Abstract
The norm of non-refoulement is at the heart of the international protection of refugees yet there remains a lack of consensus as to its status. In this contribution, we examine the question whether it has attained the status of a jus cogens norm. Adopting the methodology of ‘custom plus’ we first examine whether non-refoulement has attained the status of custom, concluding that widespread state practice and opinio juris underpin the view that it is clearly a norm of customary international law. Moreover, much of this evidence also leads to the conclusion that it is ripe for recognition as a norm of jus cogens, due to its universal, non-derogatory character. In other words, it is a norm accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted. The chapter then examines the consequences for its recognition as jus cogens, exploring some of the many ways in which jus cogens status may have meaningful implications for the norm of non-refoulement.
Cathryn Costello is Andrew W Mellon Associate Professor in International Human Rights and Refugee Law, Refugee Studies Centre, Oxford Department of International Development (ODID) & Faculty of Law, University of Oxford, email: cathryn.costello@law.ox.ac.uk. Michelle Foster is Professor and Director, Research Programme in International Refugee Law, Institute for International Law and the Humanities, Melbourne Law School, email: m.foster@unimelb.edu.au. The authors acknowledge with gratitude the support of the Allan Myers MLS-Oxford Research partnership which has enabled this collaboration, and to the following for their helpful comments: Guy S Goodwin-Gill, Antonios Tsanakopoulos, Jean d’Aspremont, Jane McAdam, Maria-Giulia Giuffré and three anonymous reviewers. We also thank the Melbourne Law School Library Research Service, particularly Skye Chapman and Robin Gardner, as well as Grace Duncan, JD student, Melbourne Law School for excellent research assistance, and Ella Gunn, Refugee Studies Centre, Oxford, for editorial assistance. All errors remain of course our own.
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Notes
- 1.
Durieux 2013, at 167.
- 2.
Preamble of the 1951 Convention Relating to the Status of Refugees, 189 UNTS 137 (Refugee Convention).
- 3.
UNHCR, Syria regional refugee response, 2015. http://data.unhcr.org/syrianrefugees/regional.php. Accessed 20 September 2015.
- 4.
- 5.
UNHCR, Refugees/Migrants emergency response—Mediterranean, 2015. http://data.unhcr.org/mediterranean/regional.php. Accessed 30 December 2015.
- 6.
- 7.
‘Operation Sovereign Borders’ has been the most visible manifestation of the push back policy, and this was further supported in 2014 by the passage of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
- 8.
See Joint Statement by UNHCR, OHCHR, IOM and SRSG for Migration and Development: Search and rescue at sea, disembarkation, and protection of the human rights of refugees and migrants now imperative to save lives in the Bay of Bengal and Andaman Sea, 19 May 2015. http://www.unhcr.org/555aee739.html. Accessed 17 December 2015.
- 9.
We observe that the concept of jus cogens may be relevant to other aspects of refugee status. For example, in determining which violations of human rights are sufficiently serious to constitute persecution, it has sometimes been suggested that if this is understood as involving a hierarchical analysis, then the jus cogens nature of certain violations may be relevant. However, as explained by Foster, reliance on jus cogens in this context has limited pertinence given the narrow range of violations widely accepted to have attained the status of a jus cogens norm. Foster 2007b. By contrast, a wide range of potential human rights violations are understood to be encompassed within the meaning of persecution. See Hathaway and Foster 2014, at 208–287.
- 10.
Article 33(2) Refugee Convention.
- 11.
Article 53 of the 1969 Vienna Convention on the law of Treaties, 1155 UNTS 331 (VCLT).
- 12.
UNGA, Report of the International Law Commission, 53rd session of the ILC, UN Doc. A/56/10, 2001, at 208.
- 13.
Koskenniemi 1989.
- 14.
UNGA, Report of the International Law Commission, 66th session of the ILC, UN Doc. A/69/10, 2014, at 280.
- 15.
- 16.
Linderfalk 2015, at 3. ‘[M]any assumptions that discussants bring to bear on their contributions to the jus cogens debate eventually turn on their definition of law.’
- 17.
Saul 2014, at 2.
- 18.
Juridical Condition and Rights of Undocumented Migrants, IACtHR, Advisory Opinion, No. OC-18/03, 17 September 2003, paras 99–100.
- 19.
- 20.
Michael Domingues v United States, IACsionHR, Case No. 12.285, Report No. 62/02, 22 October 2002, para 50. The Commission (citing scholarly work) explained that: ‘while based on the same evidentiary sources as a norm of customary international law, the standard for determining a principle of jus cogens is more rigorous, requiring evidence of recognition of the indelibility of the norm by the international community as a whole. This can occur where there is acceptance and recognition by a large majority of states, even if over dissent by a small number of states.’
- 21.
Cassese 2012, at 139.
- 22.
Tomuschat 1993, at 386.
- 23.
Ibid.
- 24.
Ibid.
- 25.
Zemanek 2001, at 383.
- 26.
Ibid., at 384. ‘Instead of reflecting the firm, for some immutable, commands of natural law, jus cogens became the expression of fundamental values shared by the international community of states at a certain time and it is, therefore, not absolutely free of contradictions.’
- 27.
Legality of the Threat or Use of Nuclear Weapons, ICJ, Advisory Opinion, 8 July 1996, para 79. See also the dissent of Judge Weeramantry, who was clearer on this point. ‘The rules of the humanitarian law of war have clearly acquired the status of jus cogens, for they are fundamental rules of a humanitarian character, from which no derogation is possible without negating the basic considerations of humanity which they are intended to protect.’ Ibid., Dissenting Opinion of Judge Weeramantry, at 496. See also ibid., Declaration of President Bedjaoui. See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ, Advisory Opinion, 9 July 2004, para 157.
- 28.
Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), ICJ, Judgment, 20 July 2012, para 99.
- 29.
Ibid.
- 30.
Ibid.
- 31.
Ibid.
- 32.
Ibid. Importantly there is no evidence cited by the ICJ in relation either to domestic implementation of the norm or the point about regular denunciation.
- 33.
We note also that some scholars, notably Cassese, challenges the view that jus cogens are a sub-set of customary norms. Cassese 2012. For a persuasive critique, see Tasioulas 2016, at 13–14.
- 34.
Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), ICJ, Merits, Judgment of 27 June 1986. See further Orakhelashvili 2006, at 119.
- 35.
Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), ICJ, Judgment, 3 February 2012, para 95.
- 36.
The ILC states that it would be incorrect ‘to say that a provision in a treaty possesses the character of jus cogens merely because the parties have stipulated that no derogation from that provision is to be permitted, so that another treaty which conflicted with it would be void.’ International Law Commission, Draft Articles on the Law of Treaties with commentaries, 18th session, UN Doc. A/6309/Rev.l, 1966, Article 50, para 2.
- 37.
Victims of Tugboat ‘13 de Marzo’ v Cuba, IACHR, Report No.47/96, Case 11.436, 16 October 1996, para 79 (cited in de Wet 2015, at 544).
- 38.
Article 4 of the 1966 International Covenant on Civil and Political Rights, 999 UNTS 171 (ICCPR); Article 15 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms European Convention on Human Rights, 213 UNTS 222 (ECHR); Article 27 of the 1969 American Convention of Human Rights, 1144 UNTS 123 (ACHR). Note, there is no derogation clause in the 1981 African Charter of Human and Peoples’ Rights, 1520 UNTS 217.
- 39.
UN Human Rights Committee, General Comment No. 29: Derogations during a state of emergency (Article 4), UN Doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001, para 9. For a discussion, see Joseph 2002, at 91.
