Non-refoulement as Custom and Jus Cogens? Putting the Prohibition to the Test

Costello, Cathryn; Foster, Michelle

doi:10.1007/978-94-6265-114-2_10

Cited by 25 publications

(18 citation statements)

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“…From the angle of general international law, the prohibition of return in case of torture, cruel, inhuman and degrading treatment is part of customary international law (Chetail, 2019, pp. 119–124; Costello and Foster, 2015, pp. 273–327).…”

Section: The Global Compact For Migration: a Consolidation Of The Basmentioning

confidence: 99%

The Global Compact for Safe, Orderly and Regular Migration: a kaleidoscope of international law

Chetail

2020

International Journal of Law in Context

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The Global Compact for Safe, Orderly and Regular Migration has prompted an intense political debate at both the international and domestic levels. Most controversies focus on its legal stance and highlight the hybrid character of the Compact as a soft-law instrument. While acknowledging the political nature of the Compact, this paper delves into its legal dimensions from the perspective of international law. This inquiry into its normative content discloses three main features: (1) the Compact is not a codification of international legal norms governing migration; it is an instrument of both (2) consolidation and (3) expansion of international law to foster inter-governmental co-operation and promote safe, orderly and regular migration.

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Section: The Global Compact For Migration: a Consolidation Of The Basmentioning

confidence: 99%

The Global Compact for Safe, Orderly and Regular Migration: a kaleidoscope of international law

Chetail

2020

International Journal of Law in Context

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“…Specifically, it is Article 13 of the iccpr that deals with the modalities of expelling lawfully staying aliens, as interpreted by the general comments and the quasi-jurisprudence of its treaty-body, the Human Rights Committee (hrc).21 The 1984 Convention Against Torture (cat) is a similar international treaty source of inspiration, ratified by all EU Member States, which expressly sets out the universally accepted obligation of non-refoulement (Article 3), protecting any person present under a State's jurisdiction from refoulement. This explicit prohibition, coupled with Articles 6-7 of the iccpr as interpreted by the hrc, has made non-refoulement an integral component of the prohibition of torture and cruel, inhuman or degrading treatment or punishment, having now the rank of general customary international law (Lauterpacht and Bethlehem, 2003;Goodwin-Gill and McAdam, 2007;Costello and Foster, 2016). Other universally ratified treaties can also be mentioned, such as the 1989 Convention on the Rights of the Child (crc), enshrining, amongst others, a cornerstone and overarching child protection principle, the best interests of the child (Article 3).…”

Section: Relevance Of International (Human Rights) Law For Eu Return mentioning

confidence: 99%

The Place and Role of International Human Rights Law in the EU Return Directive and in the Related cjeu Case-Law: Approaches Worlds Apart?

Molnár¹

2018

EU External Migration Policies in an Era of Global Mobilities: Intersecting Policy Universes

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“…25 For a seminal analysis, see Fortin 2015. 26 Costello and Foster 2016. that the prohibition of torture, indeed, constituted a jus cogens obligation. 27 Moreover, the ICJ has drawn a distinction between substantive and procedural norms in the Germany v. Italy case, damping excited hopes that the bulwark of (state) immunity could be demolished in case of violation of peremptory norms.…”

Section: Jus Cogens and Human Rightsmentioning

confidence: 99%

“…Compare the contributions of Vadi 2016;Costello and Foster 2016;Cottier 2016; and Kotzé 2016. 3 Meron 2006.…”

mentioning

confidence: 99%

“…11 See, for instance,Koskenniemi 2005, at 113 and 122 (disqualifying it as 'kitsch'). 12 See Vadi 2016; Cottier 2016;Costello and Foster 2016;and Kotzé 2016. While these authors do not necessarily agree with the expansion of jus cogens in the area that they analyse, they convincingly demonstrate that its role is increasing.13 For an impressive enumeration, describing it as the 'creative pull of jus cogens', see d'Aspremont 2016, at 95.…”

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confidence: 99%

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Jus Cogens and the Humanization and Fragmentation of International Law

Heijer

Wilt

2016

Netherlands Yearbook of International Law

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This editorial explores how two developments-the humanization and fragmentation of international law-permeate all aspects of jus cogens: its foundations, content and consequences. The authors are particularly intrigued by the question of how the unceasing popularity of jus cogens can be reconciled with its limited role in legal practice. It has often been observed that jus cogens owes its proliferation to the increased focus on human rights. This, in turn, has yielded two effects. First, such focus on human rights has triggered greater attention for the enforcement of peremptory norms. Secondly, it has put the responsibility of nonstate actors for violation of jus cogens norms on the agenda. It may not be too farfetched to understand the reticence of states to accept the expansion of jus cogens and its effects against the background of the fear that this will weaken the power of the state, whereas one might argue that the state is rather in need of reinforcement, in view of the manifold challenges it is confronted with. Next to the process of 'humanization' of international law, the appeal of jus cogens can be explained from the international lawyer's desire for a single and coherent system of law, including a more clearly established hierarchy of norms. This aspiration is primarily infused by the concern for 'fragmentation' of international law. However, as in the case of humanization, countervailing factors prevent a further expansion of jus cogens in international law. For one thing, jus cogens, belonging to the realm M. den Heijer (*)

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Non-refoulement as Custom and Jus Cogens? Putting the Prohibition to the Test

Cited by 25 publications

References 50 publications

The Global Compact for Safe, Orderly and Regular Migration: a kaleidoscope of international law

The Global Compact for Safe, Orderly and Regular Migration: a kaleidoscope of international law

The Place and Role of International Human Rights Law in the EU Return Directive and in the Related cjeu Case-Law: Approaches Worlds Apart?

Jus Cogens and the Humanization and Fragmentation of International Law

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