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THE OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE AND THE DETENTION OF REFUGEES

Published online by Cambridge University Press:  18 November 2008

Alice Edwards
Alice Edwards
Affiliation:
Lecturer, School of Law, University of Nottingham.
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Abstract

The Optional Protocol to the Convention against Torture entered into force on 22 June 2006. It establishes a Sub-Committee for the Prevention of Torture that has authority to visit places of detention and to assess the conditions of that detention as a way to reduce the incidence of torture or cruel, inhuman or degrading treatment or punishment. Additionally, States parties are required to set up complementary national preventive mechanisms. This article explores both how these mechanisms established under the Optional Protocol could operate in the context of the detention of refugees and/or asylum-seekers, which is an increasingly common occurrence in many parts of the world, as well as whether they add value to existing international mechanisms that are already available in this field. It examines the purported applicability of the Optional Protocol to four refugee/asylum situations, namely detention at airports and other border zones; immigration (or administrative) detention, including semi-open (or semi-closed) asylum centres; closed refugee camps; and extraterritorial processing or holding centres. Reviewing definitional, jurisdictional, and practical issues that may impact on the success or otherwise of these new preventive mechanisms, this article concludes by making a number of recommendations to aid their work in the refugee/asylum context.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 57 , Issue 4 , October 2008 , pp. 789 - 825
Copyright
Copyright © 2008 British Institute of International and Comparative Law

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References

1 GA Res 39/46, 10 Dec. 1984; entered into force 26 June 1987.

2 GA Res 2200 A (XXI), 16 Dec. 1966; entered into force 23 March 1976.

3 Regional instruments include: European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (Rome, 4.XI.1950, as amended by its protocols); European Convention on Prevention of Torture and Inhuman or Degrading Treatment or Punishment 1987, Strasbourg, 26.XI.1987, as amended by Protocols No. 1 (E.T.S. No. 151) and No.2 (E.T.S. No. 152); American Declaration on the Rights and Duties of Man 1948 (Res XXX, adopted by the Ninth International Conference of American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc 6 rev 1 at 17 (1992)); American Convention on Human Rights 1969 (signed on 22 Nov 1969 at Inter-American Specialized Conference on Human Rights, held in San José, Costa Rica; entered into force 18 July 1978); Inter-American Convention to Prevent and Punish Torture 1985 (OAS Treaty Series No. 67, Doc OEA/Ser.L.V/II.82 Doc 6 Rev 1 at 83 (1992); entered into force 28 Feb 1987); African Charter on Human and Peoples' Rights 1981 (Adopted at the 18th Assembly of Heads of State and Government of the African Commission, 26 June 1981; entered into force 21 Oct 1986; 21 ILM 59).

4 189 UNTS 137, 28 July 1951; entered into force 22 April 1954.

5 606 UNTS 267, 31 Jan. 1967; entered into force 4 October 1967.

6 See, UNHCR, Note on International Protection, UN Doc A/AC.96/1038, 29 June 2007, para 15. See, further, Executive Committee of the High Commissioner's Programme, Standing Committee, Detention of Asylum-Seekers and Refugees: The Framework, the Problem and Recommended Practice, UN Doc EC/49/SC/CRP.13, 4 June 1999.

7 For country-specific information on detention of asylum-seekers, refugees and/or migrants, see O Field and A Edwards, Study on Alternatives to Detention of Asylum Seekers and Refugees, UNHCR, Legal and Protection Policy Series, UN Doc POLAS/2006/03, Geneva, 2006, which contains 34 country annexes, available at: http://www.unhcr.org/protect/PROTECTION/4474140a2.pdf; ‘Barbed Wire Europe: Conference against Immigration Detention’, held Ruskin College, Oxford, 15–17 Sept 2000 (2000) 13(4) J Ref Studies 415; UNHCR, Detention of Asylum-Seekers in Europe, European Series, Vol 1, No 4, 1995, reprinted Jan 1996, UNHCR Geneva; J Hughes & O Field, ‘Recent Trends in the Detention of Asylum Seekers in Western Europe’, in J Hughes & F Liebaut (eds), Detention of Asylum Seekers in Europe: Analysis and Perspectives 5 (1998); Jesuit Refugee Service, Detention in Europe website at http://www.detention-in-europe.org/.

8 US Immigration and Customs Enforcement, Fact Sheet: ICE Office of Detention and Removal Operations, 4 May 2004, referred to by B Frelick, Amnesty International USA, ‘US Detention of Asylum-Seekers and Human Rights’, Migration Policy Institute Migration Information Resource, March 2005.

9 Amnesty International, United Kingdom: Seeking Asylum is Not a Crime: Detention of People Who Have Sought Asylum, AI Doc. EUR 45/015/2005, 20 June 2005, 43.

10 UNHCR, Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum-Seekers, Feb 1999, para 1.

11 UNHCR, Agenda for Protection (3rd edn, 2003) 38, available at: http://www.unhcr.org/protect/PROTECTION/3e637b194.pdf.

12 GA Res A/RES/57/199, 18 Dec. 2002; entered into force 22 June 2006.

13 The 1951 Refugee Convention contains two relevant provisions, namely Arts 31(1) (prohibits the penalisation of asylum-seekers and refugees who have entered or are staying in the territory illegally, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence), 31(2) (limits the restrictions a state party may impose on the movement of refugees falling under Art 31(1)), and 26 (guarantees the right of refugees lawfully in the territory to choose their place of residence and to move freely within the territory subject only to any regulations applicable to aliens generally in the same circumstances). For more information, see G Goodwin-Gill, ‘Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-Penalization, Detention, and Protection’, in Feller, Türk and Nicholson (eds), Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (Cambridge University Press, 2003) 185.