- 40.
- 41.
Juridical Condition and Rights of the Undocumented Migrants, para 86.
- 42.
See ibid., para 100. ‘The principle of equality before the law and non-discrimination permeates every act of the powers of the State, in all their manifestations, related to respecting and ensuring human rights. Indeed, this principle may be considered peremptory under general international law, inasmuch as it applies to all States, whether or not they are party to a specific international treaty, and gives rise to effects with regard to third parties, including individuals.’
- 43.
Chetail 2012, at 81.
- 44.
Shelton 2006, at 309.
- 45.
See generally Dembour 2015.
- 46.
See Goodwin-Gill and McAdam 2007, at 354. Goodwin-Gill has recently gone further to argue that the customary international law norm is one of temporary refuge/protection. ‘Temporary refuge, nonetheless, is a matter of obligation’. Goodwin-Gill 2014, at 441. For further support, see Kälin et al. 2001, at 1342–1346; Chetail 2012, at 76; and Wallace 2014, at 435. Wallace indicates that ‘there would appear to be general consensus that the principle of non-refoulement as expressed in Article 33(1) is a principle of customary international law’. See also Messineo 2013, at 142. He argues that ‘[t]here is near universal acceptance of the legal binding nature of non-refoulement, or opinio juris … most commentators and- more decisively- states agree on the customary nature of non-refoulement’. See also Gilbert 2004, at 966; Duffy 2008, at 383 and 389; Trevisanut 2009; Giuffre 2013, at 718; Perluss and Hartman 1985–1986; Chan 2006, at 232–235; and Vang 2014, at 371.
- 47.
Unquestionably, the most prominent scholar who argues against non-refoulement as custom is Hathaway although Hailbronner has historically been a prominent protagonist as well. Hathaway 2010; Hailbronner 1986. Messineo recently concluded that ‘history seems to have proved the wishful thinker right,’ and that arguments ‘against the customary international law nature of non-refoulement of refugees seems slightly anachronistic’. Messineo 2013, at 142.
- 48.
North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), ICJ, Judgment of 20 February 1969, paras 70–71.
- 49.
Ibid., para 43.
- 50.
Lauterpacht and Bethlehem 2003, 143–146; and Messineo 2013, at 142. See also C and others v. Director of Immigration and another, Hong Kong Court of Appeal, Civil Appeals, No. 132–137 of 2008, 21 July 2011, para 47. ‘In the present case, there is no dispute over the first element [the concept must be of such a character and its formulation of sufficient precision as to be capable of creating a general rule’].
- 51.
1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85 (Convention against Torture).
- 52.
Article 16 of the 2006 International Convention for the Protection of All Persons from Enforced Disappearance, 2715 UNTS 3 (Convention against Enforced Disappearance).
- 53.
Ziegler 2014.
- 54.
Lauterpacht and Bethlehem 2003, at 93.
- 55.
North Sea Continental Shelf Cases, para 71.
- 56.
Lauterpacht and Bethlehem 2003, at 146.
- 57.
Ibid., at 147. In 2015, there were only 13 UN member states that have not signed any of the Refugee Convention or Protocol, the ICCPR or the Convention against Torture. They are as follows: Bhutan, Brunei Darussalam, Cook Islands, Kiribati, Malaysia, Marshall Islands, Micronesia (Federated States of), Myanmar, Niue, Oman, Singapore, Solomon Islands, and Tonga.
- 58.
For example, there have been two new states party to the Refugee Convention since then.
- 59.
Lauterpacht and Bethlehem 2003, at 147.
- 60.
Hathaway 2010, at 509.
- 61.
M. Wood, Special Rapporteur, Third report on identification of customary international law, UN Doc. A/CN.4/682, 27 March 2015, at 29, para 42.
- 62.
Article II(3) of the 1969 Organisation of African Unity, Convention Governing Specific Aspects of Refugee Problems in Africa, 1001 UNTS 45(OAU Convention). ‘No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for the reasons set out in Article I, paras 1 and 2 [concerning persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion or who is compelled to leave his country of origin or place of habitual residence in order to seek refuge from external aggression, occupation, foreign domination or events seriously disturbing public order].’ Article 22(8) ACHR reads: ‘In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions.’.
- 63.
Article 16(1) Convention against Torture.
- 64.
UN Human Rights Committee, General Comment 31, Nature of the general legal obligation on states parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13, 29 March 2004, para 12.
- 65.
See McAdam 2007, at 136–172.
- 66.
Ould Barar v Sweden, ECtHR, No. 42367/98, 19 January 1999. The case illustrates that the ECtHR is open to claims under Article 4 ECHR, but found no risk of treatment contrary to Article 4 ECHR on return in the particular case.
- 67.
Tomic v. UK, ECtHR, No. 17387/03, 14 October 2003.
- 68.
Soering v. United Kingdom, ECtHR, No. 14038/88, 7 July 1989; Drozd and Janousek v. France and Spain and, ECtHR, No. 12747/87, 26 June 1992; Mamatkulov Askarov v. Turkey, ECtHR, No. 46827/99 and 46951/99, 4 February 2005; Einhorn v. France, ECtHR, No. 71555/01, 16 October 2001; Al-Moayad v. Germany, ECtHR, No. 35865/03, 30 February 2007; Stapleton v. Ireland, ECtHR, No. 56588/07, 4 May 2010; Othman (Abu Qatada) v. United Kingdom, ECtHR, No. 8139/09, 17 January 2012.
- 69.
Gabarri Moreno v. Spain, ECtHR, No. 68066/01, 22 July 2003.
- 70.
F v. UK, ECtHR, No. 17341/03, 22 June 2004.
- 71.
Z and T v. UK, ECtHR, No. 27034/05, 28 February 2006.
- 72.
M. Wood, Special Rapporteur, Third report on identification of customary international law, UN Doc. A/CN.4/682, 27 March 2015, at 18, para 34.
- 73.
This appears to explain a key source of the disagreement between Hathaway and Lauterpacht and Bethlehem. Hathaway summarises the ‘essence of the … claim’ as follows: ‘because an express or implied duty of non-refoulement is recognized in the various treaties…it is now the case that all states—whether bound by a relevant treaty or not- are legally obligated to honour the duty of non-refoulement.’ Hathaway 2010, at 507. Yet Lauterpacht and Bethlehem consider other evidence of practice as well as opinio juris. Lauterpacht and Bethlehem 2003, at 146–149.
- 74.
International Law Commission, Identification of customary international law. Text of the draft conclusions provisionally adopted by the Drafting Committee, 67th session of the ILC, UN Doc. A/CN.4/L.869, 14 July 2015, at 3.
- 75.
North Sea Continental Shelf Cases, para 77.
- 76.
M. Wood, Special Rapporteur, Third report on identification of customary international law, UN Doc. A/CN.4/682, 27 March 2015, para 17.
- 77.
In R v Immigration Officer at Prague Airport and another ex parte European Roma Rights Centre and others Lord Bingham commented that: ‘the conditions to be satisfied before a rule may properly be recognised as one of customary international law have been somewhat differently expressed by different authorities, but are not in themselves problematical.’ R v Immigration Officer at Prague Airport and another ex parte European Roma Rights Centre and others [2004] UKHL 55, Lord Bingham, para 23.
- 78.
International Law Commission, Identification of customary international law. Text of the draft conclusions provisionally adopted by the Drafting Committee, 67th Session of the ILC, UN Doc. A/CN.4/L.869, 14 July 2015, at 3.
- 79.
