Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 135
b) Enforced disappearances
The principle of non-refoulement also applies when there is a risk of enforced
disappearance 420 since this practice in itself constitutes “a grave
and flagrant violation of human rights and fundamental freedoms” 421
and “an offence to human dignity”. 422
c) Extra-judicial executions and the right to life
Extrajudicial executions constitute a serious violation of the absolute and
non-derogable right to life to which the principle of non-refoulement applies,
as has been clearly affirmed by the Human Rights Committee 423 and
in the UN Principles on the Effective Prevention and Investigation of Extralegal,
Arbitrary and Summary Executions, 424 Article 5 of which states that
“no one shall be involuntarily returned or extradited to a country where
there are substantial grounds for believing that he or she may become
a victim of extra-legal, arbitrary or summary execution in that country”.
d) Non-refoulement and the death penalty
Under international human rights law, the transfer of a person to a
country where there is a risk of subjection to the death penalty may
entail violations of the right to life and/or the freedom from torture or
cruel, inhuman or degrading treatment or punishment.
The Human Rights Committee has found that “[f]or countries that have
abolished the death penalty, there is an obligation not to expose a person
to the real risk of its application [. . .] if it may be reasonably anticipated
that they will be sentenced to death, without ensuring that
the death sentence would not be carried out”. 425 This obligation arises
irrespective of whether the expelling State has entered into international
treaties prohibiting the death penalty, but merely from the fact that
the State has abolished the death penalty domestically. 426 However, the
420 Article 16, International Convention for the Protection of All Persons from Enforced Disappearance,
adopted on 20 December 2006 (CPED); Article 8, UN Declaration on the Protection
of all Persons from Enforced Disappearance, adopted by the General Assembly of the
United Nations in its resolution 47/133 of 18 December 1992, A/RES/47/133.
421 Article 1, UN Declaration on the Protection of all Persons from Enforced Disappearance.
422 Ibid.
423 Baboeram et al. v. Suriname, CCPR, Communications Nos. 146/1983 and 148–154/1983,
Views of 4 April 1985; Naveed Akram Choudhary v. Canada, CCPR, op. cit., fn. 318,
paras. 9.7–9.8; General Comment No. 6, The Rights to Life, CCPR, 30 April 1982, para. 3.
424 See, ECOSOC Resolution No. 1989/65, Effective prevention and investigation of extra-legal,
arbitrary and summary executions, 15 th Plenary meeting, 24 May 1989.
425 Judge v. Canada, CCPR, Communication No. 829/1998, Views of 20 October 2003, para. 10.4;
reconfirmed in Kwok Yin Fong v. Australia, CCPR, op. cit., fn. 347, para. 9.4.
426 This decision constituted a change of jurisprudence of the Committee which had previously not
found this obligation to arise. See, Kindler v. Canada, CCPR, Communication No. 470/1991*,
Views of 18 November 1993; Ng v. Canada, CCPR, Communication No. 469/1991*, Views of
7 January 1994; A.R.J. v. Australia, CCPR, op. cit., fn. 322.