14 Part III, OPCAT.

15 Part IV, OPCAT.

16 For up-to-date status of ratifications, see http://www2.ohchr.org/english/bodies/ratification/9_b.htm#ratification

17 Art. 35, 1951 Refugee Convention; Art. 8, 1950 Statute of the Office of the United Nations High Commissioner for Refugees, GA res. 428 (V), 14 Dec. 1950.

18 eg the International Committee of the Red Cross in the context of armed conflict; the Working Group on Arbitrary Detention (its mandate was extended in 1997 to cover administrative custody of asylum-seekers and immigrants); UN Special Rapporteur on Torture and Cruel, Inhuman or Degrading Treatment; African Commission Special Rapporteur on Prisons and Conditions of Detention in Africa; the European Committee on the Prevention of Torture; the Inter-American Special Rapporteur on the Rights of Persons Deprived of their Liberty.

19 Art 1(2), Organisation of African Unity (now African Union) Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted by the Assembly of Heads of State and Government, Addis Ababa, Sept 10, 1969; entered into force June 20, 1974) expands the 1951 Convention definition to include persons who are compelled to leave their place of habitual residence due to ‘external aggression, occupation, foreign domination or events seriously disturbing public order in either the whole or part of the territory.’ Similarly, the 1984 Cartagena Declaration recommends an enlargement of the definition of a ‘refugee’ in the 1951 Convention to incorporate ‘persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.’ (Cartagena Declaration on Refugees 1984, adopted by the Colloquium of the International Protection of Refugees in Central America, Mexico and Panama, Part III, para 3). Arts. 2(c) (refugee) and (e) (subsidiary protection), EC Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons who otherwise need International Protection and the Content of the Protection Granted, places obligations on EU Member-States to grant subsidiary protection to individuals fleeing (a) death penalty or execution; (b) torture or inhuman or degrading treatment or punishment; (c) individual and serious threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

20 Art 1, OPCAT.

21 On background to the OPCAT, see MD Evans, ‘Getting to Grips with Torture’ (2002) 51 ICLQ 365.

22 eg the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (n 3), establishes a Committee on the Prevention of Torture that, ‘by means of visits, examine[s] the treatment of persons deprived of their liberty with a view to strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading treatment or punishment’ (Art 1). See, http://www.cpt.coe.int/en/.

23 M Evans and C Haenni-Dale, ‘Preventing Torture? The Development of the Optional Protocol to the UN Convention Against Torture’ (2004) 4 Hum Rts L Rev 19, 50.

24 Art 2(1), OPCAT.

25 Arts 4 & 12, OPCAT. Evans and Haenni-Dale (n 23) 47 refer to the fact that the OPCAT does not require prior consent to visit a place of detention, plus the fact that the SPT has the ‘liberty to choose the places it wants to visit …’ (Art 14(1)(e)), as ‘at best a mealy-mouthed way of providing for a right of unannounced access to all places of detention.’ But they later go on to state that ‘[t]he truth is that the text neither prohibits nor authorises such [unannounced] visits …’

26 Art 14(4), OPCAT provides: ‘Objection to a visit to a particular place of detention may be made only on urgent and compelling grounds of national defence, public safety, natural disaster or serious disorder in the place to be visited that temporarily prevent the carrying out of such a visit. The existence of a declared state of emergency as such shall not be invoked by a State party as a reason to object to a visit.’

27 Evans and Haenni-Dale (n 23) 48.

28 Art 5(1) OPCAT.

29 Art 5(2) OPCAT.

30 Art 5(6) OPCAT.

31 Art 5(3) and (4) OPCAT.

32 Art 11(c) OPCAT.

33 Art 15 OPCAT.

34 Art 13(3) OPCAT.

35 The list has yet to be made public however.

36 Art 11(a) OPCAT.

37 Art 16 OPCAT.

38 Art 11(b) OPCAT.

39 Art 16(1) OPCAT.

40 Art 13(4) OPCAT. For more information on the OPCAT, see Association pour la Prévention de la Torture, The Optional Protocol—A Manual for Prevention, available at: http://www.apt.ch/.

41 Art 3 OPCAT.

42 Art 18 OPCAT.

43 Art 18(4) OPCAT. These principles would include the Paris Principles relating to the Status of National Institutions, Human Rights Commission Res 1992/54, 1993; GA Res 48/134, 1993.

44 Art 19 OPCAT.

45 Art 4 OPCAT.

46 Art 20 OPCAT.

47 Art 21 OPCAT.

48 Art 22 OPCAT.

49 Art 23 OPCAT.

50 Art 11(b)(i) and (ii) OPCAT.

51 Human Rights Committee General Comment No 15 on ‘The Position of Aliens under the Covenant’, UN Doc CCPR/C/21/Rev.1 (19 May 1989) para 2. See also, Human Rights Committee, ‘General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, UN Doc CCPR/C/21/Rev.1/Add.13 (29 March 2004); Committee on the Elimination of Racial Discrimination, ‘General Recommendation XI on Non-Citizens,’ UN Doc A/46/18 (19 March 1993).