While the ILC maintains that ‘each element is to be separately ascertained’ it adds that ‘This generally requires an assessment of specific evidence for each element.’ M. Wood, Special Rapporteur, Third report on identification of customary international law, UN Doc. A/CN.4/682, 27 March 2015, The report suggests amendment to Draft Conclusion 3[4]. International Law Commission, Identification of customary international law. Text of the draft conclusions provisionally adopted by the Drafting Committee, 67th Session of the ILC, UN Doc. A/CN.4/L.869, 14 July 2015, at 1. The word ‘generally’ was inserted following discussion of the flexibility needed depending on the area of law.
- 80.
Wood M, Special Rapporteur, Third report on identification of customary international law, UN Doc. A/CN.4/682, 27 March 2015, at 31, para 45.
- 81.
Legality of the Threat or Use of Nuclear Weapons, para 70.
- 82.
Ibid.
- 83.
Ibid. See also UNGA, Report of the International Law Commission, 67th session of the ILC, UN Doc. A/70/10, 24 August 2015, para 69. ‘[T]he particular wording used in a given resolution was of critical importance, as were the circumstances surrounding the adoption of the resolution in question.’
- 84.
Legality of the Threat or Use of Nuclear Weapons, para 70.
- 85.
Ibid., para 71.
- 86.
Ibid.
- 87.
Ibid., para 73.
- 88.
Ibid.
- 89.
See declarations referred to in Case concerning Military and Paramilitary Activities in and against Nicaragua, paras 203–204.
- 90.
UNGA Res. 57/187, 18 December 2002; UNGA Res. 32/67, 8 December 1977; UNGA Res. 33/26, 29 November 1978; UNGA Res. 34/60, 29 November 1979; UNGA Res. 35/41, 25 November 1980; UNGA Res. 36/125, 14 December 1981; UNGA Res. 37/195, 18 December 1982; UNGA Res. 38/121, 16 December 1983; UNGA Res. 39/140, 14 December 1984; UNGA Res. 40/118, 13 December 1985; UNGA Res. 41/124, 4 December 1986; UNGA Res. 42/109, 7 December 1985; UNGA Res. 43/117, 8 December 1988; UNGA Res. 44/137, 15 December 1989; UNGA Res. 46/106, 16 December 1991; UNGA Res. 47/105, 16 December 1992; UNGA Res. 48/116, 20 December 1993; UNGA Res. 49/169, 23 December 1994; UNGA Res. 50/152, 21 December 1995; UNGA Res. 51/75, 12 December 1996; UNGA Res. 52/103, 9 February 1998; UNGA Res. 53/125, 12 February 1999; UNGA Res. 54/146, 22 February 2000; UNGA Res. 55/74, 12 February 2001; UNGA Res. 56/137, 19 December 2001; UNGA Res. 57/187, 18 December 2002; UNGA Res. 58/151, 22 December 2003; UNGA Res. 59/170, 20 December 2004; UNGA Res. 60/129, 20 January 2006; UNGA Res. 61/137, 25 January 2007; UNGA Res. 62/124, 24 January 2008; UNGA Res. 63/148, 18 December 2008; UNGA Res. 63/127, 15 January 2009; UNGA Res. 65/194, 28 February 2011; UNGA Res. 64/127, 15 January 2010; UNGA Res. 66/133, 19 March 2012; UNGA Res. 67/149, 6 March 2013; UNGA Res. 68/141, 28 January 2014; UNGA Res. 69/152, 17 February 2015.
- 91.
UNGA Res. 34/60, 29 November 1979.
- 92.
UNGA Res. 44/137, 15 December 1989.
- 93.
UNGA Res. 49/169, 23 December 1994; UNGA Res. 44/137, 15 December 1989; Resolution 46/106, 16 December 1991; Resolution 47/105, 16 December 1992; Resolution 48/116, 20 December 1993; Resolution 49/169, 23 December 1994; Resolution 51/75, 12 December 1996.
- 94.
- 95.
Kälin et al. 2011, at 1344.
- 96.
Emphasis added. We acknowledge that the phrase ‘embedded in’ is rather curious language from the perspective of international law, because a norm either is or is not a customary norm. However given that ‘embedded’ is not a term of art nor does it have any specific meaning, the most logical conclusion is that the Declaration provides further compelling evidence of the international community’s acceptance of non-refoulement as a customary norm.
- 97.
Kälin et al. 2011, at 1344.
- 98.
We note that in the past the US government has disputed that non-refoulement is a norm of customary international law, yet does not appear to have distanced itself in any way from these GA resolutions. In Case concerning Military and Paramilitary Activities in and against Nicaragua the ICJ took into account that the US had not issued statements qualifying its agreement or acceptance of similar resolutions and declarations. Case concerning Military and Paramilitary Activities in and against Nicaragua, at 107 [203]-[204].
- 99.
M. Wood, Special Rapporteur, Third report on identification of customary international law, UN Doc. A/CN.4/682, 27 March 2015, para 49.
- 100.
Boyle and Chinkin 2007, at 226.
- 101.
See Article 18 of the 1945 Charter of the United Nations, 1 UNTS XVI (UN Charter); and Rules 82–95 of United Nations, Rules of procedure of the General Assembly, UN Doc. A/520/Rev.17, 2008. These concern voting in the General Assembly. For further discussion of consensus voting in this context, see Goodwin-Gill and McAdam 2007, at 346–347. Importantly Hathaway concedes that these resolutions go ‘some distance in support of the claim that there is opinio juris for a duty of non-refoulement owed to more than just Convention refugees.’ Hathaway 2010, at 512.
- 102.
M. Wood, Special Rapporteur, Third report on identification of customary international law, UN Doc. A/CN.4/682, 27 March 2015, para 46. Here we focus on ExCom, however we note that Goodwin-Gill and McAdam provide examples of other methods by which the United Nations has recognised the importance of the principle of non-refoulement. Goodwin-Gill and McAdam 2007, at 213–215.
- 103.
See below.
- 104.
UNHCR, Executive Committee Conclusion No 1 (XXVI), 15 October 1975, para (b); UNHCR, Executive Committee Conclusion No 19 (XXXI), 16 October 1980, para (a); UNHCR, Executive Committee Conclusion No 71 (XLIV), 8 October 1993, para (g); UNHCR, Executive Committee Conclusion No 108 (LIZ), 10 October 2008, para (a).
- 105.
UNHCR, Executive Committee Conclusion No. 16 (XXXI), 9 October 1998, para (e); UNHCR, Executive Committee Conclusion No. 21 (XXXII), 21 October 1981, para (f); UNHCR, Executive Committee Conclusion No. 22 (XXXII), 21 October 1981, para (2); UNHCR, Executive Committee Conclusion No. 33 (XXXV), 18 October 1984, para (c); UNHCR, Executive Committee Conclusion No. 74 (XLV), 7 October 1994, para (g); UNHCR, Executive Committee Conclusion No. 94 (LIII), 8 October 2002, para (c)(i); UNHCR, Executive Committee Conclusion No. 99 (LV), 8 October 2004, para (l); UNHCR, Executive Committee Conclusion No. 80 (XLVII), 11 October 1996, para (e)(iii); UNHCR, Executive Committee Conclusion No. 100 (LV), 8 October 2004, para (i).
- 106.
UNHCR, Executive Committee Conclusion No. 50 (XXXIX), 10 October 1988, para (g); UNHCR, Executive Committee Conclusion No. 55 (XL), 13 October 1989 para (d).
- 107.
UNHCR, Executive Committee Conclusion No. 65 (XLII), 11 October 1991, para (c).
