Fleeing Deprivation: Deducing <i>Non-Refoulement</i> Obligations from Economic, Social and Cultural Rights

ABSTRACT While the principle of non-refoulement is today acknowledged as the cornerstone of the general human rights regime protecting people on the move, developments of the content of this principle have focused on risks of harm to civil and political (CP) rights. Factors affecting economic, social and cultural (ESC) rights have been addressed only indirectly, where socio-economic deprivation is deemed to amount to inhuman and degrading treatment. Nevertheless, not every instance of severe harm to ESC rights will necessarily equate to ill-treatment. Failure to recognize an autonomous basis for non-refoulement obligations in ESC rights may thus lead to gaps in protection and contribute to the trend of underdevelopment of the legal content of ESC rights in comparison to CP ones. This article thus addresses whether obligations of non-refoulement can be autonomously deduced from treaty provisions on ESC rights. In doing so, it delves into the legal basis upon which the principle of non-refoulement in general human rights law is built, according to the practice of international human rights bodies in interpreting and applying this principle. The article takes into account the practice of all regional human rights frameworks (African, European, and Inter-American) and United Nations treaty bodies that have dealt with the principle of non-refoulement, seeking to discern a common foundation to this principle’s rationale and scope. It is submitted that non-refoulement qualifies as a positive obligation to prevent risks of severe harm to rights by third parties and is, accordingly, inherent in all human rights. The compatibility between ESC rights obligations and non-refoulement is then analysed, and ways to render practicable the application of non-refoulement in connection with these rights are identified, focusing on immediate obligations stemming from ESC rights and minimum threshold obligations. Finally, objections to non-refoulement based on socio-economic grounds, namely concerns regarding the potential increase of mass migratory influxes and the added value of such a norm, are addressed. The article concludes that neither legal nor non-legal considerations bar deducing non-refoulement obligations from ESC rights and that much of the reasoning applied to non-refoulement assessments in cases involving CP rights can be transposed to cases involving ESC rights, especially when immediate ESC rights obligations are at stake.