52 On the inter-relationship between international refugee law and international human rights law, see A Edwards, ‘Human Rights, Refugees and the Right to “Enjoy” Asylum’ (2005) 17(2) Int'l J Ref L 297; A Edwards, ‘Crossing Legal Borders: The Interface Between Refugee Law, Human Rights Law and Humanitarian Law in the “International Protection” of Refugees’, in R Arnold & N Quenivet (eds), International Humanitarian Law and International Human Rights: Towards a New Merger in International Law (Brill Publishing, 2008).

53 Executive Committee Conclusion No. 82(XLVIII) on Safeguarding Asylum, P (d)(vi) (1997). See also, EXCOM Conclusion Nos 19 (XXXI), P (e) (1980); 22 (XXXII), P B (1981); and 36 (XXXVI), P (f) (1985). See further, UNHCR, A Thematic Compilation Of Executive Committee Conclusions On International Protection (2nd edn, reprinted Sept 2005) Chapter on ‘Human Rights’ 183–205, available at: www.unhcr.org/publ/PUBL/3d4ab3ff2.pdf.

54 Art 4(1) OPCAT.

55 Art 4(2) OPCAT.

56 Art 31 Vienna Convention on the Law of Treaties 1969, 23 May 1969; entered into force 27 Jan 1980; 1155 UNTS 331.

57 UNHCR, Revised Guidelines on Detention (n 10) Guideline 1, para 1 (emphasis added).

58 Ibid.

59 UNHCR, Revised Guidelines on Detention (n 10) Guideline 1, para 2.

60 The guarantee of freedom of movement and choice of residence in Art 12 ICCPR applies to those ‘lawfully in the territory’ rather than more broadly, although the Human Rights Committee has held that ‘[c]onsent for entry may be given subject to conditions relating, for example, to movement, residence and employment. A State may also impose general conditions upon an alien who is in transit. However, once aliens are allowed to enter the territory of a State party they are entitled to the rights set out in the Covenant.’ (para 6) On freedom of movement generally, see Human Rights Committee General Comment No 27: Freedom of movement (Art 12), UN Doc CCPR/C/21/Rev.1/Add.9, 2 Nov 1999. See, further, C Harvey & RP Barnidge Jr, ‘Human Rights, Free Movement, and the Right to Leave in International Law’ (2007) 19(1) Int'l J Ref L 1.

61 Art 2(k), EU Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, L31/18 Official Journal of the European Union 6.02.2003.

62 UNHCR annotated comments on COUNCIL DIRECTIVE 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, dated 1 July 2003, available at: http://www.unhcr.org/doclist/protect/436730642/skip-15.html.

63 Evans and Haenni-Dale (n 23) 44.

64 Amuur v France, ECtHR, 25 June 1996 (1996) I.I.H.R.L. 39 (25 June 1998) para 48.

65 Art 4(2) OPCAT.

66 On private companies operating immigration detention, see C Bacon, The Evolution of Immigration Detention in the UK: The Involvement of Private Prison Companies (Refugee Studies Centre, Oxford University, Working Paper No 27, Sept 2007).

67 RY Jennings, ‘Extraterritorial Jurisdiction and the United States Antitrust Laws’ (1957) 33 Brit YB Int'l L 146, fn 1.

68 See DJ Harris, Cases and Materials on International Law (6th edn, Sweet & Maxwell, 2004) Chapter 6.

69 J Beale in (1923) Harvard Law Review 36, 241 stating that territorial jurisdiction is ‘everywhere regarded as of primary importance and of fundamental character.’ (re-stated in Jennings (n 67) 148). See, also, Banković v Belgium and 16 Other Contracting States, Applic No 52207/99, Admissibility Decision 12 Dec. 2001, 41 ILM (2002), paras 59–61, in which it was stated: ‘The jurisdictional competence of a State is primarily territorial.’

70 Jennings (n 67) 149.

71 ILC Articles on State Responsibility for Internationally Wrongful Acts, 31 May 2001, Yearbook of International Law Commission 2001, vol. II, Part 2, UN Doc. A/56/10, GA res. 56/83, 12 Dec 2001 and corrected by A/56/49 (Vol I) Corr 4, available at: http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf.

72 Loizidou v Turkey (Preliminary Objections) (1995) 20 EHRR 99. See further (n 76) 78–81. See, also, Banković (n 69); cf Al-Skeini v Sec'y of State for Defence [2007] UKHL 26 (UK House of Lords rejected the responsibility of the UK for the actions of members of its armed forces in Iraq in killing and mistreating Iraqi civilians, with the exception of one complainant who was mistreated and killed in a British military prison). See further M Happold, ‘Bankovic v. Belgium and the Territorial Scope of the European Convention on Human Rights’ (2003) 3 Hum Rts L Rev 77; M Gondek, ‘Extraterritorial Application of the European Convention on Human Rights: Territorial Focus in the Age of Globalization?’ (2005) 52 Neth Int'l L Rev 349.

73 Committee against Torture, ‘Conclusions and Recommendations of the Committee against Torture on the United States of America’, UN Doc CAT/C/USA/CO/2, 18 May 2006, paras 15 and 26. See, further, Committee against Torture, ‘Conclusions and Recommendations of the Committee against Torture on the United Kingdom of Great Britain and Northern Ireland, Crown Dependencies and Overseas Territories’, UN Doc CAT/C/CR/33/3, 25 Nov 2004, para 4(b).