- 108.
UNHCR, Executive Committee Conclusion No. 19 (XXXI), 16 October 1980, para (a).
- 109.
UNHCR, Executive Committee Conclusion No. 15 (XXX), 16 October 1979, para (b).
- 110.
UNHCR, Executive Committee Conclusion No. 79 (XLVII), 11 October 1996, para (j). UNHCR, Executive Committee Conclusion No. 81 (XLVIII), 17 October 1997, para (i).
- 111.
UNHCR, Executive Committee Conclusion No. 17 (XXXI), 16 October 1980, para (b).
- 112.
See for example UNHCR, Executive Committee Conclusion No. 103 (LVI), 7 October 2005, para (m). ‘Affirms that relevant international treaty obligations, where applicable, prohibiting refoulement represent important protection tools to address the protection needs of persons who are outside their country of origin and who may be of concern to UNHCR but who may not fulfil the refugee definition under the 1951 Convention and/or its 1967 Protocol; and calls upon States to respect the fundamental principle of non-refoulement.’.
- 113.
See, for example, UNHCR, Executive Committee Conclusion No. 102 (LVI), 7 October 2005, para (j). ‘Recalls its Conclusions No 6 (XXVII) and 7 (XXVIII), as well as numerous subsequent references made in its other Conclusions to the principle of non-refoulement; expresses deep concern that refugee protection is seriously jeopardised by expulsion of refugees leading to refoulement; and calls on States to refrain from taking such measures and in particular from returning or expelling refugees contrary to the principle of non-refoulement.’.
- 114.
UNHCR, Executive Committee Conclusion No. 50 (XXXIX), 10 October 1988, para (g) (emphasis added).
- 115.
Hathaway 2010, at 512. He acknowledges that GA resolutions are ‘noteworthy and goes some distance in support of the claim that there is opinio juris for a duty of non-refoulement owed to more than just Convention refugees.’.
- 116.
Ibid., at 512–513.
- 117.
Ibid., at 513.
- 118.
Ibid., at 514.
- 119.
Ibid.
- 120.
Ibid.
- 121.
North Sea Continental Shelf Cases, para 74.
- 122.
M. Wood, Special Rapporteur, Second report on identification of customary international law, UN Doc. A/CN.4/672, 22 May 2014, para 37 (citing Danilenko 1993, at 95).
- 123.
Hathaway 2010, at 514. Although note that he is discussing this element in the context of opinio juris not practice.
- 124.
For a very different approach to the idea of specially affected states, see M. Wood, Special Rapporteur, Second report on identification of customary international law, UN Doc. A/CN.4/672, 22 May 2014, n. 167.
- 125.
North Sea Continental Shelf Cases.
- 126.
Chetail 2012, at 75. See also views of ICJ in Legality of the Threat or Use of Nuclear Weapons cited in M. Wood, Special Rapporteur, Second report on identification of customary international law, UN Doc. A/CN.4/672, 22 May 2014, n. 165.
- 127.
Chetail 2012, at 75.
- 128.
Indeed, in Legality of the Threat or Use of Nuclear Weapons, Judge Weeramantry rejected the argument in relation to ‘specially affected states on the basis that ‘Every nation in the world is specially affected by nuclear weapons, for when matters of survival are involved, this is a matter of universal concern’. Ibid., Dissenting Opinion of Judge Weeramantry, at 536.
- 129.
As noted above, Hathaway 2010, at 512–513 relies on the lack of ratification of the Refugee Convention among most states in Asia and the Middle East as ‘the major contraindication’ to a finding of opinio juris based on General Assembly Resolutions.
- 130.
International Law Commission, Identification of customary international law, Text of the draft conclusions provisionally adopted by the Drafting Committee, 67th Session of the ILC, UN Doc. A/CN.4/L.869, 14 July 2015, para 3. Also see M. Wood, Special Rapporteur, Third report on identification of customary international law, UN Doc. A/CN.4/682, 27 March 2015, at 14, para 26.
- 131.
In the ICJ’s judgment in the Asylum Case, the Court held that even if Columbia had been able to assert a customary rule as between certain Latin American states, it could not be invoked against Peru because Peru had repudiated the customary rule ‘by refraining from ratifying the Montevideo Conventions of 1933 and 1939, which were the first to include a [relevant] rule’. Asylum Case (Columbia v Peru), ICJ, Judgment, 20 November 1950, para 278. However that decision is now 65 years old and the more recent cases on custom have not invoked this reasoning. On the contrary, in C and others v Director of Immigration and another the Director had relied on the fact that Hong Kong, like most jurisdictions in Asia, ‘has never recognized any form of legal obligation to adhere to a norm of international custom concerning the refoulement of refugees.’ C and others v Director of Immigration and another, para 71. Hartmann J regarded this as ‘not decisive’ because ‘a rule of customary international law maintains its independent existence even though the rule has partially or even exactly been codified in a treaty.’ C and others v Director of Immigration and another, para 72.
- 132.
See ILC discussion in M. Wood, Special Rapporteur, Third report on identification of customary international law, UN Doc. A/CN.4/682, 27 March 2015, at 9–14. Interestingly in C and others v Director of Immigration and another, the Hong Kong Court of Appeal questioned the decision of the judge below who had found that the norm of non-refoulement equated to CIL but Hong Kong was a persistent objector. In declining to agree with the view on appeal, the Court found that although the Hong Kong government had stated many times that it could remove refugees (similar to some of the evidence relied on by Hathaway 2010), these actions could have been relevant to the ‘non-applicability of the RC to Hong Kong’; indeed the Court noted that it had not been referred ‘to any clear statements where there has been a disassociation from the process of the development of the concept of non-refoulement of refugees into a CIL.’ C and others v Director of Immigration and another, para 72.
- 133.
Only six states in these regions have thus far ratified this Convention, but some have signed and not yet ratified, and it must be recognized that this treaty only came into force in 2010 and has only 51 parties to date (as at 24 November 2015).
- 134.
Hathaway acknowledges this. Hathaway 2010, n. 67. While designations ‘Asia’ and ‘Middle East’ do not have a precise meaning, our analysis suggests that approximately 41 states who arguably fall within this description have ratified the CAT, 30 have ratified the ICCPR, and 4 have ratified the Convention against Enforced Disappearance.
- 135.
Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, 22 November 1984 (Cartagena Declaration); and more recent Brasilia Declaration on the Protection of Refugees and Stateless Persons in Americas, 11 November 2010 (Brasilia Declaration).
- 136.
African Union, The Kampala Declaration on Refugees, Returnees and Internally Displaced Persons in Africa, 23 October 2009 (Kampala Declaration), para 6. ‘We undertake to deploy all necessary measures to ensure full respect for the fundamental principle of non-refoulement as recognised in International Customary Law.’.
- 137.
Article III(1) of the Bangkok Principles on the Status and Treatment of Refugees (Bangkok Principles) provides that: ‘No one seeking asylum in accordance with these Principles shall be subjected to measures such as rejection at the frontier, return or expulsion which would result in his life or freedom being threatened on account of his race, religion, nationality, ethnic origin, membership of a particular social group or political opinion. The provision as outlined above may not however be claimed by a person when there are reasonable grounds to believe the person’s presence is a danger to the national security or public order of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.’ Asian-African Legal Consultative Organization (AALCO), Bangkok principles on the status and treatment of refugees, 31 December 1966.
- 138.
Namely Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People’s Democratic Republic, Malaysia, the Republic of the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the Socialist Republic of Viet Nam.
- 139.
