and inhuman or degrading treatment, a right with a civil and political connotation. In order to approach the topic from a legal perspective, extreme poverty is understood as a general concept along the lines of the economic, social and cultural rights it violates. As is stated in the Human Rights Council's Final Draft of the Guiding Principles on Extreme Poverty and Human Rights, "[p]overty is not solely an economic issue, but rather a multidimensional phenomenon that encompasses a lack of both income and the basic capabilities to live in dignity" and as such has to be considered in a more holistic manner.6 The economic, social and cultural rights dealt with in the context of economic refugees in this study are thus considered in general rather than as individual economic, social and cultural rights.7

The principle of non-refoulement of Article 33 of the Convention Relating to the Status of Refugees (CRSR) may offer a possible argument for additional protection requirements.8 Non-refoulement is paradoxical since it is explicitly stated in the CRSR but its content remains undefined under international law.9 As a result, international, regional and national bodies have wide discretion in clarifying its meaning.10

Previous research has discussed and refined the scope of the principle of non-refoulement.11 However, the exact meaning for persons fleeing from extreme poverty remains disputed. This is particularly problematic in light of the current public debate surrounding the deservingness of protection: is someone only entitled to protection if fleeing for reasons recognized by the traditional refugee protection regime of Article 1(A)2 CRSR or subsidiary protection regimes such as Article 15 of the EU Qualifications Directive?12 Or is there also a legal responsibility to not return those leaving their home country for other reasons, particularly if they are or will be in a vulnerable situation upon return?

The subsequent study focuses on the interpretation of the scope of the principle of non-refoulement in the context of the ECHR. This is especially valuable since it is within the Council of Europe that the interpretation of the concept has developed furthest due to the ECtHR's case law.13 Moreover, previous research reveals that the concept of vulnerability is an increasingly important balancing tool for the ECtHR with regard to discrimination issues.14 The present study therefore investigates the extent to which this is also the case with regard to the principle of non-refoulement.

In Airey v UK the ECtHR expressed the opinion that the civil and political rights entailed in the ECHR have social and economic implications. …

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