74 Preambular para 3, OPCAT (emphasis added).

75 Art 5 of the UNCAT reveals that territorial jurisdiction is not exclusive and other types of jurisdiction are acknowledged, including where torture is committed on board a ship or aircraft registered to the state [flag], where the alleged offences are committed by a national of the state [nationality], or where the victim is a national of the state where it is considered appropriate [passive personality].

76 CAT, Conclusions and Recommendations on the USA (n 73) paras 15 and 26. See further CAT, Conclusions and Recommendations on the UK (n 73) para 4(b).

77 CAT, Conclusions and Recommendations on the USA, ibid para 20.

78 HRC, General Comment No 31, above (n 51) para 10.

79 Inter-American Commission on Human Rights, Precautionary Measures in Guantanamo Bay, Cuba, 13 Mar 2002: the detainees at Guantanamo Bay ‘remain wholly within the authority and control of the United States government and jurisdiction is, therefore, exercised over them.'

80 International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: Advisory Opinion [2004] ICJ Reports 136, 9 July 2004, para 108.

81 See, eg International Court of Justice, Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda), ICJ General List No 116, 19 Dec 2005, para 220.

82 HRC, General Comment No 15 (n 51) para 1. See further Lopez Burgos v Uruguay, HRC Case No R.12/52, UN Doc Supp No 40 (A/36/40) 176 (1981), para 12.2. This case involved the kidnap, abduction and mistreatment of Lopez Burgos, a Uruguayan national, on Argentine soil by Uruguayan intelligence and security forces. See, further, Lilian Celiberti de Casariego v Uruguay, No 56/79 and Montero v Uruguay, Case No 106/81.

83 For more on this, see The Optional Protocol to the Convention against Torture: Preventive Mechanisms and Standards, Conference Report, Report on the First Annual Conference on the Implementation of the Optional Protocol to the UN Convention Against Torture (OPCAT), University of Bristol, 19–20 April 2007, 34, available at: http://www.bristol.ac.uk/law/research/centres-themes/opcat/conference.html (last accessed 12 Oct. 2007) 17.

84 Art 4 ILC Articles on State Responsibility (n 71).

85 Art 5 ILC Articles on State Responsibility, Ibid.

86 Of course, this would not alleviate any private contractors from criminal prosecution or civil suit under national law.

87 Art 2(2) OPCAT.

88 Art 19(b) OPCAT.

89 Art 19(c) OPCAT

90 Art 1(1) of the UNCAT provides: ‘For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him [or her] or a third person information or a confession, punishing him [or her] for an act he [or she] or a third person has committed or is suspected of having committed, or intimidating or coercing him [or her] or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.' Art. 16 of the UNCAT provides: ‘Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment’

91 Art 16(3) provides that the SPT shall present a public annual report on its activities to the Committee against Torture; and Art 16(4) allows the Committee against Torture, at the request of the SPT, to make a public statement about the SPT's report where the State Party refuses to cooperate with the SPT (in accordance with Arts 12 and 14 – mostly relating to access to detention facilities and information about those detention facilities).

92 See on the difficulties of the definition of ‘torture’ under international law: Evans (n 21); A Edwards, ‘The “Feminizing” of Torture under International Human Rights Law’ (2006) 19 Leiden J Int'l L 349; DJ Harris, M O'Boyle, C Warbrick, and E Bates, Law of the European Convention on Human Rights (Oxford University Press, 1995); A Mowbray, Cases and Materials on the European Convention on Human Rights (2nd edn, Oxford University Press, 2007).

93 Evans (n 21) 368.

94 ibid 369.

95 Arts 26 and 31 Refugee Convention 1951.

96 UNHCR, Note on Accession to International Instruments and the Detention of Refugees and Asylum-Seekers, UN Doc EC/SCP/44, 19 Aug 1986, paras 46 & 47.

97 ibid para 47.

98 EXCOM Conclusion No 44 (XXXVII) (1986) Detention of Refugees and Asylum-Seekers, para (b).

99 UNHCR, Revised Guidelines on Detention (n 10) para 1.

100 EXCOM Conclusion No 44 (XXXVII) (1986) Detention of Refugees and Asylum-Seekers, para (b). See, further, EXCOM Conclusion No 55 (XL) (1989), para (g).

101 UNHCR, Revised Guidelines on Detention (n 10) Guideline 3 (my emphasis).

102 EXCOM Conclusion No 44 (XXXVII) (1986) Detention of Refugees and Asylum-Seekers, para (f).

103 Ibid.

104 ibid para (e).

105 ibid para (g).

106 ibid, para (c). See, further, EXCOM Conclusion No 3 (XXVIII) (1977), para (a). See, also, EXCOM Conclusion Nos 36 (XXXVI) (1985), para (f); 46 (XXXVIII) (1987), para (f); 47 (XXXVIII) (1987), para (e); 50 (XXXIX) (1988), para (i); 55 (XL) (1989), para (g); 65 (XLII) (1991), paras (c) & (j); 68 (XLIII) (1992), para (e); 71 (XLIV) (1993), para (f); 85 (XLIX) (1998), para (cc), (dd) & (ee); 89 (LI) (2000), preamble; 93 (LIII) (2002), preamble.