Association of Southeast Asian Nations (ASEAN), ASEAN human rights declaration, 18 November 2012, Article 16.
- 140.
Arabic-Islamic States, Declaration on the protection of refugees and displaced persons in the Arab world, 19 November 1992.
- 141.
League of Arab States, Arab Charter on Human Rights, 15 September 1994.
- 142.
For example, in the Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement, 25 July 2011, non-refoulement was the only explicit obligation outlined, otherwise reference was made only to the far more vague ‘dignity and respect and in accordance with human rights standards’. See Plaintiff M70/2011 v Minister for Immigration and Citizenship (‘M70’) [2011] HCA 32, para 22.
- 143.
The UNHCR explains that the principle of non-refoulement is recognised in its Memorandum of Understanding with Jordan, even though Jordan is not a party to the Refugee Convention. See UNHCR, Global Appeal 2012–2013, Jordan, http://www.unhcr.org/4ec231020.pdf. Accessed 20 September 2015.
- 144.
See Republic of Turkey, Ministry of Interior, Directorate General of Migration Management, Law on Foreigners and International Protection, 2014 (unofficial translation). http://www.goc.gov.tr/files/files/eng_minikanun_5_son.pdf. Accessed 20 September 2015. The UNHCR notes that since the new Law on Foreigners and International Protection came into force in April 2014, the Directorate General of Migration Management has become the sole institution responsible for asylum matters. While Turkey still maintains the geographical limitation to the 1951 Convention, the law provides protection and assistance for asylum-seekers and refugees, regardless of their country of origin. See UNHCR, Country operations profile: Turkey, 2015, http://www.unhcr.org/pages/49e48e0fa7f.html. Accessed 20 September 2015.
- 145.
Indeed Lauterpacht and Bethlehem argue that members of the Executive Committee are ‘specially affected states’. Lauterpacht and Bethlehem 2003, at 148. As does Kälin et al. after citing Excom conclusions; they state: ‘the prohibition of refoulement can therefore be considered to be universally accepted as a legal obligation by States whose interests are especially affected.’ Kälin et al. 2011, at 1344. See also UNHCR, The principle of non-refoulement as a norm of customary international law: response to the questions posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1953/93, 2 BvR 1954/93, 31 January 1994, at 41.
- 146.
As at December 2014, Bangladesh hosted 232.485 refugees and asylum-seekers according to UNHCR. See UNHCR, Sub-regions operations profile, South East Asia: Bangladesh, 2015, http://www.unhcr.org/pages/49e487546.html. Accessed 25 November 2015.
- 147.
As at December 2014, there were 205.012 refugees and asylum-seekers residing in India according to UNHCR. See UNHCR, Sub-regions operations profile, South Asia: India, 2015, http://www.unhcr.org/pages/49e4876d6.html. Accessed 25 November 2015.
- 148.
There are currently 633.664 ‘persons of concern’ (refugees and asylum seekers) in Jordan. See UNHCR, Syrian refugee response: Jordan, 2015, http://data.unhcr.org/syrianrefugees/country.php?id=107. Accessed 20 September 2015.
- 149.
As at 31 October 2015, there are 1.075.637 Syrian refugees in Lebanon. See UNHCR, Syria regional refugee response: Lebanon, 2015, http://data.unhcr.org/syrianrefugees/country.php?id=122. Accessed 25 November 2015.
- 150.
As at December 2014, 1.5 m refugees and asylum-seekers reside in Pakistan. See UNHCR, Country operations profile: Pakistan, 2015, http://www.unhcr.org/pages/49e487016.html. Accessed 25 November 2015.
- 151.
As of December 2014 there are 138.169 refugees and asylum-seekers residing in Thailand. See UNHCR, Country operations profile: Thailand, 2015, http://www.unhcr.org/pages/49e489646.html. Accessed 25 November 2015.
- 152.
This is relevant because of Turkey’s geographical reservation. As at 3 November 2015, Turkey hosts 2.181.293 Syrian refugees, see UNHCR, Syria regional refugee response: Turkey, 2015, http://data.unhcr.org/syrianrefugees/country.php?id=224. Accessed 25 November 2015.
- 153.
See also Mesinneo 2013, at 144.
- 154.
- 155.
International Law Commission, Identification of customary international law, Text of the draft conclusions provisionally adopted by the Drafting Committee, 67th session of the ILC, UN Doc. A/CN.4/L.869, 14 July 2015, para 1. This is particularly important because of Hathaway’s very lengthy argument against words as practice.
- 156.
Ibid., para 2.
- 157.
Ibid., at 3.
- 158.
Ibid.
- 159.
Asylum Case, at 277.
- 160.
M. Wood, Special Rapporteur, Second report on identification of customary international law, UN Doc. A/CN.4/672, 22 May 2014, para 53.
- 161.
It is worth recalling that the rule at issue in the Asylum Case was, in the words of the ICJ, ‘of an exceptional character’ as it ‘involves a derogation from the equal rights of qualification which, in the absence of any contrary rule, must be attributed to each of the States concerned’. Asylum Case, at 275. It is little wonder then that the Court applied a high standard of proof, which was later softened in subsequent decisions.
- 162.
Case relating to Military and Paramilitary Activities in and against Nicaragua, at 14.
- 163.
Ibid.
- 164.
- 165.
See, for example, Turkey, discussed above, which maintains a geographical exception and yet whose domestic law extends to refugees from any region. In addition, as a State Party to the ECHR, it is subject to human rights-based non-refoulement.
- 166.
Hathaway 2010. It should be acknowledged that Hathaway takes a very conservative approach to the identification of customary international law in general, accepting only the prohibition on racial discrimination to be established. Goodwin-Gill is critical of Hathaway’s examples of non-compliance with non-refoulement, arguing that ‘many of his examples involve general interference with the movements of people, rather than the actual return of those in need of protection to situations of persecution or conflict.’ Goodwin-Gill 2014, at 451.
- 167.
Messineo argues that the ‘question of state practice is precisely the one over which Hathaway construes an impossibly high threshold’. Messineo 2013, at 143. See also Henckaerts and Doswald-Beck citing Nicaragua v United States of America and noting that the ICJ’s approach to contrary practice ‘is particularly relevant for a number of rules of international humanitarian law where there is overwhelming evidence of verbal State practice supporting a certain rule found alongside repeated violations of that rule.’ Henckaerts and Doswald-Beck 2009, at 44. See also Goodwin-Gill 2014, at 453. We note that the ILC has recognised that ‘in some cases, a particular form (or particular instances) of practice, or particular evidence of acceptance as law, may be more relevant than in others; in addition, the assessment of the constituent elements needs to take account of the context in which the alleged rule has arisen and is to operate.’ M. Wood, Special Rapporteur, Third report on identification of customary international law, UN Doc. A/CN.4/682, 27 March 2015, at 7–8. In this context, the work of Thirlway is cited, who argues that the element of practice in the special domain of human rights law ‘may be of a different character from that generally required to establish custom.’ See M. Wood, Special Rapporteur, Third report on identification of customary international law, UN Doc. A/CN.4/682, 27 March 2015, note 32.
- 168.
We note that in the context of state practice as relevant to the interpretation of the Refugee Convention (pursuant to Article 31(3)(b) of the Vienna Convention on the Law of Treaties), Hathaway argues that ‘while state practice is often of clear value in the interpretation of bilateral treaties involving purely interstate interests, there are good reasons to read this provision narrowly as a guide to the construction of multilateral treaties in general, and of multilateral human rights in particular’. Hathaway 2005, at 68. While articulated in relation to treaty interpretation rather than the formation of customary international law, it embodies the modern approach to the formation of custom which has been described as a deductive process ‘that begins with statements of rules, rather than particular instances of practice.’ See Goodwin-Gill 2014, at 446 (citing Roberts 2001).
