The Concept of Inhuman and Degrading Treatment in International Law and Its Application in Asylum Cases

Abstract

This article aims to discuss the recent reading of the non-refoulement rule which qualifies the risk of being subjected in the country of origin to inhuman or degrading treatment as a new ground for granting permission to reside in the State of refuge. Therefore, the author first analyses the concept of ‘inhuman or degrading treatment’ as it derives from either international or domestic practice; then she describes the close connection existing between such a concept and the non-refoulement rule; finally she draws some conclusions on the considered relationship, in particular on the effects of retention of human rights general considerations for non-refoulement purposes. The prohibition of ‘inhuman or degrading treatment’ has considerably evolved since the adoption of the 1948 Universal Declaration on Human Rights, either in enlarging or in multiplying its possible fields of application. One of the most relevant results of this evolution has been the broadening of refugee status requirements. In her conclusions, the author wonders whether the illustrated trend is satisfactory and advances several warnings against an uncontrolled enlargement by human rights procedures – especially by the European Human Rights Convention monitoring bodies – of grounds for asylum applications admission. In the opinion of the author, this enlargement is of course to e shared from a humanitarian point of view but is questionable in so far as it raises the unpredictable result of progressively nullifying the very legal nature of asylum.