107 See, eg EXCOM Conclusion No 85 (XLIX) (1998), para (cc).

108 EXCOM Conclusion No 3 (XXVIII) (1977), para (e).

109 See, eg EXCOM Conclusion No. 65 (XLII) (1991), para (j).

110 Art 5(1)(a) UN Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live, GA Res 40/144, 13 Dec 1985.

111 Art 6 UN Declaration, Ibid.

112 Arts 10 (prohibition on torture and cruel, inhuman or degrading treatment or punishment), 16(1) (liberty and security of person) & 16(4) (individual or collective arbitrary arrest or detention), GA Res 45/158, 18 Dec. 1990; entered into force 1 July 2003.

113 Art 2(1) defines a ‘migrant worker’ as ‘a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.’ Art 3 excludes ‘Refugees and stateless persons, unless such application is provided for in the relevant national legislation of, or international instruments in force for, the State Party concerned.’ See Edwards (n 52).

114 EXCOM Conclusion No 93 (LIII) (2002), Conclusion on Reception of Asylum-Seekers in the Context of Individual Asylum Systems, para (b) (iii).

115 UNHCR, Reception of Asylum-Seekers, Including Standards of Treatment, in the Context of Individual Asylum Systems, Global Consultations on International Protection, 3rd meeting, UN Doc EC/GC/01.17, 4 Sept 2001, Annex, para (e).

116 UNHCR, Reception of Asylum-Seekers, Ibid., Annex, para (e).

117 See A v Australia, HRC 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997).

118 It is well accepted under international law that individuals cannot be returned or expelled to places where they would be subject to torture or other forms of ill-treatment (see Chahal v United Kingdom, 15 Nov 1996, Reports 1996-V), but note that Article 33 of the 1951 Convention (the non-refoulement provision in refugee law) is not absolute. On the latter, see Sir E Lauterpacht and D Bethlehem, ‘The scope and content of the principle of non-refoulement: Opinion’, in Feller, Türk and Nicholson (n 13) 90–140.

119 EXCOM Conclusion No 22 (XXXII) (1981), Part II B 2 (d).

120 Art 7(3), EU Council Directive on minimum reception conditions (n 61).

121 UNHCR annotated comments on EU Council Directive on minimum reception conditions (n 62).

122 Ibid.

123 Art 29 VCLT.

124 See Amuur v France (n 64).

125 eg Australia introduced laws in 2001 and later that ‘excised’ territory from the operation of its national migration laws. See A Edwards, ‘Tampering with Refugee Protection: The Case of Australia’ (2003) 15(3) Int'l J Ref L 192 (in which I argue that these laws contravene basic principles of treaty law).

126 See http://www.cpt.coe.int/en/

127 EXCOM Conclusion No 91 (LII) (2001) Conclusion on Registration of Refugees and Asylum-Seekers.

128 Art 33 Refugee Convention 1951.

129 See Field and Edwards (n 7); Jesuit Refugee Service (n 7).

130 At the time of writing, this internationally criticized policy still formed part of Australian national law, although it is noted that the recent change in government may lead to a revision of this unpopular policy. See, Australian Human Rights and Equal Opportunity Commission (HREOC), Summary observations following the Inspection of Mainland Immigration Detention Facilities 2007, Jan 2008; HREOC, A Last Resort? The report of the National Inquiry into Children in Immigration Detention, 13 May 2004; Amnesty International, The impact of indefinite detention: the case to change Australia's mandatory detention regime, AI Index: ASA 12/001/2005, 30 June 2005; United Nations Working Group on Arbitrary Detention, Visit to Australia, UN Doc. E/CN.4/2003/8/Add.3, 24 Oct 2002, para 14.; Al Kateb v Godwin [2004] HCA 37, 6 Aug 2004 (and Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji [2004] HCA 38, 6 Aug. 2004; A v Australia (n 117); C v Australia, HRC 900/1999, UN Doc. CCPR/C/76/900/1999 (2002).

131 The UK ratified the OPCAT on 10 December 2003. Detention of asylum-seekers is not mandatory in the UK but can be ordered by an immigration officer according to internal Home Office Guidelines. Questions relate to the asylum seeker's previous compliance with immigration law, record of absconding, illegal entry or the use of false documentation, expectations regarding the outcome of the claim, the likelihood and ease of removal, family ties in the UK, compassionate circumstances and whether there are ‘factors which afford an incentive for him [or her] to keep in touch with the port’. In line with its obligations under the OPCAT, the UK has allocated responsibility for national prevention to existing bodies that are already engaged in prisons and custodial inspection, see presentation by Mr. John Kissane, Department of Constitutional Affairs, ‘Optional Protocol to the United Nations Convention against Torture’ at a Seminar on Implementation in Latvia and other Baltic States, Riga, Latvia, 27–28 May 2005. For reports conducted by these immigration inspections, see http://inspectorates.homeoffice.gov.uk/hmiprisons/inspect_reports/. It is immediately evident that such an approach may not cover all forms of detention, nor do so in a systematic manner. See, Field and Edwards (n 7) 206–222 (Annex on United Kingdom). Amnesty International, Seeking asylum is not a crime: detention of people who have sought asylum, AI Index: EUR 45/015/2005, 20 June 2005, 35–59; Secretary of State for the Home Department ex parte Saadi (FC) And Others (FC) (Appellants) [2002] UKHL 41 (Oakington Detainees Case); Saadi v United Kingdom, European Court of Human Rights, Applic No 13229/03, 11 July 2006; Grand Chamber decision 29 Jan 2008.