- 169.
UNGA Res. 64/127, 27 January 2010. See also UNGA Res. 33/26, 29 November 1978.
- 170.
UNHCR, Executive Committee Conclusion No 15 (XXX), 16 October 1979, para (b).
- 171.
UNHCR, Executive Committee Conclusion No 50 (XXXIX), 10 October 1988, para (g).
- 172.
UNHCR, Executive Committee Conclusion No 55 (XL) 13 October 1989, para (d), emphasis added. See also UNHCR, Executive Committee Conclusion No 15 (XXX), 16 October 1979.
- 173.
UNHCR, Executive Committee Conclusion No 85 (XLIX), 9 October 1998, para (q). See also UNHCR, Executive Committee Conclusion No 79 (XLVII), 11 October 1996, para (i).
- 174.
See, for example, as early as 1977 a UNHCR conclusion, where it noted that refugees had been subjected to rights abuses such as physical violence, but in describing non-refoulement used distinctive language, viz, ‘measures of forcible return in disregard of the principle of non-refoulement’. UNHCR, Executive Committee Conclusion No 3 (XXVIII), 12 October 1977, para (a).
- 175.
Case relating to Military and Paramilitary Activities in and against Nicaragua, para 206.
- 176.
Ibid., para 207.
- 177.
Ibid., para 208.
- 178.
Ibid., paras 207–208.
- 179.
As Chetail explains, no State ‘claims to possess an unconditional right to return a refugee to a country of persecution.’ Instead, ‘they attempt to justify such conduct by invoking exceptions or by alleging that returnees are not refugees.’ Chetail 2012, at 76–77.
- 180.
C and others v Director of Immigration and another, at paras 66–67 (emphasis in original).
- 181.
The UNHCR notes that cases in which a government has stated to UNHCR that it does not recognise any obligations to act in accordance with the principle of non-refoulement ‘have been extremely rare.’ UNHCR, The principle of non-refoulement as a norm of customary international law: response to the questions posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in cases 2 BvR 1953/93, 2 BvR 1954/93, 31 January 1994, at 6. In the San Remo declaration on the principle of non-refoulement, San Remo, Italy, September 2001 it is observed: ‘The telling point is that, in the last half-century, no State has expelled or returned a refugee to the frontiers of a country where his life or freedom would be in danger—on account of his race, religion, nationality, membership of a particular social group or political opinion—using the argument that refoulement is permissible under contemporary international law. Whenever refoulement occurred, it did so on the grounds that the person concerned was not a refugee (as the term is properly defined) or that a legitimate exception applied.’ Indeed, Hathaway acknowledges that ‘where an effort to justify refoulement is made, states tend to offer only blunt and unsubstantiated assertion that those seeking protection are not refugees, or that the political cost of protection is too high.’ Hathaway 2010, at 518. However, this appears to support the notion that the norm is binding on those states, not the opposite. See also Goodwin-Gill and McAdam 2007 at 353.
- 182.
See M. Wood, Special Rapporteur, Third report on identification of customary international law, UN Doc. A/CN.4/682, 27 March 2015, at 54, para 79.
- 183.
International Law Commission, Identification of customary international law, Text of the draft conclusions provisionally adopted by the Drafting Committee, 67th session of the ILC, UN Doc. A/CN.4/L.869, 14 July 2015, at 2. Draft conclusion 4(5), adopted in 2014, no change proposed in 2015. See M. Wood, Special Rapporteur, Third report on identification of customary international law, UN Doc. A/CN.4/682, 27 March 2015, at 54, para 79.
- 184.
M. Wood, Special Rapporteur, Third report on identification of customary international law, UN Doc. A/CN.4/682, 27 March 2015, at 51, para 75.
- 185.
One of its earliest pronouncements was in the UNHCR’s Principle of non-refoulement as a norm of customary law. UNHCR, The principle of non-refoulement as a norm of customary international law: response to the questions posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1953/93, 2 BvR 1954/93, 31 January 1994. See also UNHCR, Statement on the right to asylum, UNHCR’s supervisory responsibility and the duty of States to cooperate with UNHCR in the exercise of its supervisory responsibility, 2012, para 2.1.2; UNHCR, Advisory opinion on the extraterritorial application of non-refoulement obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, 2007, paras 14–16. See also numerous interventions as amicus in domestic jurisdictions; for example, McNary, Commissioner, INS v Haitian Centers Council, Supreme Court of the United States, October 1992, No. 92-344, Brief Amicus Curiae of the Office of the United Nations High Commissioner for Refugees, at 16–21, http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=3f336bbc4. Accessed 17 December 2015; CPCF v Minister for Immigration [2015] HCA 1, High Court of Australia, Submissions of the Office of the UNHCR, submissions dated 16 September 2014, paras 34–39.
- 186.
UNHCR, The Principle of Non-Refoulement as a Norm of Customary International Law: Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the Federal republic of Germany in Cases 2 BvR 1953/93, 2 BvR 1954/93, 31 January 1994, para 5.
- 187.
Ibid. See also Goodwin-Gill and McAdam 2007, at 351–352.
- 188.
See, for example, Zaoui v. Attorney-General (no 2) [2005] 1 NZLR 690, Glazebrook J, para 34. ‘The prohibition on refoulement, contained in Article 33.1 of the Refugee Convention, is generally thought to be part of customary international law, the (unwritten) rules of international law binding on all States, which arise when States follow certain practices generally and consistently out of a sense of legal obligation.’ We note that in the Supreme Court the issue was not necessary to resolve, although the Court appears to assume that this is correct by noting that because New Zealand is a party to the Convention ‘the customary rule cannot add anything by way of interpretation to the essentially identical treaty provision.’ Attorney-General v. Zaoui (2006) 1 NZLR 289, para 35. The Israeli Supreme Court sitting as a High Court of Justice has held, referring to Article 33 of the Refugee Convention, ‘[t]his is a principle of international customary law that is also manifested in domestic Israeli law, according to which the State of Israel does not remove a person to a place where he faces danger to his life or liberty (see Al-Tai v. Minister of Interior, Pisk ei Din 49(3) 843 (1995)).’ HCJ 7146/12, MAA 1192/13, AAP 1247/13 (2013), para 8, unofficial translation, http://www.refworld.org/cgi-bin/texis/vtx/rwmain/opendocpdf.pdf?reldoc=y&docid=5277555e4. Accessed 20 September 2015. See also Ziegler 2015. We are grateful to Ruvi Ziegler for alerting us to this decision. In R v Immigration Officer at Prague Airport and another ex parte European Roma Rights Centre and others it was unnecessary for the Court to decide this question; hence Lord Bingham referred to ‘that principle, even if one of CIL’, not assisting the applicants in that case. See R v Immigration Officer at Prague Airport and another ex parte European Roma Rights Centre and others, Lord Bingham, para 26. However, his Lordship did refer to the notion that there was ‘general acceptance of the principle’ of non-refoulement. Ibid.
- 189.
C and others v Director of Immigration and another. This litigation is significant as it represents the first clear exposition, at least at common law, of the customary status of non-refoulement. See Jones 2009, at 450.
- 190.
C and others v Director of Immigration and another, para 113.
- 191.
