Article 3 ECHR and Its Case-Law: The Hand of Midas

Abstract

In the year of 1953, Article 3 of European Convention on Human Rights (‘ECHR’) debuted as a barrier to prevent the return of Europe to the barbarism it experienced during Nazism atrocities. After almost four decades of witnessing the births of countless other international human right law and the flourish of liberal society in Europe, Article 3 slowly turns into a mere insignificant formality that likely to be incorporated in any human right instrument without actual impact. This reality changes all of the sudden when the European Court of Human Right (‘ECtHR’) decided in Soering case, that the contracting parties to the ECHR (‘Contracting State(s)’) have to adhere to Article 3 ECHR before expelling any individual that might be subject to the risk of being ‘torture, inhumane and degrading treatment’. The adoption of this ‘effective interpretation’ of the Court, as rightly pointed out by Professor Cassese, has widely broadened the prescription of the Convention. It turns Article 3, and the available mechanisms of the Convention, into a refugee — asylum seeker protective apparatus, specifically for safeguarding the non-refoulement principle.

On the one hand, this short commentary tries to identify and acknowledge the most notable benefits of merging Refugee law, Human right law and Humanitarian law into one ultra-power humanisation system. The author is impressed with two major contributions. Firstly, ECtHR’s jurisprudence has effectively challenged the predominant formalistic approach in interpreting human right treaties, which then provides one of a kind environment for the further developments and discussions of international refugee law. The high standard of absolute and human right - humanitarian nature carved into the case law have affirmed and inspired an ultimate protection regime for humanity.

On the other hand, the commentary also raises some concerns regarding the legal dilemma ECtHR having to face when they try to push too much the frontier of refugee law into the conventionally influenced area of human right and humanitarian law without any textual basis. The notion of refugee could possibly lose its integrity and the Court is now itself struggling to find a new balance for maturing the relationship between refugee law and the state’s interest.

Keywords: Refugee Law, ECtHR, European Convention on Human Rights, ECHR

JEL Classification: K33