132 New Zealand ratified the OPCAT on 14 Mar. 2007 and has designated the Ombudsman as the NPM who has been granted specific authority to visit places of detention of refugees and migrants, see Crimes of Torture Act 1989 (NZ), Part 2 and Ombudsmen Act 1975 (NZ). See, further, Field and Edwards (n 7) (Annex on New Zealand).

133 The US, for example, in 2001 and 2003 introduced nationality-based detention policies targeting Haitian asylum-seekers and asylum-seekers from 33 other countries and two territories—mostly Middle Eastern and other Muslim countries and territories. See, eg UNHCR News Story, ‘UNHCR concerned about US detention of asylum seekers’, 21 March 2003; Human Rights First, ‘Haitian Refugees and the U.S. Asylum System’ (undated; 2003); Human Rights First, The Detention of Asylum Seekers in the United States: Arbitrary under the ICCPR, Jan 2007, 8.

134 EXCOM, Detention of Asylum-Seekers and Refugees: The Framework, the Problem and Recommended Practice (n 6), paras 19 and 20.

135 The JRS noted a wide range of concerns in regards to asylum-seekers in detention, such as the prolonged nature of that detention; detention alongside criminals; housing of men and women together when not related by blood or marriage; lack of access to legal advice; inability to pursue meaningful activities; psychological effects of detention, such as withdrawal, depression, or self-harm; inadequate facilities; denial of visitors; riots and other forms of violence; and separation of families: see, Jesuit Refugee Service, Detention in Europe: Administrative Detention of Asylum-Seekers and Irregular Migrants, 17 Oct 2005.

136 HREOC, A Last Resort? (n 130); Amnesty International, The Impact of Indefinite Detention, (n 130).

137 US Committee on Refugees and Immigrants, World Refugee Survey 2007, Table I.

138 Ibid.

139 eg Kenya operates camp confinement policies, in which refugees are confined to closed camps by order, decree or law and are not able to leave at will. Departure from such camps is prohibited and those found outside the camps are liable to prosecution for illegal stay, entry or vagrancy. Kenya has not acceded to the OPCAT. See, eg Human Rights Watch, Hidden in Plain View: Refugees living without protection in Nairobi and Kampala, Human Rights Watch, Nov 2002. A new development since HRW report is publication of: the Refugees Act 2006, in Kenya Gazette Supplement No 97 (Acts No 13), Republic of Kenya, Nairobi, 2 Jan 2007 (on file with the author). The new law provides that any person claiming refugee status shall not be ‘detained or penalized in any way …’ for ‘merely … illegal entry …’ (s 11(3)) and that the management of refugee camps is the responsibility of the Commissioner for Refugee Affairs (s 7(2)(k)). It further provides that the Minister may designate places and areas in Kenya to be ‘transit centres’ or ‘refugee camps’ (s 16(2)). Within such refugee camps, a ‘refugee camp officer’ may ‘issue movement passes to refugees wishing to travel outside the camps …’ (s 17(f)). No mention is made in the Act that refugees will be required to live in these camps, but this can be implied from the language. Further regulations relating to the ‘control and regulation of persons who may be required to live within a designated place or area’ may be issued (s 26(2)(h)). See also EO Abuya, ‘Past Reflections, Future Insights: African Asylum Law and Policy in Historical Perspective’ (2007) 19 (1) Int'l J Ref L 51.

140 By way of comparison, see Guzzardi v Italy, ECtHR (1981) 61 ILR 227 or (1981) EHRR 333. In this case, the applicant, a suspect in illegal mafia activities, was ordered to live for 16 months on a remote island off the coast of Sardinia. He was restricted to a hamlet in an area of the island of some 2.5 sq kms that was occupied solely by persons subject to such orders, although the applicant's wife and child were allowed to live with him. He was able to move freely in the area and there was no perimeter fence. He was also required to report twice daily and was subject to curfew. The European Court of Human Rights held that the applicant's conditions fell within Art 5 ECHR (that is, arbitrary detention). In Ashingdane v UK, ECtHR Case No A 93 (1985), the European Court found that the compulsory confinement of a mentally ill patient in a mental hospital under a detention order invoked Art 5 protections, even though he was in an ‘open’ (ie unlocked) ward and was permitted to leave the hospital unaccompanied during the day and over the weekend (para 42). Parallels can be made between these cases and the asylum detention practices of some states.

141 Art 12 ICCPR.

142 EXCOM Conclusion No 22 (XXXII), The Protection of Asylum-Seekers in Situations of Large-Scale Influx, 21 Oct 1981.

143 G Goodwin-Gill and J McAdam, The Refugee in International Law (3rd edn, Oxford University Press, 2007) 466–471.

144 Art 2(6) OAU Convention.

145 R (Limuela, Tesema, & Adam) v Sec'y of State for the Home Department [2005] UKHL 66.

146 Minister for Home Affairs v Watchenuka (2004) 1 All SA 21 (SA SCA 28 Nov 2003).

147 See HRC, C v Australia (n 130).

148 J Crisp, ‘Forms and Sources of Violence in Kenya's Refugee Camps’ (2000) 19 Ref Survey Qty 54.

149 eg UNHCR/Save the Children Investigation into sexual exploitation of refugees by aid agencies in West Africa, 2002; ‘The UN Sex Scandal,’ The Weekly Standard, 3–10 Jan. 2005 (on UN peacekeeper sexual violence against refugees in Democratic Republic of Congo).

150 UN Human Rights Committee General Comment No. 28, Equality of rights between men and women (article 3), UN Doc. CCPR/C/21/Rev.1/Add.10, 29 Mar. 2000. See, further Edwards (n 92).