Ibid., para 67. We note that on appeal to the Final Court of Appeal the issue was not raised. Final Appeal Nos 18, 19 & 20 of 2011 (Civil) between C, KMF, BF (Applicants) and Director of Immigration, Secretary for Security (Respondents) and United Nations High Commissioner for Refugees (Intervener), Hong Kong Court of Final Appeal, 25 March 2013.
- 192.
Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC, Judgment pursuant to Article 74 of the Statute, No. ICC-01/04-02/12, 18 December 2012; and Hirsi Jamaa and Ors v. Italy, ECtHR, No. 27765/09, 23 February 2012, Separate Concurring Opinion of Judge Pinto de Albuquerque, para 68.
- 193.
Article 38(1)d) of the 1945 Statute of the International Court of Justice, 33 UNTS 993.
- 194.
M. Wood, Special Rapporteur, Third report on identification of customary international law, UN Doc. A/CN.4/682, 27 March 2015, at 41, para 55.
- 195.
Ibid., at 45, para 65.
- 196.
Council of the International Institute of Humanitarian Law, San Remo Declaration on the principle of non-refoulement, September 2001. The declaration was adopted ‘bearing in mind the Institute’s long-term interest in and association with the development and codification of international law pertaining to the status of refugees’. See also the Summary Conclusions adopted by an Expert roundtable organised by the UNHCR and the Lauterpacht Research Centre for International Law, University of Cambridge, 9–19 July 2001 in which they concluded that, ‘[n]on-refoulement is a principle of customary international law.’ Summary conclusions: the principle of non-refoulement, in Feller et al. 2003, at 178–179.
- 197.
Council of the International Institute of Humanitarian Law, San Remo Declaration on the principle of non-refoulement, Explanatory Note, September 2001.
- 198.
M. Wood, Special Rapporteur, Third report on identification of customary international law, UN Doc. A/CN.4/682, 27 March 2015, at 45, para 65.
- 199.
We note that there is an additional question of scope involving whether the principle applies to both territorial and extraterritorial state action. While beyond the scope of this article to explore in detail, we observe that there is considerable consensus that the principle applies to any conduct attributed to a State, regardless of territorial connection: see Lauterpacht and Bethlehem 2003, at 149–150; see also ‘Summary Conclusions: the principle of non-refoulement’ in Feller et al. 2003, at 178–179.
- 200.
Case relating to Military and Paramilitary Activities in and against Nicaragua, para 205.
- 201.
Ibid. ‘[T]hose aspects of the principle which appear to be relevant to the resolution of the dispute.’
- 202.
UNHCR, Executive Committee Conclusion No 82 (XLVIII), 17 October 1997, para (d)(i). See also UNHCR, Executive Committee Conclusion No 79 (XLVII), 11 October 1996, para (j).
- 203.
See, for example, International Law Association, Resolution 6/2002, Refugee procedures: declaration on international minimum standards for refugee procedures, para 1. ‘BEARING IN MIND the fundamental obligation of States not to return (refouler) a refugee in any manner whatsoever to a country in which his or her life or freedom may be threatened for reasons of race, religion, nationality, membership of a particular social group or political opinion, or in which he or she may be at risk of torture.’ See also Council of the International Institute of Humanitarian Law, San Remo Declaration on the Principle of Non-Refoulement, September 2001, Explanatory Note, in noting that no state has expelled or returned a refugee using the argument that refoulement is permissible refers to returning a refugee ‘to the frontiers of a country where his life or freedom would be in danger- on account to his race, religion, nationality, membership of a particular social group or political opinion.’.
- 204.
Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui.
- 205.
- 206.
Agreeing with Tasioulas 2016.
- 207.
Allain 2002, at 533.
- 208.
Ibid.
- 209.
Ibid., at 539, note 19.
- 210.
Ibid., at 539.
- 211.
UNHCR, Executive Committee Conclusion No 82 (XL), 13 October 1989 (cited by Allain 2002, at 539, note 22).
- 212.
UNHCR, Executive Committee Conclusion No 79 (XLVII), 11 October 1996 (cited by Allain 2002, at 539, note 23).
- 213.
Allain 2002, at 540–541. He states: ‘[a]s long as there is an insistence on the non-derogable nature of non-refoulement, its status is secure.’
- 214.
Ibid., at 540.
- 215.
Orakhelashvili 2006, at 56.
- 216.
Ibid.
- 217.
Ibid.
- 218.
Brazil Declaration and plan of action, 3 December 2014.
- 219.
de Wet 2004, at 101.
- 220.
Hirsi Jamaa and Ors v. Italy, at 67 (citing Article 53 of the Vienna Convention on the Law of Treaties and Article 42 § 1 of the Refugee Convention and Article VII § 1 of the 1967 Protocol).
- 221.
Duffy 2008, at 389–390.
- 222.
Bruin and Wouters 2003, at 7.
- 223.
Wouters 2009, at 30.
- 224.
Dugard and van den Wyngaert 1998, at 198.
- 225.
UNGA Res. 51/75, 12 February 1997.
- 226.
Chinkin 2010, at 113. 0.
- 227.
UNHCR, Executive Committee Conclusion No 16 (XXXI), 9 October 1998, para (e); UNHCR, Executive Committee Conclusion No 21 (XXXII), 21 October 1981, para (f); UNHCR, Executive Committee Conclusion No 22 (XXXII), 21 October 1981, para (2); UNHCR, Executive Committee Conclusion No 33 (XXXV), 18 October 1984, para (c); UNHCR, Executive Committee Conclusion No 74 (XLV), 7 October 1994, para (g); UNHCR, Executive Committee Conclusion No 94 (LIII), 8 October 2002, para (c)(i); UNHCR, Executive Committee Conclusion No 99 (LV), 8 October 2004, para (l); UNHCR, Executive Committee Conclusion No 80 (XLVII), 11 October 1996, para (e)(iii); UNHCR, Executive Committee Conclusion No 100 (LV), 8 October 2004, para (i); UNHCR, Executive Committee Conclusion No 65 (XLII), 11 October 1991, para (c).
- 228.
Zemanek 2001, at 381.
- 229.
Prosecutor v. Anto Furundzija, Trial Chamber, Judgment, Case No. IT-95-17/1-T, 10 December 1998, para 155.
- 230.
Goodwin-Gill and McAdam 2007, at 346, note 421.
- 231.
Lauterpacht and Bethlehem 2003, at 147. In 2015, there are only 13 UN member states that have not signed any of the Refugee Convention or Protocol, the ICCPR or the Convention against Torture. They are as follows: Bhutan, Brunei Darussalam, Cook Islands, Kiribati, Malaysia, Marshall Islands, Micronesia (Federated States of), Myanmar, Niue, Oman, Singapore, Solomon Islands, and Tonga.
- 232.
We note, however, that Tasioulas takes a narrower view of non-derogability, which would not exclude the possibility of treating a norm as non-derogable even if it could be departed from in times of emergency. Tasioulas 2016, at 17.
- 233.
We note that Article 9 of the Refugee Convention contemplates provisional measures ‘in time of war or other grave and exceptional circumstances’ but note that this is not a general derogation clause. As Hathaway notes, the drafters ‘considered, but rejected, an all-embracing power of derogation in time of national crisis.’ Hathaway 2005, at 261.
- 234.
Durieux and McAdam 2004. See also Summary Conclusions: the principle of non-refoulement, in Feller et al. 2003, at 179. ‘The principle of non-refoulement applies in situations of mass influx.’ In contrast, Edwards has argued that such a derogation should be regarded as part of the current law, as an implied derogation allowing for temporary protection or derogation based on subsequent practice. While the practice of temporary protection is widespread, we do not agree that it evidences a ‘derogation’ from the Convention. Edwards 2012.
