The limits on a state's right to exclude and expel non-citizens under customary international and human rights treaty law.

摘要

The thesis is entitled “Limits on the State's Right to Exclude and Expel non-citizens under Customary International and Human Rights Law”. Its premise is that customary international and human fights treaty law have developed during the course of the last 50 years to a point where they now impose important limitations on state sovereignty with respect to the admission and exclusion of non-citizens. I argue that under customary international law the prohibition against refoulement or the forcible return of a refugee to a country to where he/she faces persecution is a principle of customary international law, as is the provision against the return of any person to a country where he/she faces a risk of torture.; I also examine the International Covenant on Civil and Political Rights, the European Convention on Human Rights and the Convention Against Torture. Pursuant to these international human rights treaty laws, several principles which bind all signatories have emerged. These are: (1) Removal of any person back to a country where there is a risk of torture. (2) The prohibition also extends to the deportation of a person to a country where he or she is at risk of other forms of cruel and inhuman treatment. (3) By the same token, the deportation of a parent whose children are citizens of the country from which he/she is being deported is prohibited until the best interests of the children are taken into account. The best interests of the children must be given considerable weight. (4) Long term permanent residents who have grown up in the country in which they are residents have a fight to remain in that country and cannot be deported notwithstanding the interests of the state in removing them.; I conclude by arguing that the most effective way of enforcing these rights is through the national courts. In Canada it is possible to use international human rights treaties as a tool for interpreting the Charter of Rights and Freedoms.