151 See, eg Aydin v Turkey, ECHR 1997-VI (GC), Judgment (Merits and just satisfaction), 25 Sept 1997; MC v Bulgaria, ECHR Appl No 39272/98, 4 Dec 2003.

152 See, eg Raquel Martí de Mejía v Peru, Case 10.970, Report No 5/96, IACHR, OEA/Ser. L/V./II.91 Doc. 7, 157 (1996); Loayza-Tamayo v Peru, C33, Judgment 17 Dept 1997. The Inter-American Court of Human Rights.

153 eg Concluding Observations on Greece, UN Doc. CAT/C/CR/33/2, 10 Dec 2004, para 5(k); Zambia, UN Doc. A/57/44, 25 Aug. 2002, para. 7(c); Concluding Observations on USA, contained in Report of Committee against Torture, UN Doc. A/55/44 (2000), para 179; Concluding observations on Egypt, contained in Report of Committee against Torture, UN Doc A/55/44 (2000), para 209. The Special Rapporteur on Torture has recognised sexual violence as a method of physical torture, UN Doc E/CN.4/1986/15, para 119; see, further, Edwards (n 92).

154 R Wilde, ‘Quis Custodiet Ipsos Custodes?: Why and How UNHCR Governance of “Development” Refugee Camps Should be Subject to International Human Rights Law’ (1998) 1 Yale Hum Rts & Dev L J 107, 113.

155 See, eg EXCOM Conclusion No 81 (XLVIII), para (d) (1997): ‘Emphasizes that refugee protection is primarily the responsibility of States, and that UNHCR's mandated role in this regard cannot substitute for effective action, political will, and full cooperation on the part of States …’

156 Art 2 ILC Articles on Responsibility of States (n 71).

157 A Clapham, Human Rights Obligations of Non-State Actors 109 (2006), citing the European Court of Human Rights in Waite and Kennedy v Germany (2000) 30 EHRR 261, P 67. See also Report of the International Law Commission, 58th Session, UN Doc A/61/10, P 284–286 (2006).

158 Art 1 Statute of the UNHCR 1950.

159 Draft Arts 1 and 3(2), ILC, Report of the International Law Commission on the Work of its 56th Session, UN Doc A/59/10 (2004), para 71.

160 Reparations for injuries suffered in the service of the United Nations [1949] ICJ Reports 174, 179. See, also, Interpretation of the Agreement of 25 March 1951 Between the WHO and Egypt [1980] ICJ Reports 73, 89–90, in which it was stated that ‘international organizations are subjects of international law and, as such are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under agreements [to] which they are parties.’

161 As the UNHCR is not a party to the human rights treaties, it has obligations under customary international human rights law, although its mandate over international protection may well invoke a still wider array of human rights obligations.

162 R Wilde, ‘Quis Custodiet Ipsos Custodes? (n 154) 119.

163 The EU Dublin II Regulation is an example of a regional legal regime that involves the transfer of asylum-seekers from one EU Member State to another, depending on which State is deemed (more) responsible: Council Regulation EC/343/2003 of 18 Feb 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third country national [2003] OJ No L 50/I (‘Dublin II Regulation’). Another example is the Council Directive 2005/85/EC of 1 Dec. 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status [2005] OJ L 326/13 under which Member States can return asylum applicants to ‘safe third countries’ or ‘super safe third countries’ outside the EU if a connection is found between that person and the so-called ‘safe third country’.

164 The current format of the Regional Protection Programmes are two-fold: first they aim to strengthen protection capacity in regions of origin with the support of EU funds and second they envisage an EU resettlement scheme in which refugees selected from the target region would be transferred to the EU, see M Garlick, ‘The EU Discussions on Extraterritorial Processing: Solution or Conundrum?’ (2006) 18 Int'l J Ref L 601, 624–629.

165 On the Tampa saga, see, eg T Magner, ‘A Less than “Pacific” Solution for Asylum Seekers in Australia’ (2004) 16 Int'l J. Ref. L. 53; A. Schloenhardt, ‘To Deter, Detain and Deny: Protection of Onshore Asylum Seekers in Australia’ (2002) 14 Int'l J Ref L 302. Migration Amendment (Designated Unauthorised Arrivals) Act; Bill No 06058, Explanatory Memorandum 11 May 2006. See, Amnesty International, Public Statement: Australia: One step forward—two steps back: Amnesty International calls for an immediate halt to proposed legislation to punish asylum seekers arriving by boat, AI Index: ASA 12/002/2006, 26 April 2006. See, further, failed attempts at expanding the reach of the policy to include all unauthorised entrants, Australian Senate Legal and Constitutional Affairs Committee, Report on Provisions of the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006, 13 June 2006. Note that the newly elected government has closed the Nauru refugee camps and relocated the remaining detainees to Australia, see ‘Last refugees bid farewell to Nauru’, The Age, 6 Feb 2008.

166 UNHCR, State of the World's Refugees, 2006, Chapter 2.

167 For a thorough overview of the details of such proposals, see Garlick (n 164).

168 European Parliament, Resolution on Lampedusa, EP Res P6_TA(2005)0138, April 2005, para G.

169 Amnesty International, Italy: Lampedusa, the island of Europe's forgotten promises, AI Index: EUR 30/008/2005, 6 July 2005.