- 235.
Articles 53 and 64 VCLT.
- 236.
d’Aspremont 2016, at 97 n. 85. ‘This disagreement pertains to the divisibility of treaties found contrary to jus cogens.’
- 237.
See Shelton 2016, at 37.
- 238.
This was raised by the Hong Kong Court of Appeal in C and others v Director of Immigration and another, where the Court stated that if ‘the prohibition on refoulement of refugees is not derogable, there would be real difficulties. It will call into question the validity of Article 33(2) of the RC itself, which permits refoulement if the refugee poses a danger to he security of a receiving state.’ C and others v Director of Immigration and another, para 76.
- 239.
Moore 2014, at 416, n. 11.
- 240.
UNHCR, Executive Committee Conclusion No 82 (XLVIII), 17 October 1997, para (d)(i).
- 241.
In EU law, national judges are required to reinterpret national law ‘so far as possible’ to conform with higher EU norms. This duty originates in Case C–106/89, Marleasing SA v La Comercial Internacionale de Alimentacion SA [1990] ECR I–4135.
- 242.
Orakhelashvili 2006.
- 243.
Farmer 2008.
- 244.
Linderfalk 2009.
- 245.
This norm harmonisation approach already occurs in refugee law, for example, where domestic jurisdictions recognise that non-refoulement applies to extradition treaties. See Goodwin-Gill and McAdam 2007, at 257–262. Another interesting example is provided in Canadian litigation which involved a potential conflict between Canada’s obligations under the Refugee Convention and the Hague Convention on the Civil Aspects of International Child Abduction. The Court of Appeal for Ontario resolved the case on the basis that ‘harmonious effect can be given to both.’ Issasi v. Rosenzweig, 2011 ONCA 302, para 8.
- 246.
Lambert 2012; Foster 2007a; Hurwitz 2009, at 46–66; Government of Canada, Final text of the safe third country agreement, 2009, http://www.cic.gc.ca/english/department/laws-policy/safe-third.asp. Accessed 20 September 2015.
- 247.
Under the ECHR, the leading cases on returns to ostensibly ‘safe’ countries include Tarakhel v. Switzerland, ECtHR, No. 29217/12, 4 November 2014; and Hirsi Jamaa and Others v. Italy. Under the ICCPR, a similar approach has been taken. See Jasin et al. v. Denmark, Human Rights Committee, Communication No. 2360/2014, UN Doc. CCPR/C/114/D/2370/2014, 4 September 2015.
- 248.
Article 26 of the Articles on the Responsibility of States for Internationally Wrongful Acts. International Law Commission, Articles on the Responsibility of States for Internationally Wrongful Acts, 53rd session of the ILC, UNGA Res 56/83, 12 December 2001 (ASR).
- 249.
Article 40 ASR.
- 250.
‘Article 41. Particular consequences of a serious breach of an obligation under this chapter.
1. States shall cooperate to bring to an end through lawful means any serious breach within the meaning of Article 40.
2. No State shall recognize as lawful a situation created by a serious breach within the meaning of Article 40, nor render aid or assistance in maintaining that situation.
3. This article is without prejudice to the other consequences referred to in this Part and to such further consequences that a breach to which this chapter applies may entail under international law.’
- 251.
See discussion of Article 41 ASR in Wyler and Castellanos-Jankiewicz 2014, at 304–305. They note that while the legal status of the duty of cooperation enshrined in Article 41(1) ASR is ‘rather indeterminate’, there is authority to suggest it is anchored in legal obligation. Wyler and Castellanos-Jankiewicz 2014, at 305. In particular, the ICJ stated in its Advisory Opinion Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, that ‘[i]t is also for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end.’ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, para 159. See also ibid., para 160.
- 252.
- 253.
Indeed, Gammeltoft-Hansen and Hathaway point out that states which are not party to the Refugee Convention often have ‘cognate’ non-refoulement obligations under other treaties such as the ICCPR and CAT. Unsurprisingly, they do not rely on the customary status of non-refoulement. Gammeltoft-Hansen and Hathaway 2015, at 282.
- 254.
Ibid., at 276.
- 255.
- 256.
- 257.
See, for example, Allain 2002.
- 258.
In legal terms, on their face as Jaquemet has analysed, the criticised UN Security Council resolutions generally endorse the prohibition of refoulement. Jaquemet 2014.
- 259.
‘Safe haven practices’ are forever haunted by Srebrenica. The ECtHR ruling in Stichting Mothers of Srebrenica and Others v. The Netherlands, discussed below, is just one of the many attempts of relatives of the victims to find redress. Stichting Mothers of Srebrenica and Others v. The Netherlands, ECtHR, No. 65542/12, 11 June 2013. See further Long 2012; and Orchard 2014.
- 260.
UNSC Res. S/RES/2240, 9 October 2015, at 3, para 2.
- 261.
Ibid., para 7.
- 262.
Ibid., para 8.
- 263.
Ibid., para 10.
- 264.
Hirsi Jamaa and Ors v. Italy.
- 265.
UNSC Res. S/RES/2240, 9 October 2015, paras 12, 13 and 15.
- 266.
Tzanakopoulous 2011.
- 267.
Juridical Condition and Rights of the Undocumented Migrants.
- 268.
Case T-315/01, Yassin Abdullah Kadi v Council and Commission [2005] ECR–3649, para 226.
- 269.
Case T-512/12, Front Polisario v. Council of the European Union, General Court of the European Union, 10 December 2015.
- 270.
Vigigal 2015.
- 271.
- 272.
Chinkin 2008.
- 273.
Mananashvilli 2015.
- 274.
See, for example, Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v Rwanda), ICJ, Jurisdiction and Admissibility, 3 February 2006.
- 275.
Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening). Note the dissenting opinion of Judge Cancado Trindade, who was the sole dissenting judge on the question of whether jus cogens overrode state immunity. Ibid., Dissenting Opinion of Judge Cancado Trindade.
- 276.
Al-Adsani v. United Kingdom, ECtHR, No. 35763/97, 21 November 2001, para 61. Cf. ibid., Joint Dissenting Opinions of Judges Rozakis, Caflisch, Joined by Judges Wildhaber, Costa, Cabral Barreto and Vajic.
- 277.
de Wet 2004.
- 278.
Al-Adsani v. United Kingdom, Joint Dissenting Opinions of Judges Rozakis, Caflisch, Joined by Judges Wildhaber, Costa, Cabral Barreto and Vajic, para 3.
- 279.
See discussion in Greenman 2015.
- 280.
Menendez 2015.
- 281.
See Stichting Mothers of Srebrenica and Others v. The Netherlands, para 169. ‘[T]he grant of immunity to the UN served a legitimate purpose and was not disproportionate.’
- 282.
Ventura and Akande 2013.
- 283.
See Stichting Mothers of Srebrenica and Others v. The Netherlands, para 157. ‘The Court has recognised the prohibition of genocide as a rule of jus cogens.’
- 284.
Judge v. Canada, Human Rights Committee, Communication No. 829/1998, UN. Doc. CCPR/C/78/D/829/1998, 20 October 2003, para 10.4.
- 285.
de Wet 2004, at 97–121 and 114.
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Costello, C., Foster, M. (2016). Non-refoulement as Custom and Jus Cogens? Putting the Prohibition to the Test. In: Heijer, M., van der Wilt, H. (eds) Netherlands Yearbook of International Law 2015. Netherlands Yearbook of International Law, vol 46. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-114-2_10
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