170 UNHCR, State of the World's Refugees (n 166).

171 For a description of the early camps, see Amnesty International, Australia-Pacific: Offending human dignity—the ‘Pacific Solution’, AI Index: ASA 12/009/2002, 25 Aug 2002.

172 See ‘Sri Lankan asylum-seekers left in limbo’, The Age, 19 Mar 2007 (Sri Lankan Tamil asylum-seekers transferred to Nauru); ‘The Forgotten’, The Age, 28 Mar 2005 (54 Iraqi asylum-seekers on Nauru).

173 Amnesty International, UK/EU/UNHCR: Unlawful and Unworkable—Amnesty International's views on proposals for extraterritorial processing of asylum claims, AI Index: IOR 61/004/2003, 18 June 2003.

174 For more on this, see Report on the First Annual Conference on the OPCAT (n 83) 17.

175 Kindler v Canada, UN Doc A/48/50, 138, 30 July 1993: ‘If a State party extradites a person within its jurisdiction in circumstances such that as a result there is a real risk that his or her rights under the Covenant will be violated in another jurisdiction, the State party itself may be in violation of the Covenant.’ For additional cases that elaborate the position of the HRC, see D McGoldrick, ‘Extraterritorial Application of the International Covenant on Civil and Political Rights’, in F Coomans and MT Kamminga (eds), Extraterritorial Application of Human Rights Treaties (Intersentia, Antwerp, 2004) 41. See further S Legomsky, ‘Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning of Effective Protection’ (PPLA/2003/01, UNHCR, Department of International Protection, 2003) and S Taylor, ‘Protection Elsewhere/Nowhere’ (2006) 18 Int'l J Ref L 283.

176 Lopez Burgos v Uruguay (n 82) para 12.3. See also Lilian Celeberti de Casariego v Uruguay (n 82).

177 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: Advisory Opinion (n 80) para 109, referring to Commission on Human Rights, UN Doc E/CN.4/SR.194, para 46 and UN, Official Records of the General Assembly, Tenth Session, Annexes A/2929, Part II, Chapter V, para 4 (1955). In making this statement, ultimately the ICJ concluded that the territories occupied by Israel for 37 years have been and are subject to the ‘territorial jurisdiction’ of Israel as the occupying Power.

178 ILC Articles on State Responsibility (n 71) para (6).

179 See, eg Arts 1, 4, 11, 12 and 14 OPCAT.

180 Arts 26 and 31 VCLT.

181 Of course, any assessments on detention would ultimately need to be made by an independent judicial authority taking into account the particular circumstances of the individual's case, but there are still some situations in which it is possible to state that detention per se is unlawful (such as mandatory detention without periodic judicial review).

182 eg a range of reports of the UN Working Group on Arbitrary Detention, available at: http://www.ohchr.org/english/issues/detention/index.htm; and the UN Special Rapporteur on Torture, available at: http://www.ohchr.org/english/issues/torture/rapporteur/.

183 A further concern is that the transfer of names of individuals to the government in confidence could pose security risks to such individuals and would need to be taken into account by the SPT before doing so.

184 Art 35 Refugee Convention 1951.

185 Art 8 Statute of the UNHCR.

186 See above (n 3).

187 Sub-Commission on Human Rights Res 2000/21, Detention of Asylum-seekers, 27th meeting, 18 Aug 2000, para 7.

188 See, eg Field and Edwards (n 7); UNHCR, Detention of Asylum-Seekers in Europe (n 7).

189 See above (n 10).

190 In addition, the number of sub-committee members will increase to 25 upon the 50th ratification: Art 5(1) OPCAT.

191 UNHCR, see www.unhcr.org.

192 Any prioritizing exercise may be initially hindered as the OPCAT provides, in the first instance, that visits are to be organised by lot: Art 13 OPCAT.

193 See Report on the First Annual Conference on the OPCAT (n 83).

194 Some States Parties that have had major refugee populations in the past include Croatia (ratified 25 April 2005); Liberia (acceded 22 Sept 2004); Mali (acceded 12 May 2005).

195 eg in 2005 and 2006, UNHCR officials were initially denied access to the Italian island of Lampedusa where over 1,000 asylum-seekers and/or migrants were being held. When the UNHCR officials were finally granted entry rights, they arrived to find that 1,000 asylum-seekers and other migrants had already been transferred to Libya. See Amnesty International, Lampedusa: Italy's Island of Forgotten Promises, AI Index: EUR 30/008/2005, 6 July 2005.

196 Art 14(2) OPCAT.

197 eg Human Rights Watch, Do Not Close U.N. Refugee Office, 23 Mar 2006 (UNHCR expelled from Ukraine).

198 R Brett and E Lester, ‘Refugee law and international humanitarian law: parallels, lessons and looking ahead’ (2001) 83 (843) Int'l Rev. Red Cross 713, 723. It should be noted that the OPCAT is not necessarily what Brett and Lester had in mind when making their point, as they were certainly aware of the range of monitoring mechanisms already available under international human rights instruments.

199 Art 14(2) OPCAT.

200 For more on the issue of confidentiality and cooperation between the SPT and other international bodies, including NGOs, see Report on the First Annual Conference on the OPCAT (n 83) 34.

201 Notably the UNHCR already cooperates on a regular basis with other aspects of the treaty bodies, such as regularly providing reports on particular state party performance under relevant human rights treaties in respect of refugees and asylum-seekers and others of concern to the Office.

202 The OPCAT mechanisms should also take account of international humanitarian